This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).


Steven Robert Eischen, petitioner,


Commissioner of Public Safety,

Filed August 3, 1999
Kalitowski, Judge

Hennepin County District Court
File No. IC476323

Robert M. Christensen, Gerald Miller & Associates, P.A., 210 North Second Street, Suite 100, Minneapolis, MN 55401-1414 (for appellant)

Mike Hatch, Attorney General, Max A. Keller, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for respondent)

Considered and decided by Crippen, Presiding Judge, Lansing, Judge, and Kalitowski, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant Steven R. Eischen challenges the district court's order sustaining the revocation of his driver's license, arguing the district court erred in finding that the police did not deny or prevent appellant from having additional chemical testing. We affirm.


Late in the evening of August 6, 1998, appellant was arrested for driving while intoxicated. He was taken to the Plymouth police department, where he consented to a breath test around 1:00 a.m. He told the officers at the Plymouth police station that he wanted to make arrangements for additional testing. He was given access to a telephone, called his lawyer and his mother, asking his mother to administer the second test. Appellant was told he would be transferred to the Hennepin County Adult Detention Center (HCADC), so he asked his mother to come to HCADC instead of the police station to administer the test.

Appellant was not transported from the police station to HCADC until 3:00 a.m., well after he had expected to be moved. Because appellant's mother had gone to HCADC there was a long delay between when she arrived at the jail and when appellant arrived. Although appellant's mother informed the first deputy with whom she spoke that she was there to administer the second chemical test, she did not inform the other officers on duty as the night progressed. When appellant finally arrived at the jail around 4:00 a.m. he was unavailable for testing because of the booking process. Appellant's mother eventually went home without ever seeing her son.


A person has the right to chemical testing in addition to that performed by a police officer, provided that the additional test is obtained where the person is in custody, is administered after the test performed by a peace officer, and is administered at no expense to the state. Minn. Stat. § 169.123, subd. 3(a) (1998). The failure or inability to obtain an additional test

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.

Minn. Stat. § 169.123, subd. 3(b) (emphasis added).

Here, the district court sustained the revocation of appellant's driver's license, finding that there was a "major mixup in communication" that did not amount to a denial or prevention of appellant's right to additional testing. The court noted that appellant's mother did not "ask [about administering the second test] at the appropriate time with the appropriate people." Appellant argues that the police prevented or denied him from obtaining additional chemical testing. We disagree.

Generally, the district court's findings must be sustained unless clearly erroneous. Frost v. Commissioner of Pub. Safety, 348 N.W.2d 803, 804 (Minn. App. 1984). But conclusions of law may be overturned only "upon a determination that the trial court has erroneously construed and applied the law to the facts of the case." Dehn v. Commissioner of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986); see Haveri v. Commissioner of Pub. Safety, 552 N.W.2d 762, 765 (Minn. App. 1996) (finding that given the undisputed facts, the question of whether the police prevented or denied an additional test is a question of law).

The only obligation an officer has in assisting a defendant to obtain an additional chemical test is to provide the defendant the use of a telephone. Frost, 348 N.W.2d at 804. An officer has no duty to "furnish supplies or transportation, and a test is neither prevented nor denied when such assistance is refused." Theel v. Commissioner of Pub. Safety, 447 N.W.2d 472, 474 (Minn. App. 1989). Further, although an officer must allow a sample to be collected and an additional test to be administered, he or she "need not act affirmatively to facilitate the test." Haveri, 552 N.W.2d at 765.

Here, the lack of additional testing was not due to any purposeful action or inaction by the police, but to a series of miscommunications that resulted in neither appellant nor his mother adequately informing police that appellant wished to and was ready to submit to additional testing. See DeBoer v. Commissioner of Pub. Safety, 406 N.W.2d 43, 46 (Minn. App. 1987) (defendant did not adequately assert his right to an additional alcohol test because he did not renew his request after he spoke with his lawyer). The record supports the district court's findings that: (1) appellant's mother told the first officer with whom she spoke that she was there to administer the test but appellant was not at HCADC at that time; and (2) appellant's mother did not notify subsequent jail personnel that she wanted to administer a second test at a time when appellant was in the custody of HCADC.

Because the evidence does not support a determination that the police prevented or denied the administration of the second test, we conclude the district court properly sustained the license revocation.