Poeschel v. Comm'r of Pub. Safety

• Decision Date: 26 October 2015
• Docket Number: No. A15–0142.,A15–0142.
• Citation: 871 N.W.2d 39
• Parties: Kristin Marie POESCHEL, petitioner, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
• Court: Minnesota Court of Appeals

871 N.W.2d 39

Kristin Marie POESCHEL, petitioner, Appellant,
v.
COMMISSIONER OF PUBLIC SAFETY, Respondent.

No. A15–0142.

Court of Appeals of Minnesota.

Oct. 26, 2015.

Charles A. Ramsay, Daniel J. Koewler, Suzula R. Bidon, Ramsay Law Firm, PLLC, Roseville, MN, for appellant.

Lori Swanson, Attorney General, William J. Young, Assistant Attorney General, St. Paul, MN, for respondent.

Considered and decided by SMITH, Presiding Judge; PETERSON, Judge; and LARKIN, Judge.

871 N.W.2d 42

OPINION

LARKIN, Judge.

Appellant challenges the district court's order sustaining the revocation of her driver's license under Minnesota's implied-consent law, arguing that her statutory right to an additional chemical test was not vindicated and that her fundamental rights to due process were violated. We affirm.

FACTS

On August 4, 2014, Officer Brad Arens of the Prairie Island Police Department responded to a gas station to investigate a report that an individual was unable to pay for gasoline. Officer Arens identified the individual as appellant Kristin Marie Poeschel. Officer Arens noticed that Poeschel's speech was slurred, her eyes were glossy, and her breath smelled like alcohol. Poeschel admitted that she had consumed alcoholic beverages and that she had driven to the gas station.

Officer Arens arrested Poeschel for driving while impaired (DWI), transported her to the Prairie Island Public Safety Office, and read her Minnesota's implied-consent advisory. Poeschel contacted an attorney. While Poeschel was on the telephone with the attorney, she informed the officer that she wanted an additional test. She also asked if the officer had a warrant for chemical testing. Poeschel told the officer that, "[b]ecause I am being coerced, I will give you a test" and "I'll take the urine test because I am required to."¹ Poeschel was transported to the Goodhue County Jail, where she provided a urine sample. She did not repeat her earlier request for an additional test after providing the sample. Chemical testing of the sample revealed an alcohol concentration of 0.141, prompting respondent commissioner of public safety to revoke Poeschel's driver's license.

Poeschel petitioned for judicial review of the license revocation, arguing that the collection of her urine was a warrantless search in violation of the Fourth Amendment, that she was denied due process of law, and that her statutory right to an additional test was not vindicated. The district court sustained the license revocation, determining that (1) the warrantless collection of Poeschel's urine did not violate the Fourth Amendment because she voluntarily consented to provide the sample; (2) Poeschel "was not misled by the virtue of the language contained within the Minnesota Motor Vehicle Implied Consent Advisory in violation of her due process rights"; and (3) Poeschel was not denied her statutory right to an additional test.

Poeschel appeals.

ISSUES

I. When proceeding under Minnesota's implied-consent statute, is an officer required to offer a driver posttest use of a telephone where the driver informs the officer that she wants an additional chemical test but does not request posttest access to a telephone?

II. Do appellant's constitutional claims provide a basis for relief?

ANALYSIS

I.

Poeschel contends that the results of the state's chemical test of her urine are inadmissible because law enforcement failed to vindicate her statutory right to an additional chemical test. A law-enforcement

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officer may request that a driver submit to a chemical test of the person's blood, breath, or urine, if the officer has "probable cause to believe the person was driving, operating, or in physical control of a motor vehicle" while impaired and the driver "has been lawfully placed under arrest" for driving while impaired. Minn.Stat. § 169A.51, subd. 1(b) (2014). However,

[t]he 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. The failure or inability to obtain an additional test or tests by a person does 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.

Minn.Stat. § 169A.51, subd. 7(b) (2014) (emphasis added).

Whether an officer unlawfully prevented or denied an additional test involves both questions of law and of fact. Schulz v. Comm'r of Pub. Safety, 760 N.W.2d 331, 333 (Minn.App.2009). "The district court's findings of fact must be sustained unless clearly erroneous, but this court reviews de novo whether, as a matter of law, the driver's right to an independent test was [violated]." Id.

"In determining whether an additional test has been prevented or denied, we must draw a distinction between an officer's failing to assist and an officer's hampering an attempt to obtain such a test." Haveri v. Comm'r of Pub. Safety, 552 N.W.2d 762, 765 (Minn.App.1996), review denied (Minn. Oct. 29, 1996). An officer must allow an additional test to be administered, but "need not act affirmatively to facilitate 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 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. Safety, 382 N.W.2d 907, 912 (Minn.App.1986). Moreover, "[i]t is the duty of attorneys, not police officers, to explain the extent and scope of the right to an additional test while the driver is in custody." Duff v. Comm'r of Pub. Safety, 560 N.W.2d 735, 738 (Minn.App.1997) (quotation omitted). Advice and assistance regarding additional testing should come from an attorney. See Hotchkiss v. Comm'r of Pub. Safety, 553 N.W.2d 74, 78 (Minn.App.1996) (noting that an attorney is the appropriate source of legal advice regarding additional testing), review denied (Minn. Oct. 29, 1996).

Poeschel contends that her pretest telephone access was insufficient to vindicate her right to an additional test. She argues that "[b]ecause a driver is only entitled to an additional test after first submitting to the test requested by law enforcement, it follows that vindication of the right to an additional test requires post-test access to a telephone" and that "law enforcement had a duty to provide [her] with telephone access to arrange an independent test after she submitted to the State's test."

Poeschel does not cite, and we are not aware of, any caselaw directly supporting her contention that an officer's obligation to allow the use of a telephone for the purpose of obtaining an additional test can only be satisfied after the state's test is administered. In fact, caselaw refutes Poeschel's contention. For example, this

871 N.W.2d 44

court has stated that the pretest right to counsel provides an opportunity for an attorney to advise the driver regarding the right to additional testing and to assist the driver in obtaining additional testing. Davis v. Comm'r of Pub. Safety, 509 N.W.2d 380, 386–87 (Minn.App.1993), aff'd, 517 N.W.2d 901 (Minn.1994). Also, this court has held that a driver's limited right to pretest counsel was violated where a police officer terminated the driver's telephonic attorney consultation before the driver had an opportunity to obtain advice regarding additional testing. Duff, 560 N.W.2d at 738. In doing so, we rejected the commissioner's argument that a driver's pretest failure to receive advice regarding additional testing is inconsequential because such advice could reasonably be postponed until after the state's test. Id.

Poeschel relies on Theel v. Comm'r of Pub. Safety, 447 N.W.2d 472 (Minn.App.1989), review denied (Minn. Jan. 8, 1990). In Theel, the driver asked for additional testing and attempted to arrange a test after submitting to the state's test. 447 N.W.2d at 473. The driver made several calls to hospitals, but no one from the hospitals would go to the jail to administer a chemical test. Id. The driver told the jail staff that he was not able to get help from any hospital and asked if he could call an attorney to arrange an additional test. Id. The staff responded "[f]orget it. They're all sleeping." Id. This court determined that the driver "wanted to call an attorney to assist him in exercising his right to obtain an additional...