Young v. Commissioner of Public Safety

NIERENGARTEN, Judge

(dissenting).

I respectfully dissent.

The Bureau of Criminal Apprehension recommends that when the correlation between the breath samples is below 90%, the officer should run another test. Abe v. Commissioner of Public Safety, 374 N.W.2d 788, 791 (Minn.Ct.App.1985). This court recognizes that “strict adherence to. BCA recommendations is always a commendable goal.” Wells v. Commissioner of Public Safety, 392 N.W.2d 721, 723 (Minn.Ct.App.1986). While the implied consent statute provides that a driver consents to “a chemical test,” Minn.Stat. § 169.123, subd. 2(a) (Supp.1985), the implied consent statute is a remedial law, which authorizes the exercise of police power for the protection of the public, and should be liberally construed. The driver should submit to a second test here. It was reasonable for the officer to request another test when the breath correlation was below 90%.

Young also asserted that the second test was taken without his informed consent because he did not know he could refuse. The trial court and the referee found he consented, and this finding is not clearly erroneous. Further, the only information the police are required to give is that mandated by statute. State v. Gross, 335 N.W.2d 509, 510 (Minn.1983); Hansen v. Commissioner of Public Safety, 393 N.W.2d 702, 705 (Minn.Ct.App.1986). When the officer requested the second test, he was not required to reread the implied consent advisory or give additional information. Hansen, 393 N.W.2d at 705.

Young contends that because the first test is valid and reliable, it is the only test relevant to the proceeding, and the second test is inadmissible, absent a showing the *216first test is not valid and reliable. There are two valid test results here. One indicated an alcohol concentration of .09, and the other an alcohol concentration of .10. In keeping with the remedial purposes of the implied consent law, State v. Juncewski, 308 N.W.2d 316, 319 (Minn.1981), where there is a valid test which indicates an alcohol concentration of .10 or more, the trial court properly sustained revocation of Young’s driving privileges. Minn.Stat. § 169.123, subd. 4 (1984). The trial court’s decision should be affirmed.