may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Commissioner of Public Safety,
File No. 975664
Richard L. Swanson, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN 55318 (for appellant)
Hubert H. Humphrey III, Attorney General, Peter R. Marker, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for respondent)
Considered and decided by Short, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.
Appellant Terry Lee Macht challenges the district court's determination that: (1) the arresting officer had probable cause to arrest appellant for driving while under the influence; and (2) Macht was not prevented or denied an additional test by the arresting officer. We affirm.
In Holtz v. Commissioner of Pub. Safety, 340 N.W.2d 363, 365 (Minn. App. 1983), we stated that "an officer need only have one objective indication of intoxication to constitute reasonable and probable grounds to believe a person is under the influence." On appeal, we do not conduct a de novo review, but rather we determine whether at the time the implied consent law was invoked, the arresting officer had a substantial basis on which to conclude that probable cause existed. Heuton v. Commissioner of Pub. Safety, 541 N.W.2d 361, 363 (Minn. App. 1995). Here, the record demonstrates that the arresting officer observed that Macht: (1) rear-ended another vehicle at a stoplight; (2) appeared to be unsteady in trying to get out of his car; (3) made a wide turn while driving; (4) admitted to consuming alcohol that night; (5) emitted a strong odor of alcohol; and (6) failed two field sobriety tests and refused to perform a third one. Given these circumstances, we affirm the district court's determination that the arresting officer had a sufficient basis for determining there was probable cause to arrest Macht. Further, Macht's explanation that his physical and mental disabilities account for his actions does not negate the arresting officer's probable cause determination. See State v. Olson, 342 N.W.2d 638, 640 (Minn. App. 1984) (ruling that an officer may consider all facts in determining probable cause "even if there are valid exculpatory explanations" for the behavior).
Macht next argues the results of the Intoxilyzer test should be suppressed because the arresting officer prevented him from obtaining an additional test. We disagree. In Frost v. Commissioner of Pub. Safety, 348 N.W.2d 803, 804 (Minn. App. 1984), we stated: "The only obligation an officer has in assisting the defendant in obtaining an additional test is to allow defendant use of a phone." See Minn. Stat. § 169.123, subd. 3(b) (1996) (failure or inability to obtain additional test does not preclude admission unless test was prevented or denied by police officer); Haveri v. Commissioner of Pub. Safety, 552 N.W.2d 762, 765 (Minn. App. 1996) (drawing a distinction between an officer failing to assist and an officer hampering an attempt to obtain an additional test), review denied (Minn. Oct. 29, 1996); Hager v. Commissioner of Pub. Safety, 382 N.W.2d 907, 911-12 (Minn. App. 1986) (finding the officer does not have a duty to ask whether the arrestee wishes to use the phone to arrange an additional test). Here, the record demonstrates that, after Macht requested an additional test, he used a telephone both before his Intoxilyzer test to call an attorney and after the test to call his wife. Under these facts, the district court properly refused to suppress the evidence of Macht's Intoxilyzer test.