¶1(dissenting).
¶2In my opinion the judgment of conviction and sentence should be affirmed.
¶3For the reasons stated in the majority opinion, the testimony alluding to the defendant’s refusal to take a urinalysis test was inadmissible. However, the error was promptly corrected by the trial court in immediately instructing the jury to disregard the question and answer pursuant to the objection made. A new trial should not ordinarily be granted for the erroneous admission of evidence where the jury is clearly and distinctly instructed to disregard it. See, e. g., Zuber v. N. P. Ry. Co. 246 Minn. 157, 176, 74 N. W. (2d) 641, 655. In almost every lawsuit errors in the admission of evidence occur and “when the trial judge does all that can be done to correct the error, this court should be slow to order a retrial.” State v. Watzek, 158 Minn. 351, 353, 197 N. W. 669, 670. There are occasionally situations where the prejudicial effect of erroneously admitted evidence is so great that the error cannot be sufficiently cured by instructions to the jury. See, 14 Dunnell, Dig. (3 ed.) § 7207. But as Mr. Justice Holt said in Town of Wells v. Sullivan, 125 Minn. 353, 356, 147 N. W. 244, 245:
*34“… No one familiar with the trial of law suits will contend that a verdict must be overturned whenever it is made to appear that objectionable testimony found temporary lodgment, although the jury were promptly instructed to disregard the same as soon as the error was perceived by the court. Ordinarily it is to be presumed that the jury is able to heed such instructions and that no prejudice follows. Were the rule otherwise few verdicts could ever stand, and trials would become a mockery.”
¶4It is exceedingly doubtful that the testimony here involved was of such a highly prejudicial nature that the court’s instruction did not cure it. But assuming that it was, the defendant, having failed to make timely objection to the testimony, is in no position to assert this argument. The objectionable character of the evidence was clearly foreseeable, not only from the question asked but also from the preceding question and answer. The defendant does not contend, nor does the record show, that the question was answered too quickly to permit timely objection. Under such circumstances it was incumbent upon the defendant to interpose his objection before the question was answered and the damaging testimony given to the jury. McCormick, Evidence, § 52; 1 Wigmore, Evidence (3 ed.) § 18. Since the prejudice, if any, resulted from the defendant’s belated objection, it is not a sufficient basis for granting a new trial.
¶5I also disagree with the conclusion reached by the majority that the trial court exceeded its authority in suspending the defendant’s sentence upon condition that he pay the jury fees amounting to $196.80. Unlike punishment imposed by sentence, there is no obligation on the part of a defendant to accept the conditions of suspension. If he feels the conditions of suspension to be onerous, he can simply reject the offer. Minn. St. 631.48 and 610.38 are not, in my opinion, in pari materia. Frequently courts impose “terms and conditions of probation” to the suspension of a sentence that would not be authorized if they were a part of the .sentence itself. It seems obvious that if the court’s power to impose “terms and conditions” is to be limited to authorized sentences, § 610.38 becomes meaningless.
¶6In addition to the expert testimony of intoxication, the evidence *35showed that the defendant was driving his car at an excessive speed and in an erratic manner; that when he stopped his car in response to the officer’s signal he hit the guardrail, damaging the paint on the fender; that he was unsteady in walking; that there was a strong odor of alcohol on his breath; that his face was flushed, his eyes bloodshot, and his speech slurred and rambling. This evidence is clearly adequate to sustain the conviction and, in the absence of prejudicial error, a new trial is not warranted.