Faison T. Sessoms, Jr., 840 Midland Square Building, 331 Second Avenue South, Minneapolis, MN 55401 (For Appellant)

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

Anthony C. Brunell appeals from an order sustaining revocation of his driving privileges under Minn. Stat. § 169.123 (1996). He challenges the trial court's conclusion that his statutory right to an additional test was not prevented or denied by the police.

Because the police gave Brunell unrestricted access to a telephone and telephone book for 35 minutes, and interrupted him only after he made over 15 calls and actually reached his attorney and a friend, we affirm.

In this case, the record establishes: (1) Brunell was read the implied consent advisory; (2) Brunell declined the opportunity to contact an attorney prior to testing and submitted to an Intoxilyzer test which measured his alcohol concentration at .17; (3) Brunell decided to obtain an additional test; (4) police gave Brunell unrestricted access to a telephone and telephone book for 35 minutes to arrange for an additional test; (5) during that time, Brunell made between 15 and 20 calls before reaching his attorney; (6) Brunell spoke with his attorney, but decided to call a friend to assist him in obtaining an additional test; (7) Brunell then called the friend, who refused to come to the jail because he believed he was too drunk to drive; and (8) police interrupted Brunell's conversation, told him to get off the phone because it was a busy time at the police department, and locked him in a cell. Although Brunell testified that he wanted to make other calls, possibly to his parents or girlfriend, he made no offer of proof that these people were available or that he could have succeeded in obtaining an additional test. Given these undisputed facts, the district court did not err in concluding that the police did not prevent or deny an additional test. See Haveri, 552 N.W.2d at 765 (when facts undisputed, issue of whether police prevented or denied additional test is question of law).

Brunell nevertheless insists that the fact that the police were "busy" cannot justify terminating his right to an additional test because he had a constitutional right to access this potentially exculpatory evidence. See State v. Shifflet, 556 N.W.2d 224, 228 (Minn. App. 1996) (citing Trombetta v. California, 467 U.S. 479, 485, 104 S. Ct. 2528, 2532 (1984)). Even assuming this constitutional right is implicated, however, it was clearly vindicated because Brunell was given a meaningful opportunity to present a complete defense: he actually contacted his attorney, but decided against having the attorney assist him and instead called a friend to make other arrangements. The police in this case did nothing to prevent Brunell from obtaining an additional test.

Brunell further insists that he should have been allowed to continue to place calls for an additional test until the potential evidentiary value of that test was lost. We disagree. Acceptance of Brunell's position is inherently problematic. It would not only require police to calculate exactly when an additional test would have no evidentiary value, but would also require the police to utilize their limited time and resources in supervising a person seeking an additional test.

Finally, Brunell insists that in determining when a suspect's access to a telephone should be terminated, the police should be required to consider a suspect's attitude, the time of day, and the time elapsed since the police-administered test. In another case with different facts, these considerations might be important in determining the reasonableness of police action and whether police prevented or denied an additional test. Here, however, these considerations do not help Brunell, who actually contacted his attorney but decided to attempt to make other arrangements for an additional test.

We therefore affirm the order sustaining revocation of Brunell's driver's license.

Affirmed.