State of Minnesota, Appellant, vs. Beatrice Menya, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-251

 

State of Minnesota,
Appellant,
 
vs.
 
Beatrice Menya,
Respondent.

 

Filed September 14, 2004

Reversed; motion granted

Stoneburner, Judge

 

Dakota County District Court

File No. K7032145

 

Mike Hatch, Attorney General, Suite 1400, NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Stephen A. Baker, Grannis & Hauge, P.A., Suite 200, 1260 Yankee Doodle Road, Eagan, MN 55121 (for appellant)

 

D. Gregory Mulligan, Suite 200, 3209 West 76th Street, Edina, MN 55435 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge; Stoneburner, Judge; and Wright, Judge.

 

U N P U B L I S H E D  O P I N I O N

 

STONEBURNER, Judge

 

            The state appeals suppression of a blood test, arguing that the district court clearly erred by concluding that the state failed to honor a request by respondent Beatrice Menya for a second test.  We agree and reverse.

FACTS

 

The district court reviewed a digital recording of the implied-consent advisory given to respondent after her arrest for suspected driving while impaired.  The recording contained the following exchange:

Officer Helgerson:  You do have the right to request a second test.  All right.  But you would have to make your own arrangements for that, so you'd have to call somebody to have them come up to the jail to do that.  All right.  Do you understand all that?

 

Menya:  Within the next what, week?

 

Officer Helgerson:  Within the next however long you choose to do it.  So [just] so you're aware, I've given you the opportunity to do that and you're aware of it.  Once you get to jail you can contact jail and have them make those arrangements if you wish to do so.  Okay?  Do you understand that?  Can you say yes or no for me?

 

Menya:  Yes.

 

Officer Helgerson:  Okay.  Thank you.

 

            Based on this exchange, the district court found that respondent "inquired about obtaining an alternate test" and the arresting officer failed to provide a telephone in response to the request.  Based on those findings, the district court granted respondent's motion to suppress the results of respondent's blood test that revealed an alcohol concentration of 0.11.  This appeal followed.[1]

 

D E C I S I O N

 

The state in a pretrial appeal has the burden of showing that the district court erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the prosecution.  State v. Ault, 478 N.W.2d 797, 799 (Minn. App. 1991).  If lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution, critical impact is established.  Id.  Suppression of a chemical test showing an alcohol concentration in excess of the statutory limit in a prosecution for DWI has a "critical impact" on the prosecution.  Id.

            On appeal, generally, the district court's findings on whether police prevented a driver from obtaining an independent test must be sustained unless clearly erroneous.  Frost v. Comm'r of Pub. Safety, 348 N.W.2d 803, 804 (Minn. App. 1984).

            Minnesota law provides that after submitting to a chemical test, a person may have an additional test administered at the person's own expense.

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.  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. 

 

Minn. Stat. § 169 A. 51, subd. 7(b) (2002).  The state argues that respondent never requested an additional test, therefore additional testing was not prevented or denied by the peace officer.  We agree.  The exchange between Officer Helgerson and respondent does not support the district court's finding that respondent inquired about obtaining an alternative test or that Officer Helgerson failed to provide a telephone in response to a request for an independent test.  Because there is no support in the record for the district court's findings, the findings are clearly erroneous and the suppression order must be reversed.

            Respondent has moved for attorney fees incurred in defense of this appeal in the amount of $990.  See Minn. R. Crim. P. 28.04, subd. 2(6) (defendant forced to respond to a pretrial prosecution appeal is entitled to reasonable attorney fees and expenses).  Because respondent is clearly entitled to attorney fees and the request is reasonable, the motion is granted. 

            Reversed; motion granted.

[1] Because the record in district court was entirely digital, this court ordered appellant to supplement the record on appeal with a compact disk recording and a transcript of the recording.