C9-02-1642

Kathleen Ellen Hoffman, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed April 22, 2003

Affirmed

Kalitowski, Judge

Ramsey County District Court

File No. C1023364

Jeffrey S. Sheridan, Strandemo & Sheridan, P.A., 320 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, MN 55121 (for appellant)

Mike Hatch, Attorney General, Matthew Frank, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

Considered and decided by Minge, Presiding Judge, Kalitowski, Judge, and Poritsky, Judge.*

U N P U B L I S H E D O P I N I O N

KALITOWSKI, Judge

Appellant Kathleen Ellen Hoffman contends that the police prevented or denied her from obtaining an independent test following her arrest on suspicion that she had been driving while under the influence of alcohol. We affirm.

D E C I S I O N

The failure or inability to obtain an independent test does not preclude the admission in evidence of the test taken at the direction of a peace officer unless the independent test was prevented or denied by the peace officer. Minn. Stat. § 169A.51, subd. 7(b) (2002). The question of whether a driver’s right to an independent test was prevented or denied is a mixed question of fact and law. Haveri v. Comm’r of Pub. Safety, 552 N.W.2d 762, 765 (Minn. App. 1996). Once the district court makes findings of fact, the reviewing court conducts a de novo review to determine whether, as a matter of law, the driver’s right to an independent test was prevented or denied. Id.

A driver who has been tested under the implied consent law has the right to have someone of the driver’s own choosing administer an independent test as long as the independent test (1) is obtained at the place where the person is in custody; (2) is conducted after the test is administered at the direction of a peace officer; and (3) comes at no expense to the state. Minn. Stat. § 169A.51, subd. 7(b). And police officers must not hinder a driver’s attempt to obtain an independent test. Theel v. Comm’r of Pub. Safety, 447 N.W.2d 472, 474 (Minn. App. 1989). But an arresting officer has no duty to furnish supplies or transportation to assist a driver in obtaining an independent test. State v. Hatlestad, 347 N.W.2d 843, 845 (Minn. App. 1984). The officer is only required to provide a telephone so that the driver can arrange for the test on her own. Frost v. Comm’r of Pub. Safety, 348 N.W.2d 803, 804 (Minn. App. 1984).

Here, while appellant was in custody at the Ramsey County annex, approximately two and a quarter hours after she was arrested, the police allowed appellant to use a phone for the purpose of obtaining an independent test. But appellant argues that she was prevented or denied her right to an independent test because the arresting officer did not provide appellant with a telephone while appellant was in custody at the White Bear Lake police station.

In Short v. Comm’r of Pub. Safety, 422 N.W.2d 40 (Minn. App. 1988), this court determined that a defendant was not prevented or denied from arranging for an independent test when the defendant, after requesting an independent test, had to wait one hour at the St. Paul police department before he was allowed to use a phone to call his attorney. Id. at 42. Here, a little more than an hour after appellant requested an independent test, she was given a phone at the Ramsey County annex to arrange the test. Following Short, we conclude that on these facts appellant was not prevented or denied her right to an independent test.

In arguing that her rights were violated appellant points to language in the statute that says a driver has a right to an independent test at the place where the driver is in custody. Minn. Stat. § 169A.51, subd. 7(b). But appellant was in custody when she arrived at the Ramsey County annex. And once appellant arrived at the annex, appellant was provided with a telephone. Therefore, the actions of the arresting officer did not prevent or deny appellant’s right to an independent test.

Appellant next argues that the officer responsible for transporting her to the Ramsey County annex prevented or denied her right to an independent test on two occasions: (1) by handing appellant over to the Ramsey County jail staff for booking before she was able to complete arrangements for an independent test; and (2) by not providing her with a phone after the booking process was complete.

In determining whether an independent test has been prevented or denied, a distinction must be drawn between an officer’s failure to assist and an officer’s interference with an attempt to obtain an independent test. Haveri, 552 N.W.2d at 765. Here, the officer provided appellant with a phone once the officer and appellant arrived at the Ramsey County annex. Appellant used that phone for approximately 30 minutes and made numerous calls attempting to arrange for an independent test. At approximately 4:30 a.m., appellant stopped making calls and asked to use the restroom. After returning from the restroom, appellant was taken through the booking process, which ended at approximately 6:00 a.m.

On these facts, we conclude the officer did not hamper any attempt by appellant to obtain a test. The officer was under no duty to ask appellant if she again wanted to use a phone after she returned from the restroom or after the booking process was complete. See Hager v. Comm’r of Pub. Safety, 382 N.W.2d 907, 911-12 (Minn. App. 1986) (stating that an officer has no duty to ask whether the arrestee wishes to use the phone to arrange an additional test). And there is no evidence in the record that indicates that appellant made another request to use a phone. Therefore, since appellant never again asked to use the phone, the officer’s actions did not prevent or deny appellant from obtaining an independent test.

Appellant argues that even if appellant had requested the use of a phone after the booking process was complete, that request would have been pointless because by that time, too much time had elapsed and any test results would have had little probative value. Therefore, appellant contends that the act of handing appellant over to the annex staff for booking prevented or denied appellant her right to an independent test. We disagree.

This court has affirmed the admission of tests administered as much as 11 1/2 hours after driving. State v. Jensen, 482 N.W.2d 238, 239-40 (Minn. App. 1992), review denied (Minn. May 15, 1992). Given appellant’s alcohol concentration of .20 at 2:55 a.m., it would likely have been more than five hours before her concentration would have dipped below .10, the statutory limit. See id. at 240 (discussing the elimination rate after alcohol consumption). Therefore, this record does not support appellant’s claim that the officer denied or prevented appellant from obtaining an independent test. After appellant was released from booking, approximately three hours had passed since appellant’s intoxilyzer test. Thus, appellant still had time to make arrangements for an independent test but did not make a request to do so.

Affirmed.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.