State v. Schlinger

216 N.W.2d 835 (1974)

STATE of Minnesota, Respondent, v. Judith C. SCHLINGER, Appellant.

No. 44161.

Supreme Court of Minnesota.

April 5, 1974.

Olkon & Olkon and Ellis Olkan, Minneapolis, for appellant.

R. Scott Davies, City Atty., A. Keith Hanzel, Daniel L. Ficker, Michael T. DeCourcy, Asst. City Attys., St. Paul, for respondent.

Considered and decided by the court without oral argument.

*836 PER CURIAM.

Defendant, found guilty by a St. Paul municipal court jury of driving while under the influence of an alcoholic beverage, Minn.St. 169.121, appeals from the order denying her motion for a new trial. Defendant contends that the trial court committed prejudicial error in admitting, over objection, evidence that defendant had refused to submit to chemical testing. We believe that this case is indistinguishable on its facts from the recent case of State v. Andrews, Minn., 212 N.W.2d 863 (1973), in which we held that in a prosecution under § 169.121 the trial court committed prejudicial error in admitting such evidence. Because we cannot distinguish this case and because we are not disposed to overrule the Andrews case, we reverse the lower court's order and grant defendant a new trial.

Reversed and new trial granted.