Kristine Marie Kohman petitioner, Appellant, vs. Commissioner of Public Safety, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA IN COURT OF APPEALS C4-00-1303

 

 

Kristine Marie Kohman

petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

 

Filed January 30, 2001 Affirmed Anderson, Judge

 

Hennepin County District Court

File No. 478412

 

Robert Christensen, Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN  55415 (for appellant)

 

Mike Hatch, Attorney General, Matthew Frank, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103 (for respondent)

 

            Considered and decided by Anderson, Presiding Judge, Klaphake, Judge, and Harten, Judge.

 

 

U N P U B L I S H E D   O P I N I O N

ANDERSON, Judge

            Appellant argues that the state-administered blood-alcohol test should not be admitted into evidence because a police officer (1) unlawfully seized her without a reasonable articulable suspicion of criminal activity when placing her into the squad car, and (2) prevented her from taking an additional test by stating that the second test would "take a long time" and was "not necessary."  Because appellant was not subjected to an unconstitutional seizure and her right to an additional test was not hampered, we affirm.

FACTS

            A state trooper arrested appellant Kristine Marie Kohman for driving while under the influence of alcohol (DWI) on December 23, 1999.  At about 2:00 a.m., Minnesota State Trooper Kevin Adrian noticed a vehicle in the ditch off a freeway exit ramp in the city of Bloomington.  Adrian found appellant in the driver's seat and requested her driver's license.  After identifying appellant, Adrian asked if she was hurt.  Appellant said no.  Adrian then asked appellant if she needed a tow truck, and appellant agreed that she did.  Adrian testified that he did not observe any signs of intoxication at that time.

            Because it was cold outside, Adrian asked appellant to accompany him to the squad car.  Appellant followed Adrian and was placed in the back of the car, which contained a Plexiglas partition separating the front and back seats of the vehicle, for approximately 15 minutes.  Adrian did not administer a Miranda warning.  Once inside the squad car, Adrian called a tow truck and continued to discuss the accident with appellant.  During the conversation, Adrian smelled a strong alcohol odor, noticed that appellant's eyes were bloodshot and watery, and testified that her speech was slurred.  When asked if she had been drinking, appellant answered yes but stated that the accident occurred because her vehicle slid on a patch of ice.  Adrian asked appellant to perform field sobriety tests, which she failed.  Adrian then arrested appellant for DWI.

            Adrian read the Implied Consent Advisory to appellant and transported her to a hospital for a blood-alcohol test.  Once at the hospital, Adrian made a telephone available to appellant so she could contact an attorney.  After consulting an attorney, appellant submitted to the blood-alcohol test and indicated that she also wanted an independent test taken.  Adrian made a telephone available for appellant to arrange an additional test.  Appellant testified that she asked Adrian how to go about setting up the second test, but he stated that it was not his duty to give herthat information.  Appellant also testified that Adrian told her a second test was "not necessary," and when asked how long the additional test would take, Adrian said it would "take a long time."  A nurse participating in the conversation agreed that the test would take a long time.  Appellant never obtained the second test.  

            The Commissioner of Public Safety revoked appellant's driver's license.  Appellant petitioned for judicial review, arguing that the state-administered blood-alcohol test should not be admitted into evidence because Adrian unlawfully seized her without a reasonable articulable suspicion of criminal activity when placing her into the squad car, and prevented her from taking an additional test.  The district court rejected both of appellant's claims, admitted into evidence the state-administered blood test, and sustained the Commissioner's revocation of appellant's license.  This appeal followed.

D E C I S I O N

I.

Appellant argues that her constitutional right to be free from an unreasonable search and seizure was violated when Adrian placed her in the squad car without an articulable suspicion of criminal activity.  Appellant claims that as a result of this unlawful seizure, the state's blood-alcohol test should not have been admitted into evidence. 

When the facts are not disputed, we determine, as a matter of law, if the officer's actions amounted to a seizure and if the officer had an adequate basis for the seizure.  Kranz v. Commissioner of Pub. Safety, 539 N.W.2d 420, 422 (Minn. App. 1995).  The test of whether a seizure has occurred is whether, in light of all the circumstances, a reasonable person would have felt free to leave.  United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980); State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995).  It is an objective test so as to ensure that the constitutional protection at issue does not vary with any given person's subjective state of mind.  Cripps, 533 N.W.2d at 391.

            After a review of the circumstances, we conclude that a reasonable person in appellant's position would have felt free to leave.  Adrian did not execute a traffic stop but instead approached appellant after seeing her vehicle stuck in a ditch.  See Vivier v. Commissioner of Pub. Safety, 406 N.W.2d 587, 589 (Minn. App. 1987) (recognizing that it is generally not a seizure for an officer to talk to a driver in an already-stopped vehicle).  The interaction between Adrian and appellant was nothing more than a police officer assisting a citizen in distress.  Appellant was not frisked or placed in handcuffs.  Appellant went to the squad car by invitation, not coercion.

Appellant argues that she did not feel free to leave because the trooper had her driver's license.  But appellant also testified that she did not feel free to leave because her car was stuck.  There is no evidence in the record that even hints at possible interference by the officer with appellant's right to depart at any time.  Moreover, in response to this argument, the district court stated, "I have to say that [appellant's testimony that she did not feel free to leave] was not convincing and that she was there voluntarily * * * ."  We conclude that appellant was not subjected to an unconstitutional seizure.  Accordingly, we need not address the argument that Adrian did not have an articulable suspicion of criminal activity when placing appellant in his squad car.

II.

 

Appellant next argues that the district court clearly erred by finding that Adrian did not hamper her attempt to secure an additional test.  A district court's findings of fact must be sustained unless they are clearly erroneous.  Frost v. Commissioner of Pub. Safety, 348 N.W.2d 803, 804 (Minn. App. 1984).

            Minn. Stat. § 169.123, subd. 3 (1998), provides:

Manner of making test; additional tests (a) Only a physician, medical technician, physician's trained mobile intensive care paramedic, registered nurse, medical technologist or laboratory assistant acting at the request of a peace officer may withdraw blood for the purpose of determining the presence of alcohol, controlled substances, or hazardous substances.  This limitation does not apply to the taking of a breath or urine sample.  The 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.

     (b) The failure or inability to obtain an additional test or tests by a person shall 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.          

 

            The statutory right to obtain an additional test is a limited right. Theel v. Commissioner of Pub. Safety, 447 N.W.2d 472, 474 (Minn. App. 1989), review denied (Minn. Jan. 8, 1990).  In determining whether police have prevented or denied an additional test, reviewing courts have distinguished between an officer's failure to assist a motorist in obtaining the test and hampering a motorist's attempt to obtain the test.  Id.  "The only obligation an officer has in assisting the defendant in obtaining an additional test is to allow the defendant use of a phone."  Frost, 348 N.W.2d at 804 (citation omitted); see also State v. Hatlestad, 347 N.W.2d 843, 845 (Minn. App. 1984) (holding officer has no duty to furnish supplies or transportation for an additional test).  But if an officer hampers a motorist's attempt to secure an additional test, results of the state-administered test are inadmissible.  State v. Shifflet, 556 N.W.2d 224, 225, 228 (Minn. App. 1996)

Appellant argues that Adrian's specific comments hampered her ability to obtain an additional test.  While we agree that Adrian's comments were inappropriate, we conclude that the statements were not actively misleading or designed to prevent appellant from obtaining an additional test.  See Hotchkiss v. Commissioner of Pub. Safety, 553 N.W.2d 74, 78 (Minn. App. 1996) (holding officer's comment that additional test could be done at hospital while taking driver to jail did not mislead driver that test could only be done at hospital) review denied (Minn. Oct. 29, 1996); Schmidt v. Commissioner of Pub. Safety, 486 N.W.2d 473, 476 (Minn. App. 1992) (concluding that officer's statement that the additional test had to be administered at the jail did not hamper the driver from obtaining an additional test).

Adrian's statement that an additional test would "take a long time" did not actively mislead or prevent appellant from taking a second test.  We agree with the district court's assessment:

She asked the question -- in response to a question she asked [and] he told her it would take two or three hours. * * *  [I]f that answer was discouraging to her, it was still an answer that was in response to a question she asked.

 

Adrian's comment that the additional test was "not necessary," while clearly disturbing and inappropriate, did not actively mislead or prevent appellant from taking a second test.  Adrian made a phone available to appellant two separate times so that she could consult an attorney.  Appellant talked to an attorney and was aware that she was entitled to take a second independent test.  Appellant did not follow through.  At trial, appellant stated:

I felt as though I was making the officer upset by even suggesting [a second test] because he, you know, wanted to get back and do his job, and I felt like it's going to be a couple three hours, and * * * and it wasn't necessary because they already had the blood test.

 

Appellant failed to obtain a second test, not because Adrian prevented her from doing so, but because of her own discouragement about the process. 

Appellant cites Theel, 447 N.W.2d at 474 as authority for the claim that her attempt to obtain a second test was hindered.  In Theel, the court concluded that the officer hampered an attempt to obtain an additional test by refusing to let the driver call an attorney after the driver unsuccessfully tried to set up the additional test on his own.  Id.  Theel is distinguishable because in Theel the officer refused to let the driver call an attorney, while here, Adrian never refused appellant's request to call her attorney but accommodated the request by making a telephone available.  Appellant called her attorney after arriving at the hospital and based on his advice, asked for an additional test.  When appellant did not know how to proceed with this additional test, she was given an opportunity to call her attorney again.  Appellant did not make the call.

            We conclude that the district court did not clearly err by finding that Adrian did not actively mislead or prevent appellant from taking a second test.  Accordingly, we hold that the district court properly admitted the results of the implied-consent blood test.  

            Affirmed.