State of Minnesota, Respondent, vs. John Pat McCauley, Appellant.

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

 STATE OF MINNESOTA

 IN COURT OF APPEALS

 C3-97-2169

State of Minnesota,

Respondent,

vs.

John Pat McCauley,

Appellant.

 Filed September 8, 1998

 Reversed and remanded

 Schumacher, Judge

 Concurring in part, dissenting in part, Randall, Judge

Anoka County District Court

File No. K39613223

Hubert H. Humphrey III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Wilbur F. Dorn, Jr., Ham Lake City Attorney, 12301 Central Avenue Northeast, Blaine, MN 55434 (for respondent)

Steven P. Russett, Assistant State Public Defender, 875 Summit Avenue, Room 371, St. Paul, MN 55105 (for appellant)

Considered and decided by Kalitowski, Presiding Judge, Randall, Judge, and Schumacher, Judge.

 U N P U B L I S H E D O P I N I O N

 SCHUMACHER, Judge

Appellant John Pat McCauley argues that the evidence is insufficient as a matter of law to support his conviction for gross misdemeanor refusal to test in violation of Minn. Stat § 169.121, subds. 1a, 3(c)(2) (1996), because the police had already obtained a blood test from hospital personnel. We reverse and remand.

  FACTS

On October 18, 1996, at approximately 7:30 p.m., Anoka County Sheriff Deputy Tim Day was dispatched to a personal injury automobile accident in the city of Ham Lake. When Day arrived, he observed three automobiles that were involved in an accident. Two drivers told Day that they were stopped at the light when another car hit them from behind. Neither driver appeared injured, but their cars had sustained minor to moderate damage.

McCauley was the third driver. His car had sustained heavy damage and he had an injury to his nose. As he was speaking with McCauley, Day detected the odor of alcohol on McCauley's breath and observed that McCauley had red, bloodshot, watery eyes and his speech was slurred. McCauley was also combative. An ambulance arrived and took McCauley to the hospital for examination of a possible head injury. While at the hospital, a blood sample was drawn from McCauley. Testing revealed a blood alcohol content of .424. Day arrived at the hospital and arrested McCauley for driving under the influence and an outstanding misdemeanor warrant. McCauley was transported to the Anoka County Jail.

When McCauley and Day arrived at the jail at approximately 11:00 p.m., Day read McCauley the Implied Consent Advisory. McCauley stated that he wanted to speak with an attorney. When asked if he would take a breath test, McCauley responded, "Nope." Once inside the jail, McCauley was provided with several phone books and a telephone so he could call an attorney. After 20 minutes, during which time McCauley made no effort to call an attorney, Day asked McCauley if he would take a breath test. Again, McCauley refused and Day made no further attempt to administer the test.

McCauley was charged in Anoka County District Court with two counts of gross misdemeanor driving while under the influence of alcohol; two counts of gross misdemeanor driving with a blood alcohol level of .10 or more; two counts of gross misdemeanor test refusal; one count of misdemeanor driving while under the influence of alcohol; misdemeanor driving with a blood alcohol level of .10 or more; one count of misdemeanor test refusal; and one count of driving after suspension. Later, all the charges were dropped by the state, except the test refusal charges.

McCauley moved to dismiss the test refusal charges on the grounds that the nearly four-hour delay in requesting testing was excessive and precluded a charge of refusal. Following an omnibus hearing before one judge, and a post-omnibus motion hearing before another, and with no testimony having been taken at either hearing, the trial court denied McCauley's motion.

McCauley waived a jury trial and agreed to stipulate to the facts in the police report and submit the case to the trial court. The trial court found McCauley guilty of gross misdemeanor test refusal and sentenced him to one year in jail and a $3,000 fine, staying all but 60 days of the jail sentence and $1,000 of the fine on the condition he complete treatment and pay restitution.

D E C I S I O N

McCauley claims his failure to submit to a breath test did not constitute a test refusal because the police had already obtained a sample of his blood and could not legally require him to submit to additional testing. McCauley argues that the state failed to prove the offense of test refusal. Although he challenges the sufficiency of the evidence, McCauley also contends that this court should review the trial court's decision de novo, as a legal determination. The record, however, establishes that although McCauley did raise a legal issue in the trial court, it is not the issue he raises on appeal.

In the trial court, McCauley's sole challenge to the charge of test refusal was based on the delay in requesting the test. There is no indication in the record that McCauley argued the request was invalid because a test had already been taken. Instead, when the trial court ruled against him on the issue of delay, McCauley chose to expedite appellate review of that issue by stipulating to the state's case and waiving a jury trial under State v. Lothenbach, 296 N.W.2d 854, 857 (Minn. 1980).

McCauley was convicted of gross misdemeanor test refusal in violation of Minn. Stat. § 169.121, subds. 1a, 3(c)(2) (1996). Under subdivision 1a,

It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169.123.

A driver is required to submit to chemical testing when requested by a peace officer who has "probable cause to believe the person was driving, operating, or in physical control of a motor vehicle in violation of section 169.121" and the person has been lawfully arrested for violating section 169.121 or "the person has been involved in a motor vehicle accident or collision resulting in property damage, personal injury, or death." Minn. Stat. § 169.123, subd. 2(1), (2) (1996). If a blood sample is requested, it must be obtained by medical personnel acting at the request of the peace officer. Minn. Stat. § 169.123, subd. 3 (1996). In Minnesota, "a driver need not submit to a second test when the first test is reliable and adequate." Young v. Commissioner of Pub. Safety, 420 N.W.2d 585, 587 (Minn. 1988).

The police report filed by Deputy Day states that when he called the hospital, the charge nurse "stated that they had drawn blood per my request." During the omnibus hearing, however, the prosecutor informed the district court:

After the officer got here today I spoke with him and he indicated to me that that was not what happened. He requested the [hospital's] lab results from the sample they had drawn for their own purposes.

The prosecutor stated that he had researched the issue and believed the blood sample was covered by the doctor/patient privilege and was inadmissible. See e.g., State v. Staat, 291 Minn. 394, 400, 192 N.W.2d 192, 193 (1971) (holding where hospital personnel were required to give diagnosis and treatment to unconscious defendant in emergency room, confidential physician-patient relationship developed between defendant and hospital physician). Consequently, the prosecutor dropped the charges for driving with a blood alcohol content of over .10. After the omnibus hearing and a post-omnibus motion hearing, the trial court found the blood sample was drawn pursuant to Day's request, but "that for reasons not explained for the purposes of [the post-omnibus hearing], the blood sample was improperly taken and determined to be inadmissible."

From the record before us, it is unclear whether the blood sample was drawn pursuant to Day's request or whether it was drawn during the course of McCauley's treatment. The statements made by the prosecutor during the omnibus hearing indicate that the blood sample obtained from McCauley was not drawn pursuant to Day's request, but during the course of McCauley's treatment. According to the prosecutor's statements, Day simply requested that the already drawn blood sample be tested to determine McCauley's blood alcohol level.

The concurring and dissenting opinion urges that we give effect to the trial court's finding that Day requested the test and that a remand merely gives the state a second chance to present evidence it should have presented the first time. But the record plainly shows that the question of who ordered the blood sample was not material to any legal issue ever raised by McCauley in the trial court. No testimony was ever taken on the issue, and the defense never disputed the prosecutor's claim that the hospital ordered the blood sample, for the simple reason that it was not relevant to any legal issue raised by the defense. Thus, there is no finding based on relevant evidence on this issue. Although McCauley stipulated to the police reports for purposes of submitting his guilt or innocence to the trial court, the trial court's order is not in the record, and we do not know whether the court made any finding on who ordered the blood sample, a question that appears to have been irrelevant anyway in the way the case was argued in the trial court.

If the blood sample was not taken at Day's request, the state has a stronger argument that McCauley's later refusal to submit to testing was in violation of Minn. Stat. § 169.121, subds. 1a, 3(c)(2). If on the other hand, the blood sample was taken pursuant to Day's request, McCauley can reasonably argue that his refusal to submit to testing at the police station was merely a refusal to submit to additional testing and not a refusal under Minn. Stat. § 169.121, subds. 1a, 3(c)(2).

The state concedes that the record in this case, due to the involvement of four different trial court judges, "is not a model of clarity." That is an understatement. This case involves serious charges and a shockingly high alleged alcohol level that although irrelevant to the refusal charges is not irrelevant to the importance of the prosecution. On the other hand, McCauley raises a serious challenge to his criminal liability for refusing a test that, in effect, had already been taken. For the sake of both McCauley and the state, we believe it is imperative to remand this issue to be adequately litigated in the trial court.

The trial court record and the findings of the trial court are wholly inadequate to review the issue raised on appeal. We therefore reverse and remand to the district court for an evidentiary hearing and findings on this issue and for an order either dismissing the charges or denying the defense motion to dismiss.

 Reversed and remanded.

 RANDALL, Judge (concurring in part and dissenting in part).

I concur with that part of the majority opinion that states:

If on the other hand, the blood sample was taken pursuant to Day's request, McCauley's refusal to submit to testing at the police station was merely a refusal to submit to additional testing and not a refusal under Minn. State. § 169.121, subds. 1a, 3(c)(2).

That is a correct statement of existing law.

I agree that law enforcement and the state have the right to demand a blood test, either voluntarily or involuntarily, from an individual suspected of driving while intoxicated, and may use the test results in all criminal prosecutions. See Schmerber v. California, 384 U.S. 757, 761, 86 S. Ct. 1826, 1830-31 (1966) (holding Fifth Amendment does not protect suspect from being compelled to produce blood sample against his or her will in criminal prosecution); Nyflot v. Commissioner of Pub. Safety, 369 N.W.2d 512, 517 (Minn. 1985) (recognizing under Schmerber, state may force individual suspected of driving under influence to submit to blood-alcohol test, but legislature has chosen to retain implied consent law "to avoid the violent confrontations which could occur when people are forced to submit to testing"); State v. Scott, 473 N.W.2d 375, 376-77 (Minn. App. 1991) (noting state does not violate suspect's constitutional rights when, based on probable cause, individual is compelled to submit to blood test against his or her will and test result is used in criminal prosecution).

But, when the state takes its option of a forced Schmerber test, as we have here, pursuant to the district court's findings, the state has then waived its right to force a motorist to go through the implied consent procedure as a backup. See Tyler v. Commissioner of Pub. Safety, 368 N.W.2d 275, 281 (Minn. 1985) (holding test results of blood drawn from individual may be used in prosecution of criminal DWI, but not as basis for revoking individual's driver's license unless requirements of implied consent laws satisfied); Scott, 473 N.W.2d at 377 (holding when implied consent advisory not given, state may use results of blood test in DWI prosecution, but "results may not be used as the basis for license revocation pursuant to the implied consent law").

To hold otherwise would lead to unconscionable results. For example, an officer could take an individual to the hospital, with or without his consent; have the hospital draw a blood sample, with or without the individual's consent; and then hours later, ask the individual if he would consent to a Breathalyzer test. If the individual consents, the police would then have two tests from which to choose. They could have a criminal charge based on the Schmerber .10 or higher reading, or they could have a civil implied consent revocation based on scoring .10 or more.

The worst part is, if the individual refused the later implied consent test, the police could then charge the individual with criminal refusal to submit to testing, and still retain the right to bring all criminal charges that they could find based on the first Schmerber test. (Oddly enough, the individual could be charged even if the first Schmerber test showed something less than .10 or even .000.)

In DUI and related traffic offenses, the state has the options. They can Schmerber the individual or ask for a test under the implied consent laws. However, they cannot do both.

But I dissent from that portion of the majority decision which "remands" to the district court for another evidentiary hearing. To me, this case is over. There have already been voluminous pretrial hearings on the merits. There were four different district court judges participating in the various legal proceedings leading up to an omnibus hearing and then later a bench trial to a conclusion, meaning a verdict of guilty, from which defendant appellant has appealed. There has been a criminal trial to a conclusion and jeopardy has attached.

Appellant is not requesting a reversal and a remand on the grounds that there is more evidence that he would like to get in that was improperly kept from the first trial. On criminal appeals, such as that, a reversal and a remand for a new trial does not violate the constitutional prohibitions against double jeopardy because the defendant is requesting a second trial (or of course, in the alternative, an outright reversal of his conviction). But here the appellant is arguing that the district court erred as a matter of law by admitting into evidence his refusal to take a second test, arguing that since one had already been taken from him at the hospital, he did not have to give a second test and, therefore, could not be found criminally liable for refusing to take a second test. That is a pure legal point. I agree with appellant. The majority does not disagree with appellant. The majority, as stated above, agrees that if the first test was taken pursuant to the officer's request, appellant's conviction for the crime of test refusal cannot stand and must be reversed. I am not sure of any law supporting a "remand" after a criminal conviction simply for the purpose of giving the state a better chance to argue its case.

As part of a state's case in chief in a criminal matter, there is a pretrial hearing called an omnibus hearing and that determines what evidence goes into the later trial. If the prosecution loses at a pretrial hearing, there is a limited right of pretrial appeal. No such right was exercised by the state on any pretrial ruling.

In essence, what we are doing today is sending a full-blown criminal conviction back to the district court, not for a new trial, but rather for a second (probably a third) pretrial evidentiary hearing. All evidentiary hearings, by definition, are pretrial hearings because they determine the evidence that will be admissible at trial (the small exceptions to this, such as a Schwartz[1] hearing, which is posttrial, are not at issue).

The main point of contention for the state, for which the majority gives a remand for an evidentiary hearing, is its claim that the first test, the blood test at the hospital, was not drawn pursuant to the officer's request, but rather was taken by the hospital in the normal course of treating an injured person. The record shows the state had a full opportunity to argue this to the omnibus hearing judge and did so. During the omnibus hearing, the prosecutor claimed that Officer Day had now informed him that the blood sample had been "drawn for treatment purposes" and that it was this sample that he (Day) asked to be tested. The prosecutor then made the argument to the court that since now his officer was claiming he had not requested the test from the hospital, the prosecution felt it might not be admissible and, thus, they did not intend to rely on it (the state now wanted to shift directly to the criminal case against appellant for refusing to take the second test). The district court (omnibus court) specifically found otherwise. The omnibus court's findings were

that pursuant to Deputy Day's instructions, a blood sample was drawn from the Defendant with a reported result of an alcohol concentration of .424 * * * and that for reasons not explained for the purposes of this hearing, the blood sample was improperly taken and determined to be inadmissible.

(Emphasis added.) This finding is not challenged on appeal and therefore "must be considered as true on appeal." Gamble-Skogmo, Inc. v. St. Paul Mercury Indem. Co., 242 Minn. 91, 103, 64 N.W.2d 380, 388 (1954) (citing Carl v. DeToffol, 223 Minn. 24, 28, 25 N.W.2d 479, 481 (1946).

Here, accepting the district court's finding, which we must, the blood test was obtained pursuant to Officer Day's request. There is no indication or contention that the test results obtained from the blood sample are unreliable, inadequate, or otherwise invalid. See Young v. Commissioner of Pub. Safety, 420 N.W.2d 585, 587 (Minn. 1988) (holding "driver need not submit to a second test when the first test is reliable and adequate"); see also Donnelly v. Commissioner of Pub. Safety, 422 N.W.2d 528, 530 (Minn. 1988) (holding driver required to submit second test or risk revocation where driver did not complete test because first test sample was invalid). By refusing Officer Day's request, McCauley was simply refusing additional testing. This was McCauley's right. The fact that the prosecutor "thought" the blood sample was inadmissible does not save the second test for the police. The prosecutor, deciding that it might not get in because it might be construed a violation of doctor-patient privilege, made a voluntary decision not to offer it. The omnibus hearing judge never ruled it inadmissible. He simply accepted the prosecutor's position that it was being withdrawn. That accounts for the phrase "for reasons not explained for the purposes of this hearing."

The prosecutor was free to try and use the blood sample by offering it into evidence. That it hypothetically might be ruled inadmissible, which happens in these types of cases from time to time, is no argument that the state can have additional tests taken as "backups."

The prosecutor's honest candor in explaining to the omnibus court why it had some concerns about trying to move the blood test into evidence is praiseworthy. That is the essence of responsible prosecution. But responsible prosecution cannot be used to override a defendant's rights and resurrect a right to a second test when no right to a second test exists.

The later criminal trial to the court without a jury for test refusal was on stipulated facts, including the record, set forth in the complaint and the police report. The officer's report, in by stipulation, includes the following in relevant part:

I later called down to Mercy and spoke with the Charge Nurse, who stated that they had drawn blood per my request and that the results came back that McCauley had a blood alcohol content of .424.

Although the state would like it to be different, and argued for a different result, the omnibus court found

that pursuant to Deputy Day's instructions, a blood sample was drawn from the Defendant with a reported result of an alcohol concentration of .424.

The state in this case is stuck, not with its final argument to the court, but with the actual finding of the district court. The actual record, not what the defendant would like to be the record, most often works to the detriment of defendants in criminal cases. Here, the record, which we are bound to respect, states as a finding, not the state's position, but rather the defendant's. The record can speak equally for either side on appeal. Here the record speaks for defendant, the appellant.

At appellant's criminal trial, the district court judge (a different judge from the judge who signed the omnibus order--but that is not unusual, it happens often) did not overrule or refuse to accept or attempt to rewrite the above-quoted omnibus order. The state relies on that! The state's brief sets out:

The State takes issue with one aspect of the Appellant's version of the stipulated facts upon which the defendant's conviction was ultimately made. Specifically, the State argues that the trial court Judge, the Honorable Ellen Maas, was in fact aware of and bound by the Findings of Fact made by the Honorable Stanley Thorup in his Order dated May 2, 1997 (copy attached), as those findings relate to the issue of the reliability of the test administered by hospital staff.

The district court judge simply found appellant guilty of the crime of refusing a test, even though there was a finding in the district court record that he had already given a blood test pursuant to the officer's request. To me, that means that appellant's conviction for test refusal must be reversed outright. The majority does not disagree with my conclusion that this is so, but directs a remand for another pre-verdict or pre-evidentiary hearing on the issue of why or how the first blood test was taken. I simply note that this issue was argued before the trial, ruled on by the omnibus district court, a ruling of record that no later district court judge overruled, and, thus, the record for appellate review is complete. This case is not about the state's limited pretrial right of appeal from adverse rulings at an omnibus hearing. See Minn. R. Crim. P. 28.04, subd. 1 (stating prosecution may appeal from pretrial orders with the exception of certain orders for dismissal). This is a defendant's appeal from a criminal conviction for test refusal wherein the majority and I appear to agree that the district court erred as a matter of law, if the first blood test was taken from appellant at the request of law enforcement. The record states that this is so. I can think of no reason for a remand to allow the state in a criminal case a second chance to try and bolster its case.

I respectfully dissent in part and would reverse appellant's conviction outright.

[1] Pursuant to Schwartz v. Minneapolis Suburban Bus Co., 258 Minn. 325, 328, 104 N.W.2d 301, 303 (1960), a party may request a posttrial hearing to establish whether juror misconduct occurred.