In Commonwealth v. Andrew, 2007 MP 25 P 1 n.1, 7 N. Mar. I. 515, the Court decided evidence was insufficient to convict a driver of driving under the influence of alcohol. The evidence against the driver only included the smell of alcohol on his breath and a refusal to take a breathalyzer test. Id. P 9.

There was "no evidence of erratic driving typically associated with intoxication and no evidence of physical or mental impairment throughout an extended period of police observation during and after the traffic stop." Id. P 10.

Based on the scant evidence presented, we could not say beyond a reasonable doubt that Andrew drove under the influence of alcohol. Id. P 9.

"In the Commonwealth, drivers are prohibited from operating a vehicle with a blood alcohol concentration of 0.08% or greater, or driving under the influence of alcohol to any degree that renders the driver incapable of safely driving." Andrew, 2007 MP 25 P 5, 7 N. Mar. I. 515. A driver impliedly consents to a breath test for alcohol. Id.

"If a driver refuses to submit to a breath test, evidence of refusal is admissible at trial, and the driver's license can be revoked for six months." Id.

The trier of fact can consider a driver's refusal to take a breath test, "along with other evidence, in determining the driver's guilt of driving under the influence." Id.