STATE OF MINNESOTA
IN COURT OF APPEALS
C0-99-805

Douglas Floyd Trnka, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

McLeod County District Court
File No. C098703

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

Mike Hatch, Attorney General, Kelly S. Kemp, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106 (for respondent)

Considered and decided by Randall, Presiding Judge, Klaphake, Judge, and Peterson, Judge.

PETERSON, Judge

In this appeal from an order sustaining the revocation of his driver's license, appellant Douglas Floyd Trnka argues that the police prevented him from exercising his right to independent testing under Minn. Stat. § 169.123, subd. 3 (1998), by denying his brother access to the jail to administer a test. We affirm.

Trnka was arrested for DWI and taken to the McLeod County jail where he was read the implied consent advisory. After speaking with his attorney, Trnka said that he would take a breath test, but he also wished to have an independent urine test administered after the breath test. He asked that his brother be allowed into the jail to administer the urine test. Trnka was told that jail policy would not allow his brother into the jail to administer the test. He was also told that he could give a urine sample in the jail and the sample could be handed to his brother outside the jail, or a laboratory technician could enter the jail and administer the test.

Trnka then asked to call his attorney a second time and he was allowed to do so. After speaking with his attorney, Trnka decided to give the sample in the jail and have his brother pick it up. Trnka was taken from a holding cell to a jail bathroom and provided with a BCA urine kit to use to collect a urine sample. A police officer watched Trnka urinate into the container. The sample was then given to his brother who was outside the secure portion of the jail.

Because Trnka’s alcohol concentration was more than .10, his driver’s license was revoked pursuant to Minn. Stat. § 169.123, subd. 4(e) (1998). Trnka filed a petition for judicial review, arguing that (1) he was prevented from obtaining an additional test administered by a person of his own choosing; and (2) the 1997 amendments to the implied consent statute violated the federal and state constitutions. Following a review hearing, the district court sustained the revocation of Trnka’s driver’s license.

I.

A district court’s findings of fact must be sustained unless they are clearly erroneous. Frost v. Commissioner of Pub. Safety, 348 N.W.2d 803, 804 (Minn. App. 1984). Conclusions of law may be overturned only upon a showing that the district court erroneously applied the law to the facts. Brooks v. Commissioner of Pub. Safety, 584 N.W.2d 15, 17 (Minn. Apr. 1998), review denied (Minn. Nov. 24, 1998).

Trnka argues that the results of the state-administered breath test should not have been admitted into evidence against him because he was prohibited from obtaining an independent test by a person of his own choosing.

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

(a) Only a physician, medical technician, physician’s trained mobile intensive care paramedic, registered nurse, medical technologist or laboratory assistant acting at the request of a peace officer may withdraw blood for the purpose of determining the presence of alcohol, controlled substances, or hazardous substances. This limitation does not apply to the taking of a breath or urine sample. 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.

(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.

Trnka argues that the police prevented him from exercising his statutory right to an independent chemical test by not allowing his brother to come into the jail to administer a urine test.

The statutory right to obtain an additional test is a limited right. Theel v. Commissioner of Pub. Safety, 447 N.W.2d 472, 474 (Minn. App. 1989), review denied (Minn. Jan. 8, 1990). In determining whether police have prevented or denied an additional test, we have distinguished between an officer’s failure to assist a motorist in obtaining the test and an officer’s hampering a motorist’s attempt to obtain the test. Id. "The only obligation an officer has in assisting the defendant in obtaining an additional test is to allow defendant use of a phone." Frost, 348 N.W.2d at 804; see also State v. Hatlestad, 347 N.W.2d 843, 845 (Minn. App. 1984) (officer has no duty to furnish supplies or transportation for an additional test). But if an officer hampers a motorist’s attempt to secure an additional test, results of the state-administered test are inadmissible. See State v. Shifflet, 556 N.W.2d 224, 225, 228 (Minn. App. 1996) (chemical test results were inadmissible where person arrived at jail to obtain appellant’s urine sample for an independent test, but that person was denied access for three hours and finally told that he would not be permitted to conduct an independent test).

The police officers at the McLeod County jail did not prevent Trnka from obtaining an additional test. The procedures followed in the jail permitted Trnka to obtain a urine sample, and he was free to have the sample tested in any manner he chose by whomever he chose. We are not persuaded by Trnka’s argument that the right to have someone of his own choosing administer a chemical test included the right to have someone of his own choosing present when he produced the urine sample to be tested.

Trnka has not explained why we should conclude that observing the collection of a urine sample is part of the process of administering a chemical test. And, more importantly, he has not explained how the procedures followed in the McLeod County jail in any way affected his ability to obtain a valid, independent chemical test of his urine. He has not alleged that the urine sample handed to his brother was tainted or in any other way unsuitable for chemical testing. Absent any evidence that the officers’ conduct prevented Trnka from obtaining valid, independent chemical test results, we conclude that Trnka’s right to independent testing was not violated.

II.

Trnka argues for the first time on appeal, that he was denied his due process right to obtain exculpatory evidence. At the review hearing, Trnka’s attorney stated that the only issues to be reviewed by the district court were whether Trnka’s right to an independent test by someone of his own choosing was vindicated, and whether the amended implied consent statute violated the state and federal constitutions. Because Trnka failed to make his due process argument in the district court, this issue is not properly before this court, and we will not address it. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (reviewing courts may only consider those issues that the record shows were presented to and considered by the district court); see also Weierke v. Commissioner of Pub. Safety, 578 N.W.2d 815, 816 (Minn. App. 1998) (refusing to review due process issue that was not raised during review hearing).

Affirmed.