This opinion will be unpublished and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


Gary Edward Mavison, petitioner,


Commissioner of Public Safety,

Filed November 23, 1999
Randall, Judge

Hennepin County District Court
File No. 476547

Richard L. Swanson, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN 55318 (for appellant)

Mike Hatch, Attorney General, Joel A. Watne, Leah Percich, Assistant Attorneys General, 200 Capitol Office Building, 525 Park Street, St. Paul, MN 55103-2106 (for respondent)

Considered and decided by Randall, Presiding Judge, Harten, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges the district court's order sustaining revocation of his driver's license. Appellant asserts that (a) he was prevented from obtaining an independent test in violation of his constitutional and statutory rights; (b) the arresting officer unlawfully searched appellant's mouth; and (c) appellant's right to counsel was not vindicated because the officer checked appellant's mouth before reading the implied consent advisory. We affirm.


Appellant Gary Edward Mavison was arrested on October 3, 1998, for driving under the influence of alcohol. After driving Mavison to the police department, the arresting officer, Renee Meuwissen, checked Mavison's mouth for foreign substances and then read him the implied consent advisory. Officer Meuwissen permitted Mavison to use the phone for approximately one and one-half hours after she read the advisory. Mavison then agreed to take an Intoxilyzer test. The test indicated that Mavison had an alcohol concentration of .15.

When he had completed the Intoxilyzer test, Mavison asked the officer if a family member could bring him a peanut butter jar that he could use to collect a urine sample for use in an independent test. Officer Meuwissen informed him that glass was not permitted in the police department for security reasons. Officer Meuwissen then provided Mavison with a BCA urine kit to hold the sample. At some point after being put in a cell, Mavison put the kit on floor, and Officer Meuwissen gave it to Mavison's father.

The commissioner revoked Mavison's driver's license, and Mavison challenged that revocation. Mavison made numerous constitutional challenges to the implied consent statute and also asserted that (a) his right to counsel had not been vindicated because he was given the implied consent advisory after his mouth was checked and (b) his statutory right to an independent test was denied. The district court rejected Mavison's constitutional arguments and sustained the revocation of Mavison's driver's license. In an amended order the district court determined that Officer Meuwissen did not violate Mavison's right to counsel by checking his mouth before reading him the implied consent advisory and determined that Mavison was not denied, or prevented from taking, an additional test.


I. Independent Test

When the facts are undisputed, as they are here, whether the police prevented or denied an additional test is a legal question. Haveri v. Commissioner of Pub. Safety, 552 N.W.2d 762, 765 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996). An appellate court reviews legal questions de novo. Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

A. Due Process Rights

Mavison first argues that he was denied his due process right to obtain exculpatory evidence because he was not allowed to obtain an independent test.[1] Mavison did not raise this due process argument at the district court level. Thus, Mavison has waived it. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (stating appellate court generally may consider only issues presented to, and considered by, district court).

Even if Mavison had not waived the issue, there is no due process violation here. Three factors should be considered when determining whether there has been a procedural due process violation

(1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and (3) the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.

Brooks v. Commissioner of Pub. Safety, 584 N.W.2d 15, 19 (Minn. App. 1998) (quotation and citation omitted), review denied (Minn. Nov. 24, 1998).

The private interest in this case is Mavison's property interest in his driver's license. See id. (recognizing driver's license is important property interest). The procedures followed by Officer Meuwissen did not cause a risk that Mavison would be erroneously deprived of his driver's license. Mavison was informed of his right to have an independent test. When Mavison asked Officer Meuwissen if one of Mavison's family members could bring him a jar, the officer informed Mavison that glass jars were not permitted in the jail. This was the only complained-of restriction placed on Mavison's right to an independent test. The officer supported her refusal to permit a glass jar by stating that the police department barred admission of glass into the jail because it could be used as a weapon. This is a reasonable restriction imposed for safety concerns. We detect no subterfuge or lack of good faith in the reasons given by respondent, and appellant alleges none. There is no evidence that Mavison made a request to have any other type of container brought into the jail. There is no evidence that the use of an alternative container would have affected the results of an independent test. Mavison's procedural due process rights were not violated by the officer's refusal to permit a glass jar in the jail.

B. Statutory Rights

Mavison further argues that his statutory right to an independent test was violated.

Minn. Stat. § 169.123, subd. 3(a) (1998), provides:

The person tested 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.

A police officer may not hinder a driver's attempt to obtain an independent test. See Minn. Stat. § 169.123, subd. 3(b) (1998) ("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."). An officer does not, however, have a duty to assist a driver in obtaining an additional test and need only permit the driver to use the phone. Frost v. Commissioner of Pub. Safety, 348 N.W.2d 803, 804 (Minn. App. 1984); see also Hager v. Commissioner of Pub. Safety, 382 N.W.2d 907, 911-12 (Minn. App. 1986) (stating officer does not have duty to ask whether driver wishes to use phone to arrange independent test).

Here, Mavison asked Officer Meuwissen if a family member could bring in a peanut butter jar, which Mavison could use to collect a urine sample. The officer informed him that glass is not permitted in the jail. Again, neither Mavison nor the officer testified that Mavison requested permission to have any other type of container brought into the jail. Instead, Officer Meuwissen testified that she gave Mavison a BCA urine kit and then gave that kit to Mavison's father. Other than informing Mavison that glass was not permitted in the jail, the officer did nothing to hinder Mavison's ability to obtain an independent test. Additionally, the officer attempted to help him by giving him a BCA urine kit. Cf. State v. Hatlestad, 347 N.W.2d 843, 845 (Minn. App. 1984) (noting officer gave more assistance than statute demands when officer telephoned hospitals for defendant). Mavison was not denied his statutory right to an independent test.

II. Mouth Inspection

A. Fourth Amendment Rights

Constitutional issues are reviewed de novo on appeal. State v. Sewell, 595 N.W.2d 207, 211 (Minn. App. 1999), review denied (Minn. Aug. 25, 1999). Mavison argues that the inspection of his mouth was an unlawful search and a violation of the Fourth Amendment. This issue was neither presented to, nor decided by, the district court. See Thiele, 425 N.W.2d at 582 (stating appellate court generally may consider only those issues presented to, and considered by, district court). Thus, Mavison has waived his right to have this issue addressed on appeal.

Even if Mavison had not waived this issue, we disagree with his assertion that his Fourth Amendment rights were violated. As Mavison emphasizes, the supreme court recently recognized that an officer's request that a suspect open his mouth constitutes a search. See State v. Hardy, 577 N.W.2d 212, 216 (Minn. 1998) (stating officer's request of suspect to open mouth constituted search). However, Mavison fails to note that the defendant in Hardy had not been placed under arrest at the time the officer asked him to open his mouth. The parties agree that Mavison was under arrest at the time his mouth was checked. The search of a defendant's person incident to an arrest is an exception to the warrant requirement. Id.; see also Carradine v. State, 494 N.W.2d 77, 83 (Minn. App. 1992) ("[A] full search of the person incident to the arrest not only is an exception to the Fourth Amendment's warrant requirement, but also is a reasonable search under that amendment without a showing of probable cause that weapons or evidence would be found." (citing United States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477 (1973))), aff'd in part, rev'd in part on other grounds, 511 N.W.2d 733 (Minn. 1994). If the arrest is lawful, the officer need not articulate additional justification for a search. Carradine, 494 N.W.2d at 83. Because Mavison was under arrest at the time his mouth was searched, and does not challenge the lawfulness of that arrest, we reject the argument that this was an unlawful search.

Mavison further argues that because the officer lacked probable cause to search his mouth, the fruits of that search must be excluded from evidence. Officer Meuwissen found nothing in Mavison's mouth, except "teeth and tongue." Even assuming an unlawful search of Mavison's mouth, the exclusion of the fact that the officer found nothing does not affect the outcome of the case.

B. Right to Counsel

If the facts are undisputed, "[w]hether a driver's right to counsel was vindicated becomes a question of law for the appellate court." Gergen v. Commissioner of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996) (citation omitted), review denied (Minn. Aug. 6, 1996). The facts in this case are undisputed.

Mavison argues that his right to counsel was violated because the arresting officer did not read the implied consent advisory to him before checking his mouth for foreign objects. Mavison asserts that checking his mouth was an integral part of the Intoxilyzer test.

The arresting officer testified that checking the driver's mouth for foreign objects is recommended procedure. She further testified that there is a 15-minute waiting period before giving an Intoxilyzer test if the mouth is checked and a 20-minute waiting period if it is not checked. Here, the officer checked Mavison's mouth at 8:17 p.m. and administered the Intoxilyzer test at 9:57 p.m., after Mavison was given an opportunity to use the telephone. Therefore, the observation period exceeded 20 minutes. Based on the officer's testimony (on which Mavison relies for his argument that checking the mouth is an integral part of the test), checking the mouth was not a recommended procedure here because more than 20 minutes had elapsed.

Assuming error, for the sake of discussion, there is still no reversible error. We do understand Mavison's argument. Because respondent does not dispute that checking the mouth is part of the recommended procedure, the reading of the implied consent advisory should come before any part of the test has been started. An officer is required to inform a person of his right to consult an attorney "[a]t the time a test is requested." Minn. Stat. § 169.123, subd. 2(b) (1998) (emphasis added). The supreme court has recognized "that the right to counsel attaches at the chemical testing stage." Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).

"[A]ny person who is required to decide whether he will submit to a chemical test * * * shall have the right to consult with a lawyer of his own choosing before making that decision, provided that such a consultation does not unreasonably delay the administration of the test."

Id. (quoting Prideaux v. State, Dep't of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976)) (alteration in original).

Here, Officer Meuwissen read the implied consent advisory, informing Mavison of his right to an attorney, before asking him to submit to a test. But, the officer conducted one step of that test, the checking of the mouth, before reading the implied consent advisory. A preferable chronology would have been to read the implied consent advisory before any part of the test procedure was started. But here, because nothing was found in the mouth, appellant suffered no prejudice and the point is moot. In general, the officer followed the statutory guidelines and those announced by the supreme court in Friedman. Mavison was not denied his right to counsel.


[1] As respondent notes, in Brooks v. Commissioner of Pub. Safety, 584 N.W.2d 15, 20 (Minn. App. 1998), review denied (Minn. Nov. 24, 1998), this court held that because implied consent hearings are not criminal proceedings, the commissioner is not obligated to disclose exculpatory evidence in its possession to defendants. See Brady v. Maryland, 373 U.S. 83, 87-88, 83 S. Ct. 1194, 1196-97 (1963) (stating prosecution must disclose exculpatory evidence). Brooks is distinguishable from the instant case. Mavison is not attempting to obtain evidence in the commissioner's possession but is, instead, asserting that he had a procedural due process right to gather it himself by obtaining an independent test.