Defendant was charged with DUI and Refusing to Submit to a DUI Breath Test. Defendant went to trial on the refusal to submit to breath test and was found not guilty. Defendant then went on trial for the DUI and asked the court to exclude evidence that he refused the breath test due being found not guilty. The Court granted the Defendant's request and excluded the refusal.

The State appealed and the appellate court reversed the trial court's ruling finding that determination of whether a person refused a breath test in a prosecution for refusing to submit is based upon factors that are not identical to those considered when determining admissibility of refusal evidence in a DUI prosecution. Refusal to submit was admissible as evidence of consciousness of guilt where defendant testified that he refused to submit to breath test and that he as told refusal would result in suspension of driving privilege.

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