may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Adam Bernard Schreifels[*], petitioner,
Commissioner of Public Safety,
Filed July 6, 1999
Hennepin County District Court
File No. 476106
Faison T. Sessoms, Jr., 840 Midland Square Building, 331 Second Avenue South, Minneapolis, MN 55401 (for respondent)
Mike Hatch, Attorney General, Michael R. Pahl, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for appellant)
Considered and decided by Peterson, Presiding Judge, Short, Judge, and Shumaker, Judge.
The driving privileges of Adam Bernard Schreifels were revoked pursuant to Minn. Stat. § 169.123, subd. 4 (1998). The trial court rescinded the revocation after concluding the factual-statement pleading requirement in the implied consent law violated Schreifels's Fifth Amendment rights. See Minn. Stat. § 169.123, subd. 5c(b)(3) (1998) (requiring statement of facts in petition for review of license revocation). On appeal, the state argues Schreifels was not harmed by the factual-statement pleading requirement and the amended implied consent law is constitutional. By notice of review, Schreifels argues the trial court erred by failing to address his right to additional testing. We reverse.
The state argues the trial court erroneously concluded Schreifels's Fifth Amendment rights were violated by the factual-statement pleading requirement of the amended implied consent statute. The record shows: (1) Schreifels's petition for review contained 16 claims for relief without any factual basis; and (2) there are no incriminating facts in the petition. Under these circumstances, Schreifels has not been harmed by the petition requirements and lacks standing to constitutionally challenge Minn. Stat. § 169.123, subd. 5c(b)(3). See Kennedy, 544 N.W.2d at 6 (noting hypothetical injuries do not establish standing); City of Minneapolis v. Wurtele, 291 N.W.2d 386, 393 (Minn. 1980) (requiring party to show direct and personal harm to establish standing).
Schreifels argues the trial court erred by failing to make findings of fact or conclusions of law on his right to additional, independent testing. See Minn. Stat. § 169.123, subd. 3(a)-(b) (1998) (defining driver's right to additional testing). But the record demonstrates: (1) the police officer read the Implied Consent Advisory to Schreifels; (2) Schreifels used a telephone to consult with an attorney; and (3) Schreifels was given a number to call for independent testing, but chose not to make the call. Because the police officer provided access to a telephone and Schreifels elected not to seek additional testing, we conclude, as a matter of law, that Schreifels was not denied his right to additional testing. See Frost v. Commissioner of Pub. Safety, 348 N.W.2d 803, 804 (Minn. App. 1984) (stating "[t]he only obligation an officer has in assisting the [driver] in obtaining an additional test is to allow [the driver] use of a phone); see also Haveri v. Commissioner of Pub. Safety, 552 N.W.2d 762, 765 (Minn. App. 1996) (drawing distinction between police officer failing to assist in testing and police officer hampering testing in concluding officer need not act affirmatively to facilitate additional testing), review denied (Minn. Oct. 29, 1996). Accordingly, we reverse the trial court's order rescinding revocation of Schreifels's driving privileges.
[*] In some documents, respondent's name is misspelled as "Schiefels" instead of "Schreifels."