The independent test must be administered where the person is in custody. There can be no cost to the state of Minnesota for this independent test. Additionally, the failure or inability to take the independent test has no bearing on where the governmentally compelled test is admitted in evidence against the person. However, the police cannot thwart the person’s attempt to obtain an independent sample. If they do interfere with that request, evidence taken from the government’s sample may not be admitted at trial.
The person charged with DWI can ask a court to throw out the evidence obtained from the police sample if they hampered the person’s ability to obtain an independent sample. Minnesota’s courts draw a distinction between an officer who actively prevents a person from obtaining an independent sample and a police officer who simply fails to assist the person. Minnesota’s courts have said that the police must provide access to a telephone. Courts put a very fine point on what access to a telephone means. Under Minnesota law, the police officer cannot refuse the arrested individual, while in-custody, the opportunity to make a call to arrange a second independent test, if requested.
The police have no obligations to the person besides allowing access to a telephone. The police do not need to help the individual make arrangements for the independent test, provide transportation to the test or give the person any supplies to help with test administration. The police are under no obligation to find a driver for the person to get to the independent test.
Furthermore, the police have no duty to inform an individual about the possible consequences of taking an independent test. Minnesota courts place an affirmative duty on attorneys to give legal advice. Courts have refused to burden the police with that requirement. Attorneys are in a better position to explain the benefits and possible pitfalls to taking an independent test.
Do not rely on the police to help you figure out if you should take an independent chemical test. The police may treat you fairly, but they are under no obligation to help you. An experienced, accomplished, and successful DWI attorney can properly advise you about all of your legal rights and options.
Sources:
Kuehn v. Commissioner of Public Safety, Minn: Court of Appeals 2016
POESCHEL v. Commissioner of Public Safety, Minn: Court of Appeals 2015