This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Jerome S. Bischoff,


Filed April 14, 1998


Huspeni, Judge

Itasca County District Court

File No. K9961472

John M. Stuart, State Public Defender, Sharon Jacks, Asst. Public Defender, 2829 University Ave. S.E. #600, Minneapolis, MN 55414 (for appellant)

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota St., St. Paul, MN 55101; Kent Nyberg, Coleraine City Attorney, 20 N.E. Fourth St., Suite 101, Grand Rapids, MN 55744 (for respondent)

Considered and decided by Schumacher, Presiding Judge, Huspeni, Judge, and Shumaker, Judge.



Appellant Jerome Bischoff challenges his DWI conviction arguing that blood alcohol test results obtained by police should have been excluded from evidence. Because police complied with Minn. Stat. § 169.123, subd. 3 (1996), and did not hamper appellant's right to obtain an independent alcohol concentration test, we affirm.


Police arrested appellant Jerome Bischoff and charged him with driving while intoxicated. After he failed field sobriety tests, police transported appellant to the Itasca County jail. Before police tested his blood alcohol level, he was given the opportunity to call an attorney. He was unable to reach one. One hour and 20 minutes after he was stopped, appellant took an Intoxilyzer test with a .12 result. After he was placed in a jail cell, appellant told the jailer that he wanted to go to the hospital to obtain his own test; police told him they would not transport him.

Following a court trial on stipulated facts, appellant was convicted of violating Minn. Stat. § 169.121, subd. 1(d) (1996), driving while intoxicated. He appeals, arguing that the results of the Intoxilyzer test should have been excluded because the police hampered his right to obtain an independent alcohol concentration test.


Under Minn. Stat. § 169.123, subd. 3 (1996):

(a) * * * [A] person tested [for the presence of alcohol] 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.

(b) 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.

The right to exclude an alcohol test if police prevent or deny an additional test extends to DWI defendants. State v. Shifflet, 556 N.W.2d 224, 228 (Minn. App. 1996). We review application of the statute to these undisputed facts as an issue of law subject to de novo review. See Haveri v. Commissioner of Pub. Safety, 552 N.W.2d 762, 765 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).

Courts * * * distinguish[] between situations in which an officer has failed to assist and those in which the officer has hampered an attempt to obtain a test.

Theel v. Commissioner of Pub. Safety, 447 N.W.2d 472, 474 (Minn. App. 1989), review denied (Minn. Jan. 8, 1990). Police need not assist a defendant; the only obligation police have under the statute is to allow the use of a telephone. Id.

Appellant argues that because he was unable to contact an attorney and specifically requested an independent test, police needed to explain how he could obtain an additional test. We disagree. Police do not have an obligation even to inform a driver of the right to additional independent testing, and clearly have none to inform a driver how to go about obtaining it. See Ruffenach v. Commissioner of Pub. Safety, 528 N.W.2d 254, 255-57 (Minn. App. 1995) (holding officer's legal obligation ends when advisory is read; recognizing recent statutory amendment eliminating from advisory requirement that defendant be informed of right to additional independent test).

Appellant relies on Theel where we held that a defendant's right was hindered. 447 N.W.2d at 474 (officer hindered appellant's right to call an attorney to assist in obtaining an independent test). Theel does not aid appellant. The focus of that decision was police refusal to allow a defendant, in spite of his specific request, to contact an attorney to help obtain an additional test. Id. at 473-74. Here, appellant does not claim interference with his right to contact an attorney to assist him. Instead, the district court specifically found that the Itasca County jail is equipped with telephones and presumably appellant was free to contact an attorney to assist him at any time. Here police fulfilled their obligation under Minn. Stat. § 169.123, subd. 3, and they were not required to further assist appellant. See id. at 474 (police need not assist); cf. Ruffenach, 528 N.W.2d at 257 (police need only read advisory required by law and provide access to telephone).

Neither can appellant establish a due process violation. He failed to make his constitutional argument before the district court and accordingly it is not within the scope of our review. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (generally appellate courts will not decide issues not raised before the district court, including constitutional questions of criminal procedure). Even if we were to consider appellant's due process argument, he points to no bad faith conduct on the part of the police that prevented him from obtaining relevant exculpatory evidence. See State v. Schmid, 487 N.W.2d 539, 541 (Minn. App. 1992) (holding that unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process), review denied (Minn. Sept. 15, 1992).