This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
Michael Duane Sheehy,
Filed August 22, 2006
Otter Tail County District Court
File No. K0-03-1411
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and
David J. Hauser, Otter Tail County Attorney, Nicole S.C. Hansen, Assistant County Attorney, 121 West Junius Avenue, Suite 320, Fergus Falls, MN 56537 (for respondent)
Brent S. Schafer,
Considered and decided by Shumaker, Presiding Judge; Stoneburner, Judge; and Worke, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from a conviction of DWI, appellant argues that a police officer prevented or denied appellant’s right to an independent chemical test when the officer gave appellant a BCA urine collection kit, but removed the instructions and the evidence seal, without which no facility would test the sample. We affirm.
D E C I S I O N
implied-consent statute provides that after a person submits to a chemical
test, he has the right to have an additional test at his own expense. Minn. Stat. § 169A.51, subd. 7(b)
(2002). “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.”
Appellant Michael Duane Sheehy argues that the district court erred in certain
findings of fact, but concedes that the facts are undisputed. Thus, we will address only whether, based on
the undisputed facts, appellant’s right to an independent test was prevented or
denied. This court has distinguished
between cases when a peace officer failed to assist and those when the officer
hampered an attempt to obtain an additional test.
Appellant requested an independent test after consulting with an attorney. An officer told appellant that appellant was responsible for the independent test and that he would release appellant to get a test. The officer gave appellant a container from a BCA urine collection kit, but took out all of the instructions, legal paperwork, and the seal that are used by the officers in conducting a test. The officer told appellant to take the sample to the hospital, but appellant left without the sample and it was found the next morning in the booking area. Appellant’s counsel picked up the sample to have it tested, but the lab refused to test the sample because the container was not sealed or labeled. Appellant contends that the officer hampered his right to an independent test by providing him with an incomplete urine collection kit. Appellant concedes that the officer did not have a duty to furnish anything, but suggests that the officer undertook an obligation to provide a complete kit after offering assistance. Appellant’s argument fails. First, appellant does not provide any authority that an officer assumes a duty to facilitate an independent test by providing a container to collect a urine sample. The only obligation the officer had was to provide appellant the use of a phone, which the officer did. See id. (“[t]he only obligation an officer has in assisting the defendant in obtaining an additional test is to allow [the] defendant use of a phone”). Second, the officer repeatedly told appellant that appellant was responsible for obtaining a second test after he was released.
Appellant also suggests that the officer prevented appellant from obtaining an independent test because appellant arranged a test at a hospital, but did not pursue that test because of the officer’s assistance. But the record shows that the officer told appellant that he was giving appellant a collection kit and then appellant was to bring it to the hospital. The district court did not err in denying appellant’s motion to suppress the test results because the officer did not prevent or hamper appellant’s right to an independent test.