This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-568

John Thomas Dornick,

Respondent,

vs.

Commissioner of Public Safety,

Appellant.

Filed November 19, 1996

Reversed

Peterson, Judge

Hennepin County District Court

File No. IC 473634

Stephen R. O'Brien, 426 Norwest Midland Building, Minneapolis, MN 55401 (for Respondent)

Hubert H. Humphrey, III, Attorney General, Jeffery F. Lebowski, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for Appellant)

Considered and decided by Davies, Presiding Judge, Klaphake, Judge, and Peterson, Judge.

U N P U B L I S H E D O P I N I O N

PETERSON, Judge

The Commissioner of Public Safety appeals from the district court order rescinding the revocation of respondent's driver's license pursuant to the implied consent statute. The Commissioner challenges the district court's conclusion that police denied respondent his right to have a person of his own choice conduct additional testing for alcohol concentration. We reverse.

FACTS

On January 12, 1996, a St. Louis Park police officer arrested respondent John Dornick for driving while under the influence of alcohol and transported him to the police station. Dornick was read the implied consent advisory and, after consulting with his attorney, agreed to submit to chemical testing. A breath test showed Dornick's alcohol concentration was greater than .10. Dornick testified that after the breath test was completed, he told police that he wanted a urine test.

Dornick's attorney contacted Dornick's wife and instructed her to bring a clean jar with a lid on it to the police station and collect a urine sample from Dornick. Dornick's wife testified that when she arrived at the police station, she told a police officer that she was there for Dornick, put the jar on the table, and said she wanted a urine sample. She testified that the officer said they did not offer a urine test and explained what tests they did perform. The officer then asked Dornick's wife some questions, had her sign a paper, and, a short time later, released Dornick.

The district court did not make a specific finding on whether Dornick told police that he wanted additional testing. The court found that Dornick's wife

spoke to an unidentified police officer and asked the officer to take the bottle to her husband so that he could provide a urine sample. This request was denied * * *.

D E C I S I O N

This court defers to the district court's opportunity to assess witness credibility and will not reverse its findings of fact unless they are clearly erroneous. Frost v. Commissioner of Pub. Safety, 348 N.W.2d 803, 804 (Minn. App. 1984). We will reverse the district court's conclusions of law if the district court "erroneously construed and applied the law to the facts of the case." Dehn v. Commissioner of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986).

A person tested for intoxication pursuant to the implied consent statute

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 shall 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. § 169.123, subd. 3 (1994).

Dornick raises the issue of the district court's failure to make a specific finding on whether he requested an additional test. We may assume the district court found Dornick requested an additional test because that finding is implicit in the court's conclusion that Dornick's right to an additional test was denied. See Umphlett v. Commissioner of Pub. Safety, 533 N.W.2d 636, 638-39 (Minn. App. 1995) (although district court made no specific finding on whether driver requested additional test, this finding was implicit in district court's conclusion that driver's right to additional test was not denied), review denied (Minn. Aug. 30, 1995).

When determining whether a police officer prevented or denied an additional test,

we must draw a distinction between an officer's failing to assist and an officer's hampering an attempt to obtain such a test.

Haveri v. Commissioner of Pub. Safety, 552 N.W.2d 762, 765 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996). The only obligation a police officer has in assisting a driver to obtain additional testing is to allow the driver to use a telephone. Umphlett, 533 N.W.2d at 638. The officer has no duty to provide supplies or transportation or to arrange for someone to come to the jail to administer the additional test. Theel v. Commissioner of Pub. Safety, 447 N.W.2d 472, 474 (Minn. App. 1989), review denied (Minn. Jan. 8, 1990).

Dornick argues that police denied his right to additional testing by releasing him from custody before an additional test was administered. Dornick contends that Minn. Stat. § 169.123, subd. 3 grants a driver the right to have an additional test administered while the driver is still in custody. We disagree. In Frost, this court held that "[a]n officer has no duty to continue to hold a person in custody until additional tests can be administered." 348 N.W.2d at 805.

Dornick also argues that his wife was denied the opportunity to administer a urine test to him. Neither Dornick nor his wife, however, testified that they asked police to allow her access to Dornick to administer a urine test. Dornick testified that he requested a urine test, but officers responded that they had done all they were required to do. The officers' response indicates they interpreted Dornick's request as a request that they perform the urine test. The evidence supports the district court's finding that Dornick's wife asked the officer to take the bottle to Dornick, so Dornick could provide a urine sample. Absent a request, the officers were not required to provide Dornick's wife access to Dornick. See Haveri, 552 N.W.2d at 764, 765 (when arrestee's sister came to jail with container for urine sample, police not obligated to usher sister to arrestee when neither sister nor arrestee requested that sister be present during collection of urine sample). The officers also had no obligation to question the Dornicks to clarify their requests or to explain the law on additional testing to them to make sure they correctly understood it. See Schmidt v. Commissioner of Pub. Safety, 486 N.W.2d 473, 474-76 (Minn. App. 1992) (right to additional testing not denied when officer correctly explained police procedure and his statements could not be characterized as an attempt to misstate the law in order to hinder driver's right to additional testing even though driver's attorney misinterpreted explanation); See also Davis v. Commissioner of Pub. Safety, 509 N.W.2d 380, 386-87 (Minn. App. 1993) (driver must rely on his attorney, not police, to advise him of his right to additional testing), aff'd, 517 N.W.2d 901 (Minn. 1994). The district court erred in determining that Dornick was denied his right to additional testing.

We deny Dornick's request for costs and attorney fees on appeal.

Reversed.