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STATE OF MINNESOTA IN COURT OF APPEALS A09-690 Jeffrey Mark Nelson, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent. Filed March 23, 2010 Affirmed Johnson, Judge Hennepin County District Court File No. 27-CV-08-26421 David J. Risk, Allan H. Caplan & Associates, Minneapolis, Minnesota (for appellant) Lori Swanson, Attorney General, Mary R. McKinley, Assistant Attorney General, St. Paul, Minnesota (for respondent) Considered and decided by Hudson, Presiding Judge; Connolly, Judge; and Johnson, Judge. SYLLABUS If a driver consents to a blood test following an arrest for driving while impaired and provides a blood sample that is drawn using an expired blood-test kit, an officer may request the driver to provide another blood sample. OPINION JOHNSON, Judge The commissioner of public safety revoked Jeffrey Mark Nelson's driver's license after he was charged with driving while impaired (DWI). After providing a blood sample

that was drawn using an expired blood-test kit, Nelson was asked to provide a second blood sample. Nelson argues that a police officer violated his limited right to counsel by refusing to allow him to speak with an attorney again before deciding whether to provide a second blood sample. He also argues that the officer was not permitted to request a second blood sample from him. We affirm. FACTS In September 2008, Brooklyn Park police officer Robert Anderson arrested Nelson for DWI. Officer Anderson transported Nelson to the Brooklyn Park jail, where he read the implied-consent advisory to Nelson and asked him to submit to chemical testing. Nelson asked to speak with an attorney, and a telephone was made available to him. After speaking with an attorney for approximately 25 minutes, Nelson agreed to take a breath test. But when the breath test was administered, Nelson did not provide a

sufficient breath sample. Officer Anderson then asked Nelson to submit to an alternative chemical test and read the implied-consent advisory to Nelson for a second time. Nelson stated that he wished to speak to his attorney again, and Officer Anderson allowed him to do so. Nelson spoke with his attorney for approximately eight minutes and agreed to a blood test. Officer Anderson transported Nelson to a hospital, where a nurse drew a blood sample using a blood-test kit designed to measure blood-alcohol concentration. Shortly after blood was drawn, however, the nurse informed Officer Anderson that the kit "was expired" and "no good." Officer Anderson consulted by telephone with a supervising police officer. Officer Anderson then informed Nelson that he must provide 2

another blood sample. Officer Anderson did not read the implied-consent advisory to Nelson for a third time. Nelson asked to speak to his attorney again. Officer Anderson refused Nelson's request to speak with his attorney for a third time and informed Nelson that his failure to provide a second blood sample would be considered a refusal to submit to a chemical test. Approximately 20 minutes later, a new blood-test kit was obtained, and Nelson provided a second blood sample. In October 2008, Nelson filed a petition for judicial review of his license revocation. At an implied-consent hearing in February 2009, Nelson challenged the revocation on several grounds. He argued that (1) Officer Anderson did not have

probable cause to believe that Nelson was driving while impaired, (2) the impliedconsent statute did not authorize Officer Anderson to request a second blood sample, (3) Officer Anderson was required to read the implied-consent advisory for a third time when requesting a second blood sample, and (4) Officer Anderson violated Nelson's limited right to counsel by denying him an opportunity to speak with his attorney for a third time before providing a second blood sample. After the implied-consent hearing, the district court issued an order that summarily sustained the revocation of Nelson's driver's license without making any findings of fact. Nelson appeals. ISSUES I. Did Officer Anderson violate Nelson's limited right to counsel by denying

him the opportunity to speak with his attorney again after the request for a second blood sample?

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II.

Was Officer Anderson permitted to request a second blood sample from

Nelson because the first blood sample was drawn using an expired blood-test kit? ANALYSIS Nelson challenges the district court's order sustaining the revocation of his driver's license. He reasserts the second and fourth arguments he asserted in the district court. I. Nelson first argues that the district court erred by rejecting his argument that Officer Anderson violated his limited right to counsel. Specifically, Nelson argues that Officer Anderson was required to allow him to speak with his attorney again before deciding whether to provide a second blood sample. We apply a de novo standard of review to the district court's conclusions of law on this issue. Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). "[U]nder the right-to-counsel clause in article I, section 6 of the Minnesota Constitution, an individual has the right, upon request, to a reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing." Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). In Friedman, the supreme court held that the point at which an individual is asked by law enforcement officials to undergo a blood alcohol test constitutes a critical stage in the criminal process and that article I, section 6 of the Minnesota Constitution guarantees an individual in such a

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situation the limited right to counsel within a reasonable time before submitting to testing. Id. at 837. An individual's "right to counsel is considered vindicated when the driver is provided with a telephone prior to testing and given a reasonable amount of time to contact and consult with an attorney." Mell v. Commissioner of Pub. Safety, 757 N.W.2d 702, 712 (Minn. App. 2008). Relying on Friedman, Nelson contends that Officer Anderson should have allowed him to speak with his attorney again after the request for the second blood sample because it was a "critical stage" in the DWI proceedings. See Friedman, 473 N.W.2d at 837. Nelson notes that a driver's request to speak with an attorney prior to testing must be honored unless it would "unreasonably delay administration of the test," Minn. Stat.

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