Opinion
No. CO-98-776.
Filed November 24, 1998.
Appeal from the District Court, Hennepin County, File No. IC 474973.
David DeSmidt, (for appellant).
Hubert H. Humphrey III, Attorney General, Kelly S. Kemp, Assistant Attorney General, (for respondent).
Considered and decided by Amundson, Presiding Judge, Foley, Judge, and Thoreen, Judge.
Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.
Retired judge of the district court, serving as judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
FACTS
After Kuehn was arrested, he called an attorney who advised him to obtain an independent blood test. Kuehn began calling hospitals to assist him in obtaining a blood test. According to Kuehn, he reached someone who was willing to administer a blood test, if approved by the troopers, but the troopers refused to speak to hospital personnel and ended Kuehn's conversation to administer the breath test.
After Kuehn failed a breath test, the troopers offered Kuehn a BCA urine kit to preserve a sample of urine for additional testing. Kuehn used the test and the sample was stored with his other belongings while he was in custody and returned to him upon his release. According to Kuehn, after his release he could not find anyone to analyze the sample because of the absence of an acceptable and documented chain of custody.
While Kuehn consented to the breath test, he claims that he was concerned that his diabetes might affect the outcome of the Intoxilyzer test. Therefore, he was especially interested in obtaining an independent blood test and claims that the urine sample was not sufficient, considering the problems involved in getting the urine sample analyzed.
DECISION
In addition to the test administered at the direction of the officer, the implied consent law provides that a person is entitled to have someone of the person's own choosing administer an independent chemical test or tests. Minn. Stat. § 169.123 subd. 3(a) (1996). However, this entitlement does not automatically preclude the admission of the evidence of a breath test indicating an alcohol concentration of more than .01 if the driver does not obtain the additional test. See id. , subd. 4(e) (Supp. 1997) (providing for license revocation when test results indicate alcohol concentration of .10 or more).
The failure or inability to obtain an additional test or tests by a person shall not preclude the admission in evidence of the test taken at the direction of the peace officer unless the additional test was prevented or denied by the peace officer. Id. , subd. 3(b) (1996) (emphasis added).
For Kuehn to prevail, he must establish that he was denied or prevented from obtaining an additional test. This court has previously distinguished between situations where a law enforcement officer "failed to assist" and those where the officer "hampered an attempt" to obtain an additional test. Theel v. Commissioner of Pub. Safety , 447 N.W.2d 472, 474 (Minn.App. 1989), review denied (Minn. Jan. 8, 1990). An officer is not required to assist a driver by furnishing supplies or transportation to facilitate an additional test. Id. ; State v. Hatlestad , 347 N.W.2d 843, 845 (Minn.App. 1984).
The only affirmative obligation imposed on an officer to help a driver obtain additional testing is to provide for the use of a telephone. State v. Streitz , 276 Minn. 242, 243, 150 N.W.2d 33, 34 (1967). More importantly, in light of the specific facts of this case, an officer is not required to speak to a doctor on the telephone. Frost v. Commissioner of Pub. Safety , 348 N.W.2d 803, 805 (Minn.App. 1984). Therefore, Kuehn's argument rebuking the officer for refusing to speak to hospital personnel is without merit.
Kuehn further argues that his diabetes affected the results of the Intoxilyzer test and that is why he needed an independent blood test. However, Kuehn failed to prove that his diabetes affected the results of his breath test or that the breath test was in any way deficient or lacking in reliability.
The district court's findings of fact will not be overturned unless clearly erroneous. Minn.R.Civ.P. 52.01. The district court found: (1) Kuehn was given access to a telephone and given telephone books; (2) he called an attorney and received advice to obtain an additional blood test; (3) Kuehn called three hospitals in an attempt to find someone to administer an additional test; and (4) he was offered and used a BCA urine kit to preserve a urine sample for later testing.
There is sufficient evidence in the record to support the district court's conclusions there was no evidence or finding that Kuehn's diabetes invalidated the breath test, and the troopers provided the required assistance, while in no way hampering or preventing additional testing.