This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C0-96-739

Jody C. Nelson,

Appellant,

vs.

State of Minnesota,

Respondent.

Filed December 17, 1996

Reversed and Remanded

Davies, Judge

Hennepin County District Court

File No. 9589043

Richard L. Swanson, P.O. Box 85, Chaska, MN 55318 (for Appellant)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101 (for Respondent)

Michael T. Norton, Acting Minneapolis City Attorney, Carol Lansing, Assistant Minneapolis City Attorney, 300 Metropolitan Centre, 333 S. Seventh St., Minneapolis, MN 55402 (for Respondent)

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

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

DAVIES, Judge

Appellant argues that the results of her breath test should have been suppressed in her criminal DWI trial because, having been denied the opportunity to obtain an independent alcohol concentration test, she was prohibited from completing the procedures promised in the implied consent statute and advisory. We reverse and remand.

FACTS

Appellant Jody C. Nelson was arrested at 1:40 a.m. for driving under the influence. After the officer read her the implied consent advisory and gave her a chance to contact a lawyer, she submitted to a breath test. It registered an alcohol concentration of .19.

Appellant then asked for the opportunity to arrange an independent test pursuant to the implied consent statute and advisory. The officer informed her that she could use the telephone to make those arrangements. Appellant called an acquaintance, asking him to bring a jar to the jail so that appellant could preserve a urine sample. When the acquaintance arrived at the jail around 4:00 a.m., a uniformed officer told him he would not be allowed into the detention center because appellant's name was "[not] in the computer." He stated that he then used a nearby pay phone to call the jail directly. Again, he was told that appellant's name was not in the computer.

Appellant was charged with: driving under the influence, Minn. Stat. § 169.121, subd. 1(a) (1994); driving with an alcohol concentration of .10 or more, Minn. Stat. § 169.121, subd. 1(d) (1994); and careless driving, Minn. Stat. § 169.13, subd. 2 (1994). She was not charged with any implied consent violation.

Appellant made a pretrial motion to suppress the results of the state-administered breath test on the ground that she had been denied an opportunity to obtain an independent test; the district court denied this motion. On stipulated facts, which included the breath test results, the court found appellant guilty of DWI and driving with an alcohol concentration of .10 or more.

D E C I S I O N

We review questions of statutory interpretation de novo. State v. Knutson, 523 N.W.2d 909, 912 (Minn. App. 1994), review denied (Minn. Jan. 13, 1995).

Appellant argues that the results of her breath test should have been suppressed in her criminal prosecution because she was prohibited from obtaining an independent test, a right given her by the implied consent statute. A person tested for alcohol pursuant to that statute has the right to have someone of the person's own choosing administer an additional test. Minn. Stat. § 169.123, subd. 3 (1994). The failure to obtain an independent test will preclude use of the state's test if "the additional test was prevented or denied by the peace officer." Id. Appellant contends that she should be afforded this protection in her criminal trial.

We recently addressed this issue in State v. Shifflet, __ N.W.2d __ (Minn. App. Nov. 26, 1996), noting that

it would be anomalous to hold that a driver has, under Minn. Stat. § 169.123, subd. 3, a greater right to additional testing in an implied consent proceeding than he or she does in a DWI proceeding. Not only would this be contrary to the history of the statute, * * * but it violates the basic premise that the "constitutional right to have access to potentially exculpatory evidence is rooted in the criminal justice system."

Id. at ___ (citation omitted). Accordingly, this court held that test results obtained pursuant to a defective implied consent procedure (the right to an additional test had been denied) should have been suppressed in a criminal proceeding. Id. at ___.

Shifflet is directly on point. Because appellant, like the driver in Shifflet, was prevented from obtaining an independent test--completing the prescribed implied consent procedures--the district court must suppress the results of the state-administered test appellant voluntarily submitted to after receiving the implied consent advisory.[1] The count for driving with an alcohol concentration of .10 or more in violation of Minn. Stat. § 169.121, subd. 1(d), must be dismissed. Should the State on remand pursue the charges for driving under the influence in violation of Minn. Stat. § 169.121, subd. 1(a), evidence of the breath test results will be inadmissible.

Reversed and remanded.

[ ]1 This rule does not apply, however, if the alcohol concentration test is given independent of implied consent procedures, as in State v. Schauer, 501 N.W.2d 673 (Minn. App. 1993).