Minn. Stat. § 480A.08, subd. 3 (1996).
IN COURT OF APPEALS
Bertha Jean Houtsma,
File No. T6964590
Kenneth Kohler, Nobles County Attorney, Harris I. Darling, Assistant County Attorney, 912 Third Avenue, Post Office Box 607, Worthington, MN 56187-0607 (for respondent)
Samuel A. McCloud, Kelly Vince Griffitts, Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (for appellant)
Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.
U N P U B L I S H E D O P I N I O N
Appellant Bertha Jean Houtsma challenges her driving while under the influence conviction, arguing her blood test should have been suppressed because her statutory right to an independent test was violated. We affirm.
On November 29, 1996, Trooper Eric Vaselaar arrested Houtsma for driving while under the influence. Houtsma was then taken to the Worthington County Law Enforcement Center where she was read the implied consent advisory. Houtsma indicated that she wished to speak to her attorney. Vaselaar provided her with a phone, and, after speaking with her attorney, Houtsma informed Vaselaar that she had been advised to obtain her own blood test. Vaselaar then asked Houtsma if she would also provide him with a blood test and she agreed. Houtsma was transported to Worthington Regional Hospital and a blood sample was taken. The result of the blood test showed her blood alcohol concentration to be .12. At the hospital Houtsma never inquired about taking her own blood test nor did Vaselaar remind her of her earlier request.
At the omnibus hearing, Houtsma made a motion to suppress the blood test, claiming that the officer violated her statutory right to obtain her own blood test. The trial court denied her motion, indicating that the officer's failure to take any steps to secure an additional test for Houtsma at the hospital was not tantamount to his preventing or denying her right to secure an additional test. Houtsma then agreed to waive a jury trial and submit the case to the court on stipulated facts. The court found Houtsma guilty and stayed her sentence. This appeal followed.
D E C I S I O N
The Minnesota's Implied Consent Law provides that, in addition to the test administered at the direction of the officer, an individual is entitled to have someone of his or her own choosing administer a test. Minn. Stat. § 169.123 subd. 3(a) (1996).
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.
Id., subd. 3(b) (emphasis added).
There is a distinction between cases where the officer "fail[s] to assist" versus where the officer "hamper[s] an attempt" to obtain an additional test. Theel v. Commissioner of Pub. Safety, 447 N.W.2d 472, 474 (Minn. App. 1989), review denied (Minn. Jan. 8, 1990). An officer only has an obligation to allow the driver to use the telephone. Id. An officer is neither required to talk to a doctor or arrange a test. Haveri, 552 N.W.2d at 765 (holding officer did not prevent or deny additional test because, while officers must allow additional test, they are not required to act affirmatively to facilitate the test).
In this case, Vaselaar, was not required by statute to remind Houtsma of her earlier request for an independent test. The statute punishes actions by an officer that prevent or deny the defendant's right to secure an independent test. See Theel, 447 N.W.2d at 474 (reversing license revocation where officer hindered defendant's attempt to call attorney for assistance in getting additional test). Vaselaar's actions do not amount to a prevention or denial.
RANDALL, Judge (concurring specially).
I concur in the result. Law enforcement neither prevented nor denied Houtsma's right to get her own test. In fact, at no expense to Houtsma, the trooper drove her to the hospital. But it has to be noted that when she asked about her own blood test, after consulting with her attorney, he first negotiated with her about giving him a blood test rather than the breath test he originally suggested. This was self-serving on the officer's part. It was legitimately self-serving, but self-serving nevertheless. The second she asked about a blood test, he said, "Well, if I let you have a blood test, will you give me one too?" It had immediately occurred to the officer that if she was going to have an independent blood test, his own blood test taken contemporaneously at the same place would likely validate his test and take away the possible issue later if the breath test he originally wanted differed from her own blood test.
Put another way, he knew it was highly likely that two blood tests taken by the same personnel at the same hospital in a back-to-back situation would corroborate each other. If each was .10 or more, his case would be greatly enhanced, and if both were less than .10, there would be reasonably credible evidence to rethink the charge.
Because appellant was to some degree intoxicated, it is probable that when the officer agreed to take her to the hospital, she got confused and assumed that the test that was given was "her" test, not knowing that it was only "his" test. This is the most rational explanation for her, not even mentioning a test for herself when she got to the hospital after specifically requesting one for herself from the officer. When he got her to the hospital, it would not have hurt his case or the administration of justice, nor been a violation of the rules, to simply state something to this effect:
Now remember, Miss "X", the blood test you will be taking shortly is my test. If you want an independent test for yourself, you should point that out to the hospital personnel so they take a second and an independent sample for you.
There would have been no danger that the officer was "telling her too much" or improperly advising her of her legal rights. The two had previously had that discussion. She had already articulated her intent to assert her right to an independent test, and he acknowledged that and acquiesced in that. The above statement that I suggest he should have made to her at the hospital to keep the playing field level would have been a simple objective statement of fact. It would not have been "legal" advice. It would not have been an inference that she should do anything or not do anything. It simply would have been the truth and would have been a simple restatement of the conversation the two had previously had and that he agreed to.
I concur in the result because he did nothing to prevent "or hinder" her from having her test. But I suggest that the administration of justice is not a "gotcha" game between a defendant and law enforcement. A simple truthful statement, from time to time, between someone who knows, here the officer, and someone who probably did not, here appellant, would overall serve the twin interests of public safety and a driver's legal rights.