Frost v. Commissioner of Public Safety for State of Minn., C3-83-1500
| Decision Date | 15 May 1984 |
| Docket Number | No. C3-83-1500,C3-83-1500 |
| Citation | 348 N.W.2d 803 |
| Parties | Kelly John FROST, petitioner, Appellant, v. The COMMISSIONER OF PUBLIC SAFETY FOR the STATE OF MINNESOTA, Respondent. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
Minn.Stat. Sec. 169.123, subd. 3 (1982), does not require an arresting officer to hold a person arrested for DWI in custody until an additional test can be administered. Once released the person is free to obtain any kind of additional test at any place the person chooses.
Mark Alexis Masica, Minneapolis, for appellant.
Hubert H. Humphrey, III, Atty. Gen., Linda F. Close, Joel A. Watne, Sp. Asst. Attys. Gen., St. Paul, for respondent.
Heard, considered and decided by SEDGWICK, P.J., PARKER and CRIPPEN, JJ.
This is an appeal from an implied consent order sustaining revocation of appellant's driving privileges for 90 days. We affirm.
Officer David Thompson, Plymouth Police Department, pulled defendant over after clocking him on radar speeding. Officer Thompson detected alcohol on defendant Kelly Frost's breath and asked him to perform field sobriety tests. He then administered a preliminary screening test, using an instrument calibrated to read "fail" at an alcohol concentration of .11 or more. Defendant obtained a "fail" reading. A second test administered after defendant spit out tobacco he had been chewing also resulted in a fail reading.
Officer Thompson contacted defendant's father, an attorney, who advised his son to take the breath test. He also advised Officer Thompson that he wanted his son to have an independent blood-alcohol test administered.
Defendant was taken to the Plymouth police station, read the implied consent advisory, and took the breath test. His reading was .12.
Defendant's father called a doctor from home to arrange a supplemental blood test. He did not finalize arrangements with the doctor because he was not certain where the test should be taken.
He then went to the Plymouth police station. After waiting for about a half hour he was allowed to use a phone to call the doctor. He asked Officer Thompson to talk to the doctor to finalize the arrangements, but the officer refused. Defendant's father never actually asked the doctor to come to the police station.
Officer Thompson told defendant and his father that he was not going to wait around for a doctor to come to the station and if they wished to have additional tests taken they should get the tests taken after leaving the station.
Upon defendant's release from custody, he did not have additional tests made, because his father believed that any test taken away from the police station would have no value. Defendant's driving privileges were revoked. He appeals raising the following issue.
Does the evidence show that the peace officer denied or prevented defendant from obtaining an independent blood-alcohol test?
The trial court, sitting without a jury, found that Officer Thompson did not prevent appellant from obtaining an independent test of his blood by a person of his own choosing. In the absence of a jury, due regard will be given to the trial court's opportunity to judge the credibility of the witnesses, and findings of fact will not be set aside unless clearly erroneous. Bergstedt, Wahlberg, Berquist Assoc. v. Rothchild, 302 Minn. 476, 225 N.W.2d 261 (1975).
Appellant claims the officer prevented a second test by refusing to assist appellant in obtaining one. Minn.Stat. Sec. 169.123, subd. 3 (1983), in relevant part provides:
The person tested has the right to have a person of his own choosing administer a chemical test or tests in addition to any administered at the direction of the peace officer; provided, that the additional test specimen 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...
To continue reading
Request your trial
-
Davis v. Commissioner of Public Safety
...no expense to the state). Further, the attorney may assist the driver in obtaining the additional test. Cf. Frost v. Commissioner of Pub. Safety, 348 N.W.2d 803, 804 (Minn.App.1984) (only assistance officer must offer driver in obtaining additional test is to allow use of Once the supreme c......
- Bender v. Bernhard
-
Poeschel v. Comm'r of Pub. Safety
...has in assisting the defendant in obtaining an additional test is to allow defendant use of a phone." Frost v. Comm'r of Pub. Safety, 348 N.W.2d 803, 804 (Minn.App.1984). The officer is not required to arrange an opportunity for a driver to obtain additional testing. Hager v. Comm'r of Pub.......
-
Bender v. Bernhard
...of the expert, surveying of the land, and establishment of the reputed boundary . . . were all accomplished after trial." Kozak, 348 N.W.2d at 803. The court of appeals also emphasized that "[t]he exercise of the same diligence prior to trial may have produced" the same result produced afte......