Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is Wilits v. Commissioner of Public Safety (Decided March 6, 2017, Published, Minnesota Court of Appeals) which stands for the proposition that the police do not "prevent or deny" a person's statutory right to obtain an additional test when they provide the driver with a county-issued medical-grade specimen container to collect the driver's urine sample.  

I can't say that I disagree with the court on this one.

In Wilits, the appellant was arrested in Hennepin County for DWI and was taken to the jail for breath testing.  After submitting to a data master test (which revealed an alcohol concentration of .11) he requested to arrange for an independent test.  Mr. Wilits called his ex-wife who arrived shortly thereafter carrying a Tupperware container to obtain a urine sample.  

Mr. Willits testified that he intended to use the Tupperware container to collect his urine sample until Deputy Caldwell gave him the county-issued urine-specimen cup and said, "You can use this one instead, sir." Willits provided a urine sample in the county-issued specimen cup and gave the specimen cup containing his urine sample and the Tupperware container to his ex-wife.

The Minnesota Commissioner of Public Safety revoked Willits's driving privileges and Willits petitioned for judicial review of the Commissioner's revocation, arguing in part that law enforcement denied him his right to an additional chemical test. The District Court sustained the revocation and, in a published decision, the Minnesota Court of Appeals agreed.

First the Appellate Court points out that:

"In answering the question of whether an officer prevented or denied an additional test, this court "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) (emphasis omitted), review denied (Minn. Oct. 29, 1996)."Caselaw makes clear that officers must allow a sample to be collected and an additional test to be administered, but they need not act affirmatively to facilitate the test." Id. "The only obligation an officer has in assisting the [driver] in obtaining an additional test is to allow [the driver] use of a phone (citation omitted)"

"Relying on an unpublished opinion from this court, Willits argues that his statutory right to additional testing was violated because Deputy Caldwell denied him the right to use a container of his choosing to collect his urine sample. Willits argues that Deputy Caldwell interfered with this right when he went beyond his limited duty to provide Willits with a phone by giving him a government-issued specimen cup. This unpublished case is not binding on this court and is not relevant. In that case, we held that the defendant was denied his statutory right to an additional chemical test because jail policy prevented his wife from bringing a plastic receptacle into the jail to collect the defendant's urine for independent testing. But Minn. Stat. § 169A.51, subd. 7(b), does not give a person the right to use a container of the person's choosing to collect a urine sample. And unlike the unpublished case, law enforcement assisted Willits in vindicating his right to an additional test. Jail staff provided Willits with a phone to make arrangements for the test, and no one prevented M.G. from meeting Willits at the jail and giving him the Tupperware container. And no one prevented Willits from giving M.G. the specimen cup containing his urine...If anything, the deputy's actions benefitted Willits by providing him with a medical-grade specimen cup specifically designed to collect urine."

"Because Minn. Stat. § 169A.51, subd. 7(b), does not give a suspected drunk driver the right to use a container of his or her choosing to collect a urine sample, and because law enforcement did not prevent or delay the administration of additional chemical testing in this case, the district court properly sustained the revocation of Willits's driver's license."

Moral of the Story: If you get arrested for a DWI call an attorney before testing as he can advise you of your right to obtain an independent test.

If you or a loved one have 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.

Minnesota DWI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is Poeschel v. Commissioner of Public Safety (Decided October 26, 2015, Minnesota Court of Appeals, Published) which stands for the proposition that absent a request, the police do not need to provide an individual under arrest for DWI with the use of a telephone to arrange for additional testing.

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.

Essentially, Poeschel asks this court to create an affirmative duty requiring an officer to offer a driver posttest use of a telephone to arrange an additional test even though the driver has not asked to use the phone. We decline to do so. Caselaw consistently describes an officer's obligation as allowing the use of a telephone, as opposed to offering the use of a telephone."    

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.