In Poeschel, the Petitioner was arrested for DWI and was taken to the Prairie Island Public Safety Office, where she was read the Minnesota Implied Consent Advisory. Ms. Poeschel exercised her right to speak to an attorney prior to testing and while she was on the telephone with the attorney, she told the arresting officer that she wanted to obtain an additional test.
Ms. Poeschel subsequently provided a urine sample but she did not repeat her earlier request for an additional test. The urine test result came back at a .14, prompting the Commissioner of Public Safety to revoke her license.
Ms. Poeschel petitioned for judicial review of her license revocation arguing that her statutory right to obtain an additional test had been violated. The District Court sustained the revocation and on appeal, the Minnesota Court of Appeals affirmed the district court's decision.
The Court of Appeals noted that Minnesota Statute § 169A.51 subs. 1(b) states:
[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.
But then the Court noted, "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. An officer must allow an additional test to be administered, but "need not act affirmatively to facilitate the test." (citations omitted).
The Court of Appeals then discusses Theel v. Commissioner of Public Safety, 447 N.W.2d 472 (Minn.App.1989), stating:
"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 "[fjorget 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 test and the officer hindered his attempt." Id. at 474. This court therefore held that the driver's statutory right to additional testing was prevented or denied. Id.
Unlike the circumstances in Theel, the record does not reveal any attempt by Poeschel to arrange an additional test. More importantly, Poeschel did not ask to use a telephone to arrange an additional test after she submitted to the state's test. If the officer in this case had refused such a request, we would likely conclude that the officer prevented or denied an additional test. See id. But those are not the circumstances here.
Moral Of The Story: If you want to arrange for an additional test, ask to use the phone for that purpose AFTER submitting to testing.
If you or a loved one has been arrested for a Minnesota DWI, feel free to contact Minneapolis DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.