State of Minnesota, Respondent, vs. Michael Duane Sheehy, Appellant.

State of Minnesota, Respondent, vs. Michael Duane Sheehy, Appellant. A06-419, Court of Appeals Unpublished, August 22, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-419

 

State of Minnesota,

Respondent,

 

vs.

 

Michael Duane Sheehy,

Appellant.

 

Filed August 22, 2006

Affirmed Worke, Judge

 

Otter Tail County District Court

File No. K0-03-1411

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and

 

David J. Hauser, Otter Tail County Attorney, Nicole S.C. Hansen, Assistant County Attorney, 121 West Junius Avenue, Suite 320, Fergus Falls, MN 56537 (for respondent)

 

Brent S. Schafer, 3800 American Boulevard West, Suite 1590, Bloomington, MN 55431 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge; Stoneburner, Judge; and Worke, Judge.

U N P U B L I S H E D   O P I N I O N

WORKE, Judge

            On appeal from a conviction of DWI, appellant argues that a police officer prevented or denied appellant's right to an independent chemical test when the officer gave appellant a BCA urine collection kit, but removed the instructions and the evidence seal, without which no facility would test the sample.  We affirm.

D E C I S I O N

            The implied-consent statute provides that after a person submits to a chemical test, he has the right to have an additional test at his own expense.  Minn. Stat. § 169 A. 51, subd. 7(b) (2002).  "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."  Id.  The issue of whether a driver's right to an independent test was prevented or denied presents a mixed question of law and fact.   Haveri v. Comm'r of Pub. Safety, 552 N.W.2d 762, 765 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).  The district court's findings of fact must be sustained unless clearly erroneous, but this court reviews de novo whether, as a matter of law, the driver's right to an independent test was prevented or denied.  Id.

            Appellant Michael Duane Sheehy argues that the district court erred in certain findings of fact, but concedes that the facts are undisputed.  Thus, we will address only whether, based on the undisputed facts, appellant's right to an independent test was prevented or denied.  This court has distinguished between cases when a peace officer failed to assist and those when the officer hampered an attempt to obtain an additional test.  Id.; see also State v. Shifflet, 556 N.W.2d 224, 225 (Minn. App. 1996) (holding that a defendant was denied the right to an independent test when the person who arrived at the jail to obtain the defendant's urine sample was denied access to the defendant); Theel v. Comm'r of Pub. Safety, 447 N.W.2d 472, 473-74 (Minn. App. 1989) (holding that an officer denied a defendant the right to an independent test when the defendant called four hospitals that refused to send personnel to administer a test and when the defendant wanted to call an attorney to assist him, the officer said, "Forget it.  They're all sleeping"), review denied (Minn. Jan. 8, 1990); cf. Cosky v. Comm'r of Pub. Safety, 602 N.W.2d 892, 894 (Minn. App. 1999) (holding that a defendant's right to additional testing was vindicated when he was provided access to a telephone for outgoing calls, even though he was not permitted to receive incoming calls), review denied (Minn. Jan. 18, 2000).   An officer need not assist a driver by furnishing supplies or transportation to facilitate an additional test.  State v. Hatlestad, 347 N.W.2d 843, 845 (Minn. App. 1984).  An officer only has an affirmative obligation to provide the use of a telephone.  Frost v. Comm'r of Pub. Safety, 348 N.W.2d 803, 804 (Minn. App. 1984). 

            Appellant requested an independent test after consulting with an attorney.  An officer told appellant that appellant was responsible for the independent test and that he would release appellant to get a test.  The officer gave appellant a container from a BCA urine collection kit, but took out all of the instructions, legal paperwork, and the seal that are used by the officers in conducting a test.  The officer told appellant to take the sample to the hospital, but appellant left without the sample and it was found the next morning in the booking area.  Appellant's counsel picked up the sample to have it tested, but the lab refused to test the sample because the container was not sealed or labeled.  Appellant contends that the officer hampered his right to an independent test by providing him with an incomplete urine collection kit.  Appellant concedes that the officer did not have a duty to furnish anything, but suggests that the officer undertook an obligation to provide a complete kit after offering assistance.  Appellant's argument fails.  First, appellant does not provide any authority that an officer assumes a duty to facilitate an independent test by providing a container to collect a urine sample.  The only obligation the officer had was to provide appellant the use of a phone, which the officer did.  See id. ("[t]he only obligation an officer has in assisting the defendant in obtaining an additional test is to allow [the] defendant use of a phone").  Second, the officer repeatedly told appellant that appellant was responsible for obtaining a second test after he was released.   

            Appellant also suggests that the officer prevented appellant from obtaining an independent test because appellant arranged a test at a hospital, but did not pursue that test because of the officer's assistance.  But the record shows that the officer told appellant that he was giving appellant a collection kit and then appellant was to bring it to the hospital.  The district court did not err in denying appellant's motion to suppress the test results because the officer did not prevent or hamper appellant's right to an independent test.

            Affirmed.