This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).






State of Minnesota,


Bruce George Stender,


Filed November 14, 2000


Stoneburner, Judge


Carver County District Court

File No. K198800


Peter A. C. Ivy, Assistant Carver County Attorney, Carver County Attorneys’ Office, 600 East Fourth Street, Chaska, MN 55318; and


Mike Hatch, Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103 (for respondent)


Richard L. Swanson, 1059 Stoughton Avenue, Box 85, Chaska, MN 55318 (for appellant)


            Considered and decided by Stoneburner, Presiding Judge, Foley, Judge,* and, Mulally, Judge.**




Appellant Bruce George Stender argues that the district court erred in failing to suppress results of his chemical test for intoxication because deputies prevented him from obtaining an independent test pursuant to Minn. Stat. § 169.123, subd. 3(a), (b) (1998).  Because the deputies did not prevent Stender from obtaining an additional test, we affirm.



A person tested under the implied consent law has the right to have someone of the person’s own choosing administer a chemical test in addition to any state-administered test.  Minn. Stat. § 169.123, subd. 3(a) (1998).  When this right is prevented or denied by a peace officer, the results of the state-administered test are inadmissible.  Id. at subd. 3(b); see, e.g., State v. Shifflet, 556 N.W.2d 224, 228 (Minn. App. 1996) (holding chemical test results inadmissible where individual arrived at jail to obtain appellant’s urine sample but was denied access for three hours and finally told he would not be permitted to conduct additional test).

At the suppression hearing, the parties presented conflicting testimony as to whether a deputy told Stender’s girlfriend over the phone that she should not come to the jail until they finished booking Stender and that a deputy would contact her when to come and administer Stender’s additional test.  The district court assesses the credibility of witnesses and weighs conflicting testimony, and we must defer to the district court’s credibility determinations unless clearly erroneous.  Minn. R. Civ. P. 52.01; Frost v. Commissioner of Pub. Safety, 348 N.W.2d 803, 804 (Minn. App. 1984); see State v. Kvam, 336 N.W.2d 525, 529 (Minn. 1983)(indicating finding is clearly erroneous if appellate court, “after reviewing the record, reaches the firm conviction that a mistake was made”).  Stender argues that the deputies prevented his additional test by telling his girlfriend not to come to the jail until they called her after Stender’s booking was complete.  The district court made a factual finding that the deputies did not obligate themselves to call Stender’s girlfriend.

We decline to usurp the role of the district court in assessing the credibility of testimony.  A review of the record shows that the district court did not clearly err in finding that the deputies did not obligate themselves to call Stender’s girlfriend.  The girlfriend fell asleep and did not come to the jail until after Stender had been transported to a detoxification center in Hastings.

            Given that the district court credited the deputies’ testimony, the question of whether police prevented or denied an additional test is a question of law.  See, e.g., Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985) (noting where district court accepted police officer’s testimony as true, validity of the stop was a legal determination); Brooks v. Commissioner of Pub. Safety, 584 N.W.2d 15, 17 (Minn. App. 1998), review denied (Minn. Nov. 24, 1998) (“A district court’s conclusion of law will be overturned only if it erroneously applied the law to the facts.”) (citation omitted).

In determining whether police have prevented or denied a defendant’s right to an additional test, we distinguish between an officer’s failing to assist and an officer’s hampering an attempt to obtain an additional test.  Haveri v. Commissioner of Public Safety, 552 N.W.2d 762, 765 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).  This court has consistently held that “[t]he only obligation an officer has in assisting the defendant in obtaining an additional test is to allow defendant use of a phone.”  Frost, 348 N.W.2d at 804 (citation omitted); Cosky v. Commissioner of Pub. Safety, 602 N.W.2d 892, 894 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000); Haveri, 552 N.W.2d at 765; Umphlett v. Commissioner of Pub. Safety, 533 N.W.2d 636, 638-39 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995). 

Here, Stender asked to contact an attorney and a deputy provided him with a phone and phone books.  After talking with his attorney, Stender consented to the state’s Intoxilyzer test and asked for an additional test.  The deputy told Stender that he would have to make those arrangements himself.  See Haveri, 552 N.W.2d at 765 (noting police “need not act affirmatively to facilitate the test”).  The deputy also told Stender that he could get an additional test after he was released.  According to Carver County policy, anyone testing below .20 blood-alcohol content on the Intoxilyzer is released, while anyone registering above .20 is sent to the detoxification center in Hastings.  After Stender tested above .20, the deputy returned Stender to the interview room where he had previously used the phone to contact his attorney.  The deputy completely fulfilled his obligation to Stender by giving him access to a phone.  Frost, 348 N.W.2d at 804; see Hager v. Commissioner of Pub. Safety, 382 N.W.2d 907, 911-12 (Minn. App. 1986) (stating officer owes no duty to arrange opportunity for defendant to obtain additional test).

The deputy’s failure to inform Stender of Carver County’s policy of not releasing motorists who register above .20 does not rise to the level of “actively misleading.”  See Hotchkiss v. Commissioner of Pub. Safety, 553 N.W.2d 74, 78 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996) (holding police officer’s misstatement that additional testing available only upon defendant’s release was not “actively misleading” so as to hamper defendant’s effort to obtain additional test); Schmidt v. Commissioner of Pub. Safety, 486 N.W.2d 473, 476 (Minn. App. 1992)(holding police did not attempt to “actively” mislead defendant to hamper defendant’s right to obtain additional test); cf. Fehler v. Commissioner of Pub. Safety 591 N.W.2d 752, 754 (Minn. App. 1999) (indicating due process violated where police officer actively misleads defendant about statutory obligation to submit to alcohol testing) (citing McDonnell v. Commissioner of Pub. Safety, 473 N.W.2d 848, 853 (Minn. 1991)); Short v. Commissioner of Pub. Safety, 422 N.W.2d 40, 42 (Minn. App. 1988) (holding defendant’s right to additional test not prevented despite jailer’s misleading statements that additional tests were not allowed at the jail).  The record shows nothing deliberately deceptive on the deputy’s part.  Moreover, although incomplete as to Carver County policy, the information was legally accurate.  See Frost, 348 N.W.2d at 805 (“Once released, a person can obtain any kind of test desired, anywhere he chooses.”).[1]

Stender relies on Theel v. Commissioner of Pub. Safety, 447 N.W.2d 472 (Minn. App. 1989), review denied (Minn. Jan. 8, 1990), claiming this court held that police misinformation prevented Theel’s additional test.  Stender distorts Theel’s holding.  In Theel, the defendant, in an effort to obtain an additional test, asked “Well, can I have an attorney then?”  447 N.W.2d at 473 (quotation omitted).  The police replied, “Forget it.  They’re all sleeping.”  Id. (quotation omitted).  At the core of the Theel decision is the concept that police refused to allow the defendant to call an attorney, despite his specific request for an attorney to assist him in obtaining an additional test.  Id. at 473-74.  As a result, this court held that police prevented the defendant’s additional test.  Id. at 474.

Here, by contrast, the deputies provided Stender with a phone and phone books, and Stender called his attorney, who advised him to request an additional test.  Unlike the scenario in Theel, the deputies here did not prevent Stender from contacting an attorney.

Finally, Stender claims that police violated his right to an additional test by releasing him to detox before his girlfriend could arrive to administer an additional test.  As stated in Frost, however, “[a]n officer has no duty to continue to hold a person in custody until additional tests can be administered.”  348 N.W.2d at 805.  The deputies were not obligated to hold Stender at the jail until he could obtain an additional test. 

The district court did not err in its application of law when it determined that Carver County deputies neither prevented nor denied Stender’s right to an additional test.


* 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 by appointment pursuant to Minn. Const. art. VI, § 10.

[1] In fact, “‘[a]n attorney, not a police officer, is the appropriate source of legal advice’ regarding the alternative choices at the chemical testing stage of DWI proceedings.”  Hotchkiss, 553 N.W.2d at 78 (citation omitted).  Here, Stender consulted with his attorney before requesting an additional test.  Even assuming the deputy’s comments were misleading, the deputy was under no duty to advise him as to the various means of obtaining an additional test.