This opinion will be unpublished and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
James Dale Hursh,
Commissioner of Public Safety,
Filed June 25, 2002
Steele County District Court
File No. C401739
Richard E. Tollefson, Smith, Tollefson & Rahrick, 113 West Main Street, P.O. Box 271, Owatonna, MN 55060 (for appellant)
Mike Hatch, Attorney General, Darren L. DeJong, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)
Considered and decided by Lansing, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.
G. BARRY ANDERSON, Judge.
Appellant was arrested for driving while impaired. At the county jail, the arresting officer administered a breath test and appellant registered a .22 alcohol-concentration. The commissioner of public safety revoked appellant’s driver’s license and the district court affirmed the revocation. We affirm.
Appellant was arrested for driving while impaired. An officer transported him to the Steele County Jail and read him the Minnesota Implied Consent Advisory. Appellant contacted an attorney who advised him that he needed to take a breath test if that was the only test offered to him by the officer. Appellant submitted to a breath test and the test registered a .22 alcohol-concentration. The officer, having completed his duties, turned appellant over to two jailers to conduct appellant’s administrative booking. The following exchange occurred:
[APPELLANT]: Geez. I’m surprised my score was that high.
JAILER: It don’t take much anymore.
[APPELLANT]: It doesn’t, does it. * * * I only had about four drinks.
JAILER: Yeah, it don’t take much anymore.
[APPELLANT]: I want a blood test.
JAILER: Blood test would probably come back worse.
[APPELLANT]: Yeah, I suppose.
JAILER: Blood tests are very, very accurate.
A short time later, a jailer directed appellant to keep his attorney’s phone number on his person so that he could call his attorney if he had any more questions. In response to this suggestion, appellant commented, “I might have to call him again.”
Appellant’s driver’s license was subsequently revoked and he filed a petition for judicial review of the license revocation in district court. Appellant argued that his limited right to obtain an independent additional test, in addition to the breath test administered by the arresting officer, was not vindicated because the jailers prevented or denied his request for a blood test.
The district court denied appellant’s request to rescind the commissioner’s order revoking his driver’s license. The court found that appellant neither stated that he wanted a blood test administered by a person of his own choosing, nor advised the officer conducting the breath test of his desire for a blood test. The court concluded that appellant’s right to obtain an independent additional test was vindicated because his request for an additional test was not prevented or denied by the peace officer administering the breath test. This appeal followed.
I. Minn. Stat. § 169A.51, subd. 7(b)
Appellant argues the district court erred in its interpretation of Minn. Stat. § 169A.51, subd. 7(b) (2000) when it concluded that county jailers are not subject to the statute’s requirements. Appellant contends the district court’s construction of the statute in this manner would mean that a defendant would only have a few minutes after submitting to a police-administered chemical test to request and obtain an independent additional test at his own expense. Respondent does not dispute appellant’s contention in any significant way.
The district court concluded that appellant failed to advise the officer who administered the breath test that he wanted an additional test administered by a person of his own choosing. The court interpreted the statute as barring the police-administered test only if the additional test was prevented or denied by the officer requesting the initial test from appellant. According to the court, because the jailers had not requested the initial breath test, they could not have prevented or denied appellant’s right to an additional test as a matter of law.
We conclude the district court erred when it determined that the jailers were not subject to the requirements of Minn. Stat. § 169A.51, subd. 7(b), because jailers are incorporated by reference in the statute, although tenuously, by Minn. Stat. § 645.44, subd. 12 (2000), and Minn. Stat. § 387.14 (2000). Moreover, we reach this conclusion because this court has also at least implicitly recognized that the requirements of the statute apply with equal force to jailers who are given custody of an arrestee after an officer performs the initial chemical test.
Construction of the Minnesota Impaired Driving Code, Minn. Stat. § 169A.01-.76 (statute), is a question of law, which we review de novo. State v. Pearson, 633 N.W.2d 81, 83 (Minn. App. 2001). When interpreting a statute, we must give effect to the intent of the legislature. Id. Under the statute, a person who is administered a chemical test by an officer has a limited right to have an independent additional chemical test administered at his own expense. Minn. Stat. § 169A.51, subd. 7(b).
The person tested 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 does 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.
Id. The statute specifically defines “peace officer” as
(1) a state patrol officer;
(2) University of Minnesota peace officer;
(3) a constable as defined in section 367.40, subdivision 3;
(4) police officer of any municipality, including towns having powers under section 368.01, or county; and
(5) for purposes of violations of this chapter in or on an off-road recreational vehicle or motorboat, or for violations of section 97B.065 or 97B.066, a state conservation officer.
Minn. Stat. § 169A.03, subd. 18 (2000). “Police officer” is defined in the statute as “every officer authorized to direct or regulate traffic or to make arrests for violations of traffic rules.” Minn. Stat. § 169.01, subd. 27 (2000); see also Minn. Stat. § 169A.03, subd. 19 (2000) (incorporating the Minn. Stat. § 169.01, subd. 27 definition of police officer).
It is readily apparent that a county sheriff is a police officer who is authorized to make arrests for violations of traffic rules and is consequently a “peace officer” for purposes of Minn. Stat. §§ 169A.03, subd. 18, 169.01, subd. 27. The definition of “sheriff” “may be extended to any person officially performing the duties of a sheriff, either generally or in special cases.” Minn. Stat. § 645.44, subd. 12. Moreover, as appellant notes, jailers are generally regarded as “agents” of the sheriff in each jurisdiction. See Minn. Stat. § 387.14 (stating that jailers are “other temporary employees” of a sheriff and the sheriff shall be responsible for their acts).
Therefore, we conclude that because a jailer is generally an agent of a sheriff and because the definition of sheriff may be extended to any person performing the duties of a sheriff, a jailer is a peace officer subject to the requirements of Minn. Stat. § 169A.51, subd. 7(b).
II. Right to Additional Test
Appellant argues that instead of offering him the use of a telephone to allow him to arrange for an additional test, the jailers “actively and plainly discouraged” him from arranging an additional test by commenting that the additional test would probably “come back worse.” This comment by one of the jailers, according to appellant, hampered and effectively prevented and denied his right to an additional test.
A district court’s findings of fact will be sustained unless clearly erroneous. Frost v. Comm’r of Pub. Safety, 348 N.W.2d 803, 804 (Minn. App. 1984). Where the facts are undisputed, “the question of whether the police prevented or denied an additional test is a question of law.” Haveri v. Comm’r of Pub. Safety, 552 N.W.2d 762, 765 (Minn. App. 1996) (citation omitted), review denied (Minn. Oct. 29, 1996). We will reverse a district court’s conclusions of law only if the district court incorrectly applied the law to the facts of the case. Dehn v. Comm’r of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986).
The statutory right to obtain an independent additional chemical test is a limited right. Theel v. Comm’r of Pub. Safety, 447 N.W.2d 472, 474 (Minn. App. 1989), review denied (Minn. Jan. 8, 1990). An officer is not required under the statute to instruct a person arrested for driving while impaired about his right to obtain an additional chemical test in addition to the test administered at the direction of the officer. Ruffenach v. Comm’r of Pub. Safety, 528 N.W.2d 254, 256-57 (Minn. App. 1995). An officer must only allow the person the use of a telephone if the person requests an additional test. Cosky v. Comm’r of Pub. Safety, 602 N.W.2d 892, 894 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000); see also State v. Hatlestad, 347 N.W.2d 843, 845 (Minn. App. 1984) (stating that an officer has no duty to furnish the requisite supplies or transportation for an additional test). But if an officer hampers a person’s attempt to obtain an additional test, the results of the officer-administered test are inadmissible. See Theel, 447 N.W.2d at 474.
The district court concluded that the jailers failed to follow county policy to make a telephone available and advise appellant that he would have to make all the necessary arrangements at no expense to the county. Thus, the court implicitly concluded that the jailers would have violated appellant’s right to an additional test if they were included in the statute’s definition of “peace officer.”
We conclude the district court erred in its implicit conclusion that the jailers prevented or denied appellant’s right to an additional test.
First, whether the jailers followed county policy is irrelevant to our inquiry because appellant’s right to an additional test is not defined by a particular county’s policy; rather, that county’s policy must be consistent with the statute and the case law interpreting the statute.
Here, appellant made a spontaneous comment: “I want a blood test.” Whereupon, the jailers responded that a blood test “would probably come back worse” and that blood tests “are very, very accurate.” Appellant responded, “I suppose.” Appellant did not make it clear that he was requesting an additional test at his expense. Moreover, appellant had the opportunity to speak with his attorney at length twice before this exchange occurred. He had full and unfettered access to a telephone during the entire testing and booking process and used the telephone to call his wife. Moreover, the jailers refused to place appellant’s attorney’s phone number with the rest of his belongings and instructed him to keep the number on his person so that he could contact his attorney if he had any further questions.
Appellant argues the exchange “actively and plainly discouraged” him to forego an additional test. Under Minnesota law, the police must not prevent, deny, or hamper a request for an additional test. But the police do not have to facilitate a person’s attempt to obtain an additional test by furnishing supplies or transportation; they must only furnish a telephone. Cosky, 602 N.W.2d at 894. Further, the jailers’ comments were not misleading. See Short v. Comm’r of Pub. Safety, 422 N.W.2d 40, 42 (Minn. App. 1988). The first jailer voiced his opinion that a blood test would probably come back worse; the other jailer merely commented that blood tests are accurate. Neither statement suggests the jailers misled appellant about his right to an additional test.
Under the facts in this case, we conclude the district court erred when it implicitly determined that the jailers violated Minn. Stat. § 169A.51, subd. 7(b), because the jailers’ actions did not prevent, deny, or hamper appellant’s apparent attempt to obtain an additional test.
 “Peace officer” is also generally defined in Minn. Stat. § 626.84, subd. 1(c)(1) (2000) as, in relevant part:
an employee or an elected or appointed official of a political subdivision or law enforcement agency who is licensed by the board, charged with the prevention and detection of crime and the enforcement of the general criminal laws of the state and who has the full power of arrest, and shall also include the Minnesota state patrol, agents of the division of alcohol and gambling enforcement, state conservation officers, metropolitan transit police officers, and department of corrections’ fugitive apprehension unit officers.
 In addition to the statutory language, in State v. Galarneault, 354 N.W.2d 597, 600 (Minn. App. 1984), this court concluded that a jailer’s refusal to release an arrestee so that he could go to a hospital did not prevent or deny the arrestee’s right to an additional test because, if the defendant is in custody, the test “must be arranged where he is confined.” (Quotation omitted.) Moreover, in Short v. Comm’r of Pub. Safety, 422 N.W.2d 40, 42 (Minn. App. 1988), the defendant argued that a jailer made misleading statements to him about his right to an additional test. Without commenting on the application of the statute to jailers, this court concluded that the defendant’s right to an additional test was not prevented or denied because he “was allowed two telephone calls” and was advised of his right to an additional test by the arresting officer. Id. See generally State v. Shifflet, 556 N.W.2d 224, 225-28 (Minn. App. 1996) (jailers apparently denied access to the arrestee and therefore violated the statute); Theel v. Comm’r of Pub. Safety, 447 N.W.2d 472, 473-74 (Minn. App. 1989) (stating that another officer, other than the officer administering the initial test, prevented or denied the arrestee’s right to an additional test), review denied (Minn. Jan. 8, 1990).