may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996)
STATE OF MINNESOTA
IN COURT OF APPEALS
Joseph Pelchat, petitioner,
Commissioner of Public Safety,
Filed November 10, 1997
Mille Lacs County District Court
File No. C7-97-246
Steven J. Meshbesher, Jay S. Gleeman, Steven Meshbesher & Associates, P.A., 10 South Fifth Street, Suite 700, Minneapolis, MN 55402 (for appellant)
Hubert H. Humphrey III, Attorney General, Timothy D. Webb, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for respondent)
Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and
Appellant Joseph Pelchat challenges the revocation of his driver's license, arguing the arresting officer prevented him from obtaining an independent chemical test. We affirm.
The breath test indicated Pelchat's alcohol concentration was .12. The Commissioner of Public Safety revoked Pelchat's driver's license and the district court sustained the revocation. On appeal, Pelchat argues Johnson prevented him from exercising his right to obtain an independent chemical test and the breath test results should be suppressed.
Minn. Stat. § 169.123, subd. 3(a) (1996) provides that a person arrested for DWI
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 * * * after the test administered at the direction of a peace officer * * * .
If an officer prevents a suspect from obtaining an independent test, the results of the state-administered test are inadmissible in evidence. Minn. Stat. § 169.123, subd. 3(b). The only obligation an officer has to assist a DWI suspect in obtaining an independent test is permitting the suspect to use a phone. Frost, 348 N.W.2d at 804 (citing State v. Streitz, 276 Minn. 242, 150 N.W.2d 33 (1967)).
The record from the implied consent hearing supports the district court's finding that Pelchat waived his right to obtain an independent chemical test. Although Johnson acknowledged that he told Pelchat he would have to "settle down" before he could have a blood test, Johnson testified that Pelchat exhibited mood swings while he was in custody and Pelchat's behavior was "very irate at times." After Pelchat submitted to the state-administered breath test, Johnson offered Pelchat an opportunity to arrange for an independent blood test. Based on all of the testimony, the district court's finding that Pelchat waived his right to an independent test was not clearly erroneous.