may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Mark Bernard Schepers,
Commissioner of Public Safety,
Filed March 25, 1997
Scott County District Court
File No. 96-11303
Paul B. Ahern, Froberg & Ahern, P.A., 17736 Excelsior Boulevard, Minnetonka, MN 55345 (for Appellant)
Hubert H. Humphrey, III, Attorney General, Ann M. Offermann, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for Respondent)
Considered and decided by Klaphake, Presiding Judge, Randall, Judge, and Foley, Judge.[*]
Appellant Mark Bernard Schepers challenges the order sustaining revocation of his driver's license, claiming that his right to additional testing was violated. Because appellant's exercise of this right was neither prevented nor denied, we affirm.
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.
Minn. Stat. § 169.123, subd. 3 (1994). If the officer prevents or denies the person in custody from obtaining an additional test, the police-administered test may be suppressed. Id. The statutory right to an additional test is a "limited" right. Theel v. Commissioner of Pub. Safety, 447 N.W.2d 472, 474 (Minn. App. 1989), review denied (Minn. Jan. 8, 1990). An officer need only allow the person the use of a phone; the officer has no affirmative duty to arrange for the test or transport the person to a medical facility. See State v. Streitz, 276 Minn. 242, 150 N.W.2d 33 (1967); Short v. Commissioner of Pub. Safety, 422 N.W.2d 40, 42 (Minn. App. 1988); see also South Dakota v. Neville, 459 U.S. 553 (1983) (arresting officer has no duty to inform driver of right to independent test).
Here, the facts show: (1) appellant's right to counsel was vindicated before he asked for an additional test; (2) the officer then explained the right to additional testing accurately to appellant; (3) the officer gave appellant a phone and phone book; (4) the officer allowed appellant at least 25 minutes to use the phone; and (5) appellant made at least eight phone calls, including calls to the hospital, his doctor, and a second call to his attorney. Although appellant claims that he was denied the opportunity to "make a couple more calls," we conclude that this allegation, even if true, did not prevent or deny his right to additional testing because that right had already been vindicated. On these facts, the district court properly concluded that the officer did not prevent or deny an additional test. Cf. Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1991) (whether driver's right to counsel has been vindicated is mixed question of law and fact), review denied (Minn. Oct. 20, 1992).
[ ]* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.