This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






Stefan Eric Mark, petitioner,





Commissioner of Public Safety,



Filed May 10, 2005


Dietzen, Judge


Anoka County District Court

File No. C4-04-3606


Paul B. Ahern, Paul B. Ahern, P.A., 5101 Thimsen Avenue, Minnetonka, MN 55345 (for appellant)


Mike Hatch, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)


            Considered and decided by Dietzen, Presiding Judge; Shumaker, Judge; and Huspeni, Judge.*

U N P U B L I S H E D  O P I N I O N



            Appellant challenges the revocation of his driver’s license on the ground that his statutory right to an additional test was violated. Because we conclude that appellant’s right was violated when he was not permitted to use his own plastic receptacle for the sample for an additional test, we reverse.  


            Appellant Stefan Mark was arrested on a suspicion of driving under the influence of alcohol.  Following his arrest, he was taken to the Anoka County jail and given an Intoxilyzer test, which indicated a blood alcohol concentration of 0.14. Appellant requested an additional test and told the deputy that he wanted his wife to come to the jail with a plastic receptacle and to be present when he deposited a urine sample in that receptacle.  Appellant did not explain why he wanted to use his own receptacle.[1]   Because the jail policy manual provided that persons “collecting a urine sample for chemical tests will not be allowed into the Jail” and that “Jail staff will collect the requested sample . . . in a Jail-issued plastic bottle,” appellant was not given permission to have his wife be present or to use his own receptacle.  He argued to the district court that this was a denial of his statutory right to an additional test.  The district court rejected his argument and issued an order sustaining the revocation of his driver’s license.  He challenges that order.  



            A person whose alcohol concentration has been tested by the state has the right to an additional test, administered by someone of that person’s choice, of a sample obtained (1) at the place where the person is in custody, (2) after the state’s test has been administered, and (3) at no expense to the state. Minn. Stat. § 169A.51, subd. 7(b) (2002).  Prevention or denial of the additional test will preclude the admission in evidence of the state’s test.  Id.[2]   When the facts are not in dispute, whether the additional test was prevented or denied is a question of law.   Haveri v. Comm’r of Pub. Safety, 552 N.W.2d 762, 765 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).  We conclude that while appellant’s right to an additional test was not denied when the state refused to permit his wife to enter the jail to be present when he provided the sample, it was denied when he was not allowed to use his own plastic receptacle for the sample. 

            Minn. Stat. § 169A.51, subd. 7(b), provides that the sample for an additional test must be “obtained at the place where the person is in custody.”  The duties of staff at custodial facilities in regard to additional tests are very limited.  See, e.g., Cosky v. Comm’r of Pub. Safety, 602 N.W.2d 892, 894 (Minn. App. 1999) (duties do not include furnishing supplies or transportation to facilitate additional test or instructing driver on how to obtain additional test), review denied (Minn. Jan. 18, 2000); Moe v. Comm’r of Pub. Safety, 574 N.W.2d 96, 98-99 (Minn. App. 1998) (no duty to offer driver initial choice among tests), review denied (Minn. April 14, 1998); Duff v. Comm’r of Pub. Safety, 560 N.W.2d 735, 738 (Minn. App. 1997) (no duty to explain extent and scope of driver’s right to additional test while driver is in custody); Hotchkiss v. Comm’r of Pub. Safety,553 N.W.2d 74, 77 (Minn. App. 1996) (no duty to assist driver in obtaining additional test other than to allow use of telephone; no duty to hold in custody until additional test can be obtained), review denied (Minn. Oct. 29, 1996); Haveri,552 N.W.2d at 765 (no denial of additional test when police refused to permit driver’s sister to deliver jar for collecting sample to driver’s jail cell);[3] Schmidt v. Comm’r of Pub. Safety, 486 N.W.2d 473, 475 (Minn. App. 1992) (only duty is to offer use of telephone; no duty to transport to hospital, locate physician, or arrange for physician to come to jail).

In contrast, the duties of staff at custodial facilities in regard to security and visitors are extensive.  See, e.g., Minn. R. 2930.4700 (requiring facility to have and adhere to written security policies and procedures); Minn. R. 2930.4500 (requiring facility to have a written plan for visitors that includes “security provisions consistent with security rules stated herein” and that provides for visiting during regularly scheduled hours); Minn. R. 2930.7000 (denying admission to visitors who refuse to permit to a requested search by a staff member of the same sex).  The jail’s policy of not allowing persons who come to collect samples for additional tests to enter the jail is based on its obligations to maintain security and control visitors. Appellant had no right to require the jail to set aside that policy, and refusal to do so was not a denial of appellant’s right to an additional test.

But, unlike permitting a third party to enter the secured area of a jail, which clearly violates the security restrictions jails are required by law to maintain, permitting a driver to have a plastic receptacle for the sample for an additional test brought to the jail and delivered to him arguably creates no security risk.  Here, the state has presented no evidence indicating that permitting appellant to have his own plastic receptacle brought to the jail for a sample for an additional test would unduly burden jail personnel.  Absent such evidence, we cannot conclude that refusing appellant permission to use his own plastic receptacle instead of the receptacle provided by the jail was not a denial of his statutory right to an additional test.[4]  


* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[1] At oral argument, appellant’s attorney said appellant wanted to use his own receptacle because he did not trust the government.  But this information was not before the district court and is therefore not before us.  See Minn. R. Civ. App. P. 110.02, subd. 1(a) (record on appeal is limited to papers filed in the district court, exhibits, and transcript of the proceedings).

[2] See also Minn. R. 7502.0500 (2003) (“Any person may administer a urine test”); Minn. R. 7502.0100, subp. 2 (“‘Administer’ means the collection of a specimen of blood, breath, or urine from a person for the purpose of analyzing the specimen to determine alcohol concentration”).

[3] Appellant’s attempt to distinguish Haveri is based on an error in logic.  The Haveri holding may be stated as a hypothetical syllogism: if a defendant does not request that a third party be brought into the jail to be present during the collection of a sample, then failure to take the third party into the jail is not a denial of the additional test.  Appellant commits the fallacy of denying the antecedent when he extrapolates from Haveri the holding that, if a defendant does request a third party to be brought into jail, then failure to admit the third party is a denial of the additional test.

[4] Additional tests “must meet the usual evidentiary standards to be admitted into evidence.”  Quick v. Comm’r of Pub. Safety, 429 N.W.2d 298, 301 (Minn. App. 1988) (affirming revocation of driver’s license based on Intoxilyzer test result of alcohol concentration of 1.1 although additional independent urinalysis results were .036 and .038), review denied (Minn. Nov. 23, 1988).  We do not address whether a sample collected in a privately-supplied plastic receptacle will meet “the usual evidentiary standards,” and we note that the deputy testified that the jail provides sterile, secure receptacles at no cost to drivers in an effort to “protect the chain of custody.”