AGREGADOS, MATERIAL DE RELLENO Y PRUEBAS

The “person tested” has the right to seek an “additional test” after the police- administered test. Officers do not need to tell drivers about that right, provide test kits or transportation to a testing facility, or release them so that they can go to a testing facility. Generally, officers need do no more than provide access to a telephone and let the person call anyone he or she wishes to make arrangements for an additional test.

In recent years, this has become a particularly fertile area for litigation as defense attorneys attempt to set up a defense under Minn. Stat. § 169A.51, subd. 7(b), which provides:

(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.

If the defense attorney can persuade the Court that the officer “prevented or denied” additional testing, the results of the police-administered test are suppressed in the DWI prosecution and cannot be used to sustain an implied consent revocation.

In the beginning, drivers were coached to immediately state that they wanted an additional test, hoping that officers would ignore the request. If the officer did not ignore it, drivers were told to call a friend to being a clean Skippy jar with a lid or a Tupperware container to the jail for a urine test, hoping that the friend would be turned away, and the test “prevented or denied.” In several counties, the jails developed policies to deal with these requests. So far, the courts appear to agree that security concerns justify not allowing some stranger who is merely a friend of the driver to enter the secured area to administer the urine test, and to refuse to allow glass containers to be brought in. The jail staff will instead offer the driver a plastic container and deliver it to the friend. However, if the person brings a plastic container, so that it does not pose a hazard to jail personnel, the Court of Appeals has held that it was a violation of the right to additional testing for jail personnel to refuse to allow use of the person’s own plastic container and insist on the use of a jail-furnished plastic container. See Mark v. Commissioner of Public Safety, No. A04-1905 (Minn. Ct. App. May 10, 2005)

the driver’s wife to come into the secured areas, but could see no justification for refusing to permit the driver to use his own plastic container.

If the person wants a test that may be of some use, the attorney will have them call a professional testing service, and known professionals are admitted into the secured areas to draw blood samples or administer urine tests.

Once officers learned to deal with additional test requests, drivers were advised to delay their requests in hopes of increasing the chance that the officer could be said to have “prevented or denied” additional testing. In Minneapolis, for example, a driver would delay mentioning the subject until after leaving Chem Test for the jail, or even delay it until after being delivered to the jailers. The hope was that even if the arresting officer did everything right, the test might still be excluded because some jailer

“prevented or denied” the test.

In an effort to prevent successful claims, the “Authority to Detain” forms of several jails have been changed to specifically record whether or not the person requested an additional test; has been allowed use or a phone and has either made arrangements or given up. The jailers have instructions to document every request for additional testing and see that access to a telephone is made available.

There are a number of steps a prudent officer can take to minimize the risk of losing a test due to an “additional test issue.”

1. Document the fact that the person did or did not request an additional test.

2. If the person says anything that sounds like an expression of interest in another test, tell them that they can try to arrange for one if they like, and will be allowed access to a telephone to make the arrangements. Make sure that they get access to a telephone to do so as soon as reasonably feasible.

3. Do not utter a discouraging word. The appellate courts have held that

additional testing was “prevented or denied” when a driver wondered out loud whether he should call an attorney after his sister refused to come to the jail and four hospitals refused to send anyone to the jail, and an unidentified jailer said “You might as well forget it; they’re probably all asleep.” In another case, an officer “prevented or denied” additional testing by telling the driver that the test had to be done within two hours, and only a few minutes were left. (There is no “two hour limit” on administering either a police test or driver’s additional test—and has not been since 1967.)

4. If the person does not need to be held for court, but can be released to a sober and responsible party, the person is free to go anywhere to arrange for the

additional test, and the officer cannot be said to have prevented or denied the additional test—so long as the officer provided access to a phone reasonably promptly. One judge has ruled that an officer prevented or denied additional testing when he failed to

give the driver the telephone because he was about to be released within fifteen minutes to waiting friends.

5. If the person has to be held for some period of time, it is essential that the officer make a telephone available as soon as possible. Allow the person to call anyone he or she wishes, and to keep calling. While there is an unpublished opinion indicating that only a “reasonable time” need be allowed for these calls, the prudent officer will let the person call until he or she either succeeds or gives up. If the person is only playing a game, he or she is likely to tire of it very quickly.

6. Do not suggest or recommend that they call a particular person or testing

service. If they ask for advice as to whom to call, refer them to their attorney and friends for advice. Otherwise, the officer will be accused of selecting the tester, “violating” the driver’s right to have the test administered by a person of his choosing.

7. If the person delays the mention of an additional test until after leaving the testing facility and heading for the jail, prudent officers have turned around, returned to the testing facility and provided access to the telephone. This avoids any risk that the driver will be successful in claiming that neither the arresting officer nor the jailers honored his desperate pleas for an additional test.

8. If the person delays the mention of an additional test until reaching the jail, the arresting officer must make absolutely certain that the jailers are both aware of the right to an additional test and that the driver has expressed a desire for one. Jailers should then make a telephone immediately available for that purpose even before

completing the booking process. A prudent officer will also identify and document which jailer the driver was turned over to, and told of the additional test request, so that jailer can be called as a witness.

9. While officers have no duty to transport suspects to a testing facility, doing so can make the officer look good and preclude any successful additional test claim. Thus, Coon Rapids officers sometimes have offered to stop by Mercy Hospital for an additional blood test, if the driver wishes, on the way to the Anoka County Jail. Drivers sometimes argue that the officer, not the driver, selected the testing facility. However, where the record shows that the officer did nothing more than offer that possibility, did not limit the driver in any way as to his choices, and the driver accepted the offer, the claim is not successful. One benefit of this procedure is that the officer can tell his city attorney that the driver actually got a blood test taken, and the city attorney is entitled to the results of that test under the Rules of Criminal Procedure.

10. While officers have no duty to provide test kits, the Hennepin County Jail and some other jails provide urine sample bottles as substitutes for unacceptable glass containers where a friend comes with the proverbial Skippy jar or Tupperware container. Some troopers provide BCA urine kits free of charge. Drivers may still claim that the test was not administered by a person of their own choosing, but it is difficult to make the officer look unreasonable when he or she goes above and beyond the call of duty in

rendering assistance to the driver. However, while security concerns can justify denying friends or family members from coming into the jail, officers should not deny the driver the chance to provide his own plastic sample container. See Mark v. Commissioner of

Public Safety, No. A04-1905 (Minn. Ct. App. May 10, 2005) (unpublished opinion).

11. While officers have no duty to advise drivers of the right to an additional test, several very experienced officers have adopted a policy of expressly telling the driver of that right while explaining the results of the Intoxilyzer test (or after collecting a blood or urine sample) and offering to let them use the telephone to call their attorneys or friends for further advice. They can therefore record that the driver decided not to bother and head off a potential “additional test issue.”

12. Most recently, there have been a number of cases where drivers have been allowed to make calls to arrange for additional tests, and as far as police know, nobody ever came to administer the test. Yet, friends appear to testify that they brought a Tupperware container to the jail, showed it to the jailer at the door, and said they were there to administer a “pee test,” but were turned away. If there are no jail records of any kind—security camera videotapes or visitor logs—jailers may have no recollection, and the judge may accept the friend’s story. It would be advisable for every jail to maintain some kind of log as to who came to visit the prisoner, date, time, stated purpose of the visit, and any comments as to what happened. It might then be possible to challenge these friends by producing the log page for the date and time they claim to have come to the jail and ask them to show the entry confirming that they were, in fact, there.

13. The statute says the driver has a right to an additional test or tests. We have seen at least one case where the driver has had an additional test administered by a professional testing service, only to claim that a “friend” also came to administer a urine test and was turned away. Officers should not assume that because an additional test has been administered, there will not be an additional test issue raised.

14. Prosecutors may consider arguing that by providing for additional testing, the Legislature obviously intended to protect the right to obtain a competent test, and not to simply create room to play games. Therefore, when a person calls a friend to bring a Skippy jar, Tupperware container or Zip-Loc plastic bag to the jail for a urine test, it becomes obvious that the person is not genuinely interested in obtaining a test result which can be used to challenge the police-administered test, but is merely attempting to create a “denial of additional test” issue. Experience indicates that test “samples” collected in that manner are not going to be analyzed by any reputable laboratory. Indeed, laboratories have refused to analyze urine samples collected using BCA kits given free to drivers by helpful officers. The Legislature cannot be presumed to have intended the statutory exclusionary rule to apply to utterly useless proposed “tests” where there is no reasonable prospect that the sample can be tested, or that it would produce results that could ever be admitted in court.