This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-01-1749

 

Danny H. Johnson, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed June 11, 2002

Affirmed

Gordon W. Shumaker, Judge

 

Sherburne County District Court

File No. C1011014

 

 

 

 

Matthew E. Engelking, Engelking Law Office, 110 Mill Place, 111 Third Avenue South, Minneapolis, MN 55401 (for appellant)

 

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

 

 

 

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

 

U N P U B L I S H E D†† O P I N I O N

 

GORDON W. SHUMAKER, Judge

 

Appellant challenges the district courtís ruling that the police did not obstruct or interfere with appellantís right to obtain independent alcohol testing after the police arrested him for driving while under the influence.† Because the courtís ruling was not erroneous, we affirm.

FACTS

 

After a state trooper received a tip that a motor vehicle was being driven erratically, he stopped appellant Danny Harold Johnsonís Jeep Cherokee.† The trooper concluded that Johnson was under the influence of alcohol, arrested him, and took him to the Sherburne County jail.

At the jail, the trooper read an implied-consent advisory to Johnson, who then agreed to take a breath test.† The trooper administered the intoxilyzer at 1:37 a.m.† It showed an alcohol concentration of .20.

Upon hearing the test result, Johnson was incredulous and said, ďThat canít be right.† Iíd like another test.Ē† The trooper told Johnson that he could blow into a PBT unit.† Johnson did so, and the result was also .20 alcohol concentration.

When Johnson asked for another test, the trooper did not offer a telephone to him.† But at about 2:45 a.m., Johnson requested a telephone and one was provided.† He called his wife, but did not try to arrange for an independent alcohol-concentration test.

Johnson challenged the revocation of his driverís license.† After an implied-consent hearing, the district court concluded that there was no evidence that Johnson actually did anything to obtain an independent alcohol-concentration test, and the court sustained the revocation.† Johnson appeals.

D E C I S I O N

Under the implied-consent law, a person to whom law-enforcement authorities administer an alcohol-concentration test ďhas the right to have someone of the personís own choosingĒ administer an additional test.†† Minn. Stat. ß 169A.51, subd. 7(b) (2000).† The personís inability to obtain an additional test will not preclude the admission into evidence of the peace officerís test ďunless the additional test was prevented or denied by the peace officer.Ē† Id.†

If a person in custody for an alcohol-related driving offense asks for an additional test, ď[a]ll that an officer is required to do * * * is to furnish the use of a telephone.Ē† DeBoer v. Commír of Pub. Safety, 406 N.W.2d 43, 46 (Minn. App. 1987).† But the officer also has a duty not to hamper the personís effort to obtain an additional test.† Theel v. Commír of Pub. Safety, 447 N.W.2d 472, 474 (Minn. App. 1989), review denied (Minn. Jan. 8. 1990).† A mere failure to assist the person in obtaining a test, beyond the furnishing of a telephone, is not hampering.† Id.† ††The officer must not actively mislead the person regarding alcohol-concentration testing, for to do so would, depending on the nature and circumstances of the misleading, likely constitute hampering.† McDonnell v. Commír of Pub. Safety, 473 N.W.2d 848, 853-54 (Minn. 1991); Schmidt v. Commír of Pub. Safety, 486 N.W.2d 473, 476 (Minn. App. 1992).

Johnson contends that, when he asked for another test and the trooper gave him a PBT, the trooper misled Johnson ďto assume he was not entitled to any other type of in-custody independent test.Ē† The trooper thereby hampered Johnson, he argues, in his effort to obtain an additional test and that conduct rendered the officerís test inadmissible in evidence.

The district court construed Johnsonís statements to the trooper to be expressions of incredulity rather than a clear request for an additional test.† Johnson testified that he asked for another test.† The trooperís offer of a PBT lends credence to Johnsonís claim that he asked for another test.† Furthermore, on oral argument the commissioner conceded that the district court found Johnson to be credible.† The issue then is whether the trooperís offer of a PBT in response to Johnsonís request for another test misled Johnson to believe no other test was available and thereby hampered Johnson in his effort to obtain the additional test to which he had a statutory right.† When, as here, the dispositive facts are undisputed, the question of whether the officer prevented or denied an additional test is one of law.† Haveri v. Commír of Pub. Safety, 552 N.W.2d 762, 765 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).† We will overturn the district court only if it has erroneously construed and applied the law to the facts.† Dehn v. Commír of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986).

Johnson told the trooper that he could not believe the .20 intoxilyzer result was accurate and he wanted another test.† The trooper did not interpret Johnsonís statements as a request for an independent test by someone of Johnsonís choosing but rather as a desire to confirm the reading.† The trooper responded accordingly, ďWell, I have this here.† If you care to blow in it again, I can show you.Ē† Johnson did not inquire further about tests, and the trooper gave him no additional information about tests.

Sixty-eight minutes after the intoxilyzer test, Johnson was allowed to use a telephone.† He called his wife.† The provision of the telephone was timely.† See Short v. Commír of Pub. Safety, 422 N.W.2d 40, 42 (Minn. App. 1988) (finding that granting an arrestee access to a telephone an hour after his request for an additional test was timely).† No one prevented Johnson from calling a lawyer or from arranging an additional test.

We hold that the offer of a confirmatory PBT, after Johnson said he disbelieved the intoxilyzer result and wanted another test, was not active misleading by the trooper.† At worst, it was a misinterpretation of what Johnson wanted.† Furthermore, because Johnson was given timely access to a telephone after the PBT and was free to call an attorney and inquire as to his right to a further test, the law-enforcement authorities did not prevent or deny an additional 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, ß 10.