This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2002).






Daniel Joseph Mielke, petitioner,


Commissioner of Public Safety,


Filed January 7, 2003


Stoneburner, Judge


Anoka County District Court

File No. C0017671


Paul W. Rogosheske, Joe C. Dalager, Thuet, Pugh, Rogosheske & Atkins, Ltd., Suite 100, 222 Grand Avenue South, South St. Paul, MN 55075 (for appellant)


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


            Considered and decided by Anderson, Presiding Judge, Stoneburner, Judge, and Wright, Judge.

U N P U B L I S H E D  O P I N I O N



            Appellant challenges an order sustaining the revocation of his driver’s license.  Appellant argues that (1) his right to consult with counsel was not vindicated because he was not permitted to make a second call to his attorney; (2) failure of the officer to record the reading of the implied consent advisory violated due process; (3) the Intoxilyzer 5000 is unreliable because its accuracy was not certified annually; and (4) his right to an additional test was denied.  Because appellant’s right to counsel was vindicated; failure to record the reading of the implied consent advisory did not violate appellant’s due process rights; appellant lacks standing to challenge the accuracy of the Intoxilyzer; and appellant was not entitled to an additional test, we affirm.



            A police officer arrested appellant and charged him with driving while impaired (DWI).  The officer did not record the reading of the implied consent advisory to appellant.  After the officer gave appellant the opportunity to speak with his attorney, the officer offered appellant a breath test.  Appellant asserts that he requested a blood test rather than a breath test and asked for the opportunity to call his lawyer again, and that both requests were denied.  Appellant refused the test offered.  He was charged with refusal to test and was detained for three and one-half hours at the jail.   

Appellant’s driver’s license was revoked and he requested a hearing pursuant to Minn. Stat. § 169A.53, subd. 3.  At the hearing, the police officer denied that appellant asked about a blood test or requested a second opportunity to contact his attorney.  Appellant testified that the implied consent advisory was not read to him, but that he was permitted to read it.  He testified that he was confused about his rights.  Appellant’s wife testified that she attempted to arrange for a test while appellant was detained but was unable to obtain an independent test.  The district court sustained a relevancy objection to the testimony of Thomas Burr, a forensic scientist testifying for appellant, concerning the reliability of the Intoxilyzer 5000.  Appellant made an offer of proof that Burr would have testified that the Intoxilyzer 5000 is not reliable because Minnesota does not require regular certification of the calibration of these testing devices.  Burr asserts that, absent certification on at least an annual basis, the Intoxilyzer 5000 is not reliable and accurate.   

            The district court sustained the revocation of appellant’s driving privileges, stating in a brief memorandum that appellant’s right to counsel was vindicated, that there was no legal requirement that the reading of the Implied Consent Advisory be tape-recorded, and that because appellant refused to take the test offered, he had no right to obtain an additional test.  The district court also noted that the Intoxilyzer-certification issue raised by appellant is not relevant.  This appeal followed.




I.                   Vindication of limited right to counsel

Respondent argues that appellant did not specifically raise the issue of vindication of his right to counsel in district court and that this issue should therefore not be considered on appeal.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1998) (stating that a reviewing court must generally consider only issues presented and considered by the district court).  In written argument to the district court, however, appellant identified the issue of whether or not his right to counsel was vindicated and argued that he had a right to re-contact his lawyer and that denial of that right constituted a procedural deficiency.  Although the district court did not specifically find that appellant had asked to make a second call to his attorney, the court concluded that appellant’s right to counsel was vindicated because he actually spoke to his attorney.  Appellant has preserved the issue for appeal.

The determination of whether a DWI arrestee’s limited right to counsel has been vindicated is a mixed question of law and fact, “requiring the appellate court to apply the controlling legal standard to historical facts” determined by the district court.  Hartung v. Comm’r of Pub.  Safety, 634 N.W.2d 735, 737 (Minn. App. 2001) (citation omitted).  “When facts are undisputed, we review de novo to determine whether a defendant’s right to counsel was violated.”  State v. Slette, 585 N.W.2d 407, 409 (Minn. App. 1998) (citing State v. Christiansen, 515 N.W.2d 110, 112 (Minn. App. 1994), review denied (Minn. Jun. 15, 1994).

Under the Minnesota Constitution, persons arrested for DWI have a limited right to consult with counsel before deciding whether or not to comply with the statutory requirement of implied consent testing.  Id.

This right is vindicated if a DWI arrestee is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.


Id. (quotation omitted).  It is undisputed that appellant actually consulted with his attorney and appellant does not argue that the amount of time that he was given to speak with counsel was unreasonable. 

Appellant argues that he was entitled to make a second telephone call to his attorney, citing Slette.[1]  Appellant’s reliance on Slette is misplaced.  Slette stands for the proposition that when a DWI arrestee initially declines the opportunity to consult with counsel, but within a reasonable time before testing changes his mind, the arrestee must be given the reasonable opportunity to contact counsel.  Slette, 585 N.W.2d 407.  Slette does not hold that a DWI arrestee is entitled to more than one conversation of a reasonable length of time with counsel.  Appellant was afforded a meaningful opportunity to consult with his attorney and he took advantage of that opportunity.  We conclude that appellant’s limited right to counsel was vindicated.


II.                Failure to record the reading of the implied consent advisory


            Appellant argues that the officer’s failure to record the reading of the implied consent advisory is a violation of the Due Process Clauses of the federal and state constitutions. U.S. Const. amend. 5; Minn. const. art. 1, § 7.  Appellant acknowledges that we have previously held that the reading of the implied consent advisory is not a custodial interrogation requiring recording.  See e.g., Umphlett v. Comm’r of Pub. Safety, 533 N.W.2d 636, 640 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995); State v. Lopez, 538 N.W.2d 705, 707 (Minn. App. 1995).  But appellant argues that due process requires the reading of the implied consent advisory be recorded because a person’s responses and actions during this process can be used to charge a person with the crime of refusal to test.  Appellant argues that recording is a simple procedure and resolves disputes about what transpired.  As we noted in Lopez, however, the supreme court previously held “that the criminal penalties do not convert the reading of an implied consent advisory into ‘interrogation.’”  Lopez, 538 N.W.2dat 707 (citing McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 855-56 (Minn. 1991)).

The supreme court based the recording requirement on its own supervisory powers and specifically declined to base the requirement on the Due Process Clause of the Minnesota Constitution.  State v. Scales, 578 N.W.2d 587, 592 (Minn. 1994).  We decline to expand the recording requirement beyond the rule announced in Scales.  Appellant has not shown that the failure to record the reading of the implied consent advisory violates due process.  The cases he cites address only the supreme court’s supervisory power to require recording.  We conclude that appellant has failed to establish that his procedural or substantive due process rights under the federal and state constitutions were violated by the failure to record the reading of the implied consent advisory, even though we agree with his assertion that recording the process facilitates review.


            III.       Reliability of Intoxilyzer


Appellant argues that the district court’s order sustaining revocation of his driving privileges should be reversed because there is no guarantee that the Intoxilyzer 5000 test results are accurate.  Appellant argues that he has a due process right to reliable and accurate testing and that he should not be deemed to have refused a test that the state cannot assure the courts is reliable and accurate.  Appellant presents no authority to support his argument that the state has a burden to prove the accuracy of the test before he can be deemed to have refused the test.  Furthermore, appellant lacks standing to challenge the accuracy or reliability of the Intoxilyzer 5000.

            A person does not have standing to claim a violation of a constitutional right unless the person can show a direct and personal harm resulting from the alleged denial of a constitutional right.  City of Minneapolis v. Wurtele, 291 N.W.2d 386, 393 (Minn. 1980).  Because appellant did not submit to testing by the Intoxilyzer 5000, he has suffered no harm as a result of the instrument’s alleged unreliability.  The district court did not abuse its discretion by excluding evidence of the unreliability of the Intoxilyzer 5000.

            IV.       Right to obtain an additional test

            Appellant argues that he had a right to take an independent test.  But appellant was not entitled to an independent test while he was in custody, because he declined to take the test offered by the state. 

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


Minn Stat. § 169A.51, subd. 7(b) (2000) (emphasis added).  The statute clearly states that in order to be entitled to an additional test while in custody, the driver must first submit to a test administered by a police officer.  Furthermore, the remedy for the denial of the statutory right to an additional test is the suppression of the test obtained at the request of the state.  Id.  Independent testing is not relevant to this case in which appellant’s license was revoked for refusing to test.

            Appellant contends that denial of an independent test violated his right to obtain potentially exculpatory evidence.  See Brady v. Maryland, 373 U.S. 83, 87-88, 83 S.Ct. 1194, 1196-97, 10 L.Ed.2d 215 (1963) (establishing due-process rights to exculpatory evidence in criminal proceeding).  In an appeal from a criminal conviction for refusal to test, this court has specifically held “that submission to a police-administered alcohol test is a condition precedent to the right to obtain an independent test.”  State v. Larivee, 644 N.W.2d 100, 105 (Minn. App. 2002), review granted (Minn. Apr. 16, 2002).  Because there is no right to obtain exculpatory evidence in an implied consent proceeding, we need not delay our decision on this issue in this case until the supreme court has issued its opinion in Larivee.  See Hartung, 634 N.W.2d at 738 (holding that because implied consent hearing is not a criminal proceeding, Brady is inapplicable).  The district court did not err by rejecting appellant’s argument that denial of an independent test requires that revocation of appellant’s license be rescinded.



[1] For purposes of this analysis we accept appellant’s assertion that he requested a second opportunity to call his attorney.