State v. Messner

• Court: North Dakota Supreme Court
• Writing for the Court: MESCHKE; ERICKSTAD; H.F. GIERKE III
• Citation: State v. Messner, 481 N.W.2d 236 (N.D. 1992)
• Decision Date: 20 February 1992
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Plaintiff and Appellee, v. Brian Keith MESSNER, Defendant and Appellant. o. 910234.

Page 236

481 N.W.2d 236

STATE of North Dakota, Plaintiff and Appellee, v. Brian Keith MESSNER, Defendant and Appellant.

Cr. No. 910234.

Supreme Court of North Dakota.

Feb. 20, 1992.

A. Fred Arnason (argued), Asst. State's Atty., Grand Forks, for plaintiff and appellee.

Patrick O. Sogard (argued), Grand Forks, for defendant and appellant.

MESCHKE, Justice.

Brian Messner appeals from a conviction for driving under the influence of alcohol. He asserts that the trial court should have suppressed the results of an intoxilyzer test because he was denied the opportunity for an independent blood test. We disagree, and therefore affirm the conviction.

On February 1, 1991, Officer Jerry Olson of the Highway Patrol was informed that a person driving northbound on Interstate 29 was "all over the road." Olson located the car and observed it "swerving back and forth in the driving lane, across the center line a couple times." Olson stopped the car driven by Messner.

After Messner failed several field sobriety tests, Olson arrested him for driving under the influence and transported him to the Grand Forks County Correctional Center. Messner consented to an intoxilyzer test. During the testing, Messner asked to make a telephone call. Olson would not allow Messner to telephone anyone until completion of the intoxilyzer test. Messner also requested that he be allowed to take a blood test "afterward." Apparently, Olson did not respond to Messner's request for a blood test, except to say "that we wanted him to take our test right now." Although Olson admitted that Messner had requested a blood test, Olson testified that "[i]t was never brought up again. In fact, I forgot about it."

Messner completed the intoxilyzer test on his third attempt, registering a .18 percent blood alcohol content. Messner was then placed in a jail cell and was given access to a telephone. The record does not disclose whether Messner used the telephone. In any event, he did not receive a blood test.

Messner moved to suppress the intoxilyzer test results, asserting that he was denied his statutory right to obtain an independent blood test. At the suppression hearing, the transcript of Messner's previous administrative suspension hearing was made the hearing record in lieu of oral testimony. ¹ The trial court denied the suppression motion, reasoning:

In this case it is clear that Officer Olson did nothing to prevent or hinder Mr. Messner's request for an independent examination....

There is evidence, however, that Mr. Messner did request to make a phone call. It is quite possible that this phone call would have been for the purpose of making arrangements for an independent test. The transcript establishes that Officer Olson would not allow Mr. Messner to make a phone call until after the intoxilyzer test was completed. It can be assumed from Mr. Messner's argument that the purpose of the phone call was to talk to an attorney about an independent blood test....

Mr. Messner also argues that he was denied the opportunity for an independent test because he was not allowed to make the phone call until after he was placed in a jail cell. Mr. Messner was allowed to make a phone call. The record does not reflect that Mr. Messner ever made the phone call or what the purpose of the call was for. It can be assumed that Mr. Messner should have used this opportunity to make arrangements for an independent blood test. The outcome in this case would have been different if there was evidence to show that the law enforcement officers intentionally hindered or delayed Mr. Messner's opportunity for a phone call after the completion of the intoxilyzer test, thereby resulting in an intentional delay in time. In that instance Mr. Messner would not have been allowed to complete an independent test within the time requirement.

This Court finds that Officer Jerry Olson did not prevent or hinder Mr. Messner's request for an independent examination. Officer Olson had no duty to assist Mr. Messner in obtaining the independent test. The record does not establish that Mr. Messner made any reasonable attempts on his own to obtain an independent examination. A mere request to the arresting officer for an independent test does not establish a reasonable attempt on the defendant's part to secure an independent test. For this reason, the defendant's Motion to Suppress the intoxilyzer test results is denied.

From the agreed record, the trial court found Messner guilty of driving under the influence. Messner appealed.

A motorist arrested for driving under the influence has a right to a chemical test in addition to the test taken at the direction of a law enforcement officer.

The person tested may have a physician, or a qualified technician, chemist, registered nurse, or other qualified person of his own choosing administer a chemical test or tests in addition to any administered at the direction of a law enforcement officer with all costs of an additional test or tests to be the sole responsibility of the person charged. The failure or inability to obtain an additional test by a person does not preclude the admission of the test or tests taken at the direction of a law enforcement officer.

NDCC 39-20-02. We have interpreted this statute on several occasions.

We have held that police have no duty to inform a person of the right to an additional test. State v. Rambousek, 358 N.W.2d 223, 230 (N.D.1984). We have also held that a suspect's request for an independent test must be clear and unambiguous. See State v. Lorenzen, 401 N.W.2d 508, 509 (N.D.1987); State v. Solberg, 381 N.W.2d 197, 198 (N.D.1986). Further, we have said that police may not prevent a suspect from having his own test conducted and that the "right to an additional test is limited necessarily by the availability of testing facilities and other circumstances that may bear on whether an additional testing opportunity is reasonably available." Boehler v. Backes, 461 N.W.2d 103, 104 (N.D.1990). Yet this court has not directly addressed the question of what police must do when an independent test is requested by a person in custody.

The North Dakota Court of Appeals has faced the question, however. In State v. Dressler, 433 N.W.2d 549 (N.D.Ct.App.1988), the North Dakota Court of Appeals affirmed the suppression of blood and breath test results administered at a police officer's direction, concluding that the accused was deprived of a reasonable opportunity to exercise his statutory right to an additional test by a person of his choosing. In Dressler the accused was arrested late at night in a rural area seven miles north of Richardton. The arresting officer refused the accused's request that a blood test be taken at the hospital in Richardton, falsely informing him that the hospital in Richardton had declined to draw blood samples in the past. The officer transported the accused past the hospital in Richardton and an additional 23 miles to Dickinson where blood and breath tests were administered. In affirming the suppression order, the Dressler court declined to set up inflexible guidelines for law enforcement officers to follow when a request for an independent test has been made, and focused, instead, on a standard of reasonableness.

Section 39-20-02, N.D.C.C., need not be rigidly applied, without regard to varying circumstances.... We believe that under Sec. 39-20-02, N.D.C.C., a person arrested for driving under the influence of alcohol must be afforded a reasonable opportunity to secure an additional test by a person of his own choosing if he requests one.... "[T]he meaning of a 'reasonable opportunity' to obtain an examination may vary depending on the circumstances." Commonwealth v. Alano, 388 Mass. 871, 448 N.E.2d 1122, 1128 (1983).

Law enforcement officers need not assist people in obtaining independent tests (Commonwealth v. Alano, supra,) or even advise them of the right to an additional test [State v. Rambousek, 358 N.W.2d 223 (N.D.1984) ]. Law enforcement officers, however, "must not prevent or hinder an individual's timely, reasonable attempts to obtain an independent examination." Commonwealth v. Alano, supra, 448 N.E.2d at 1128. See also City of Blaine v. Suess, 93 Wash.2d 722, 612 P.2d 789 (1980). Law enforcement officers must afford a reasonable opportunity and a motorist's request for an additional test by a person of his own choosing must be a reasonable one. 4 R. Erwin, Defense of Drunk Driving Cases Sec. 30.06, p. 30-28 (3rd ed. 1988). "What may be reasonable in one locality may be unreasonable in another." Id.

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Under the circumstances presented, in view of the ease with which [the officer] could have complied with [the accused's] request, [the officer's] false and misleading statement that the Richardton hospital refused to draw blood samples for alcohol testing, and the fact that [the officer] would have had...