This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-00-1349

 

Duane Arthur Dalbec,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed February 13, 2001

Affirmed

Willis, Judge

 

Meeker County District Court

File No. C2000139

 

Gary R. Leistico, Rinke-Noonan, 700 Wells Fargo Center, P.O. Box 1497, St. Cloud, MN  56302 (for appellant)

 

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

 

            Considered and decided by Shumaker, Presiding Judge, Willis, Judge, and Holtan, Judge.*


U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges the district court’s order sustaining the revocation of his driver’s license.  He contends that by giving him incorrect and misleading information, the arresting officer “prevented or denied” an additional chemical test under Minn. Stat. § 169.123, subd. 3 (1998).[1]  Because the district court correctly concluded that the officer’s conduct did not prevent or deny an additional test, we affirm.

FACTS

            In December 1999, appellant Duane A. Dalbec was arrested for driving while intoxicated (DWI).  Jason Abbott, the arresting officer, took Dalbec to the Meeker County jail, where he was read the implied-consent advisory.  Prior to being given a chemical test for intoxication, Dalbec indicated that he wanted to speak to an attorney, and a telephone was made available to him.  Dalbec called an attorney, who gave him the following advice:  (1) take the test at the direction of the officer, (2) request an additional test, and (3) do not answer any questions.  Dalbec agreed to submit to a urine test and then asked Officer Abbott about an additional test.  During this conversation, Officer Abbott gave him incorrect information about the requirements for an additional test, telling Dalbec that a “licensed company” had to administer the test using a “legal” container.  The officer then corrected himself and explained, on three separate occasions, that “somebody” of Dalbec’s choice could come to the police station to collect a sample for the additional test.  Dalbec did not take an additional test.

            The Commissioner of Public Safety revoked Dalbec’s driver’s license.  Dalbec then petitioned for judicial review, arguing that he was confused by the officer’s misstatements and did not understand “what his rights were in regard to an additional test.”  The district court found that Officer Abbott did not violate Dalbec’s statutory right to an additional test and sustained the Commissioner’s revocation of Dalbec’s license.  Dalbec appeals.

D E C I S I O N

Generally, the district court’s findings of fact must be sustained unless clearly erroneous.  Frost v. Commissioner of Pub. Safety, 348 N.W.2d 803, 804 (Minn. App. 1984).  Where, as here, the facts are undisputed, question of whether the police prevented or denied an additional test is a question of law.  Haveri v. Commissioner of Pub. Safety, 552 N.W.2d 762, 765 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).  This court will overturn a district court’s conclusions of law only if the district court wrongly applied the law to the facts of the case.  Dehn v. Commissioner of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986).

            In Minnesota, a person arrested for DWI

has the right to have someone of the person’s own choosing administer a chemical test or tests in addition to any administered at the direction of a peace officer; provided, that the additional test sample on behalf of the person is obtained at the place where the person is in custody, after the test administered at the direction of a peace officer, and at no expense to the state.

 

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 a peace officer unless the additional test was prevented or denied by the peace officer.

 

Minn. Stat. § 169.123, subd. 3(a), (b) (1998) (emphasis added).  Dalbec asserts that he was confused and misinformed by the officer’s instructions and that, therefore, an additional test was prevented or denied by the officer.  Officer Abbott made two incorrect statements to Dalbec: (1) that the additional test would have to be administered by a “licensed company” and (2) that the sample would have to be collected in a “legal container.”  But shortly after making these statements, the officer corrected himself and said:

If you want a friend to come in here with a mayonnaise jar you can do it. * * * If you want a friend of yours to come in here with a container, go ahead. * * * If you want to call somebody and have them come in with a container, we can do it.

 

When deciding whether an additional test has been prevented or denied, courts have distinguished between an officer’s failure to assist efforts to obtain an additional test and an officer’s “hampering an attempt to obtain such a test.”  Haveri, 552 N.W.2d at 765 (citation omitted).  Here, the district court concluded that the officer’s “statements or action did not prevent or deny [Dalbec] from having an additional chemical test performed.”  We agree.

            First, an officer is not required to instruct a person arrested for DWI on his right to obtain a chemical test in addition to the test administered at the direction of the officer or how to obtain such a test.  Ruffenach v. Commissioner of Pub. Safety, 528 N.W.2d 254, 256-57 (Minn. App. 1995).  The only obligation an officer has is to allow the person arrested the use of a telephone.  Cosky v. Commissioner of Pub. Safety, 602 N.W.2d 892, 894 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000).  Here, Officer Abbott allowed Dalbec to use a telephone to contact an attorney before administering the chemical test, and he later asked Dalbec if he wanted to call the attorney again to clarify the additional-test requirements.  Therefore, Officer Abbott fulfilled his statutory obligation by allowing Dalbec the continued use of a telephone to consult with his attorney.

            Although police should strive to provide accurate information, inaccurate information, in and of itself, does not warrant reversal.  See McDonnell v. Commissioner of Pub. Safety, 473 N.W.2d 848, 854 (Minn. 1991) (explaining that statements regarding testing must be “actively” misleading before courts will consider whether those statements prevented or denied additional test).  For example, in one case, a police officer misinformed the appellant that additional testing was available only upon his release from custody. Hotchkiss v. Commissioner of Pub. Safety, 553 N.W.2d 74, 78 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).  The appellant argued that the officer’s response to his question about obtaining an additional test was inaccurate and misleading, and thus prevented or denied an additional test.  Id. at 77.  But this court held that because the officer’s response to the appellant’s “general inquiry” was “not actively misleading and did not * * * hamper [his] attempt to obtain additional testing” while in custody, the officer did not prevent or deny the opportunity for additional testing.  Id. at 78.

In another case, a driver arrested for DWI alleged that the officer prevented her from obtaining an additional test by setting forth the “additional requirement” that the test be administered at the police station.  Schmidt v. Commissioner of Pub. Safety, 486 N.W.2d 473, 476 (Minn. App. 1992).  Although this information was incorrect, this court held that the officer’s statements were not actively misleading because they could not “be characterized as an attempt to misstate the law in order to hamper [her] right to obtain additional tests.”  Id.  Here, the officer initially gave Dalbec incorrect information but then corrected himself.  He told Dalbec three times that he could have “someone” or “anyone” come to the station and collect a sample for the additional test.  Dalbec has failed to explain how Officer Abbott’s statements were actively misleading and thus prevented him from obtaining, or denied him the right to, an additional test.  He only contends that he “didn’t really understand” what his rights were.  But, as the supreme court has held, an “attorney, not a police officer, is the appropriate source of legal advice.”  Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 833 (Minn. 1991). 

Finally, Dalbec asserts that Officer Abbott prevented or denied an additional test by asking Dalbec why he wanted another test when one had already shown that he was intoxicated.  Asking Dalbec why he wanted another test did not hamper Dalbec’s ability to obtain an additional test or actively mislead him.  See Haveri, 552 N.W.2d at 765; McDonnell, 473 N.W.2d at 854.

The district court correctly determined that Officer Abbott did not prevent or deny an additional chemical test.

            Affirmed.

           



                * 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] This provision is now found in Minn. Stat. § 169A.51, subd. 7(b) (2000).  Because Dalbec’s claim was filed and the district court issued its decision before January 1, 2001, the effective date of the change, we use the previous citation.