State, Department of Public Safety v. Wangensteen

221 N.W.2d 567 (1974)

STATE of Minnesota, DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Theodore Paul WANGENSTEEN, Respondent.

No. 44615.

Supreme Court of Minnesota.

August 2, 1974.

Rehearing Denied September 20, 1974.

*568 Warren Spannaus, Atty. Gen., Thomas G. Lockhart, Sp. Asst. Atty. Gen., St. Paul, for appellant.

Theodore Wangensteen, Jr., Wayzata, Robins, Meshbesher, Singer & Spence, Minneapolis, and John J. Scanlan, St. Paul, for respondent.

Considered and decided by the court without oral argument.

PER CURIAM.

This is an appeal from an order of the Hennepin County Municipal Court which rescinded an order of the commissioner of public safety revoking defendant's driver's license for refusal to permit chemical testing under Minn.St. 169.123. The municipal court held that the failure of the police who arrested defendant for driving while under the influence to offer him both the alternative breath and urine tests mentioned in § 169.123 where both were available barred revocation of defendant's license for refusal to permit chemical testing. Subsequent to the municipal court's decision and while the appeal in the instant case was pending, we held in State v. Boland, Minn., 217 N.W.2d 491, 492 (1974): "While we believe that police should be encouraged to offer a driver both alternatives if both are available, we do not believe that under the statute the failure of the police to do so bars revocation." That case disposes of this appeal. Any change in the clear language of the statute is properly the function of the legislature.

Reversed.