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Right to an Independent Chemical Test in a Minnesota DWI Case

Do you trust the accuracy of a cop’s breath test machine? Do you have faith the state’s crime lab will properly handle and analyze your blood or urine sample? In the age of second guessing police procedures around the clock, Minnesota already provides the right to second guess your alcohol concentration level determined by the state in DWI cases.[1] But the onus is squarely on the driver to make the request, and to make it at the proper time.

How do you get an independent test in a DWI case? Not right after being stopped. Not right after choosing whether to do field sobriety tests.[2] Not after blowing into the PBT (preliminary breath test) on the side of the road. After you submit, or refuse to submit, to law enforcement’s test is the crucial time to clearly and unequivocally request your independent test.

Recently, in Tackett v. Commissioner of Public Safety, the Minnesota Court of Appeals addressed whether a driver who requested an independent test prior to submitting to law enforcement’s test was a proper invocation of the driver’s right to obtain such a test. The court also analyzed whether a driver who requests an independent test prior to submitting to law enforcement’s test should be given post-test access to a telephone. Even though “[t]he only obligation an officer has in assisting the defendant in obtaining an additional test is to allow defendant use of a phone,”[3] the court in Tackett saw “no reason to place an affirmative obligation on the officer to remind appellant that he wanted to take an additional test.” Courts often require affirmative actions by an officer that prevent or deny a driver from obtaining an additional test.[4]

A person arrested on suspicion of DWI has a right to consult with an attorney before deciding whether to submit to an evidentiary chemical test. Because remembering what to do in every situation can be difficult, it is a good idea to contact an attorney during this time. Most will mention your right to request and obtain an independent test and the procedures for doing so (i.e. what company to call and potential costs). The independent test must be obtained at the location where you are in custody and at your expense. If an officer prevents your ability to obtain such a test, and you file a pre-trial motion on the issue and win, then the remedy is suppression of the state’s test results, which will do wonders for both your criminal and implied consent cases.

Robert H. Ambrose is a DWI and criminal defense lawyer in Minneapolis. He has a Lead Counsel Rating in Drunk Driving Defense; and was named a “10 Best” DWI Attorney in Minnesota for Client Satisfaction.

[1] Minn. Stat. §169A.51, subd. 7(b).

[2] Our previous blog here addresses whether you should do field sobriety tests.

[3] Haveri v. Comm’r of Pub. Safety, 552 N.W.2d 762, 765 (Minn. Ct. App. 1996) (citing Frost v. Comm’r of Pub. Safety, 348 N.W.2d 803, 804 (Minn. Ct. App. 1984)).

[4] State v. Shifflet, 556 N.W.2d 224, 228 (Minn. Ct. App. 1984).

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