dissenting.
[¶ 20] Because there is no evidence Luebke made any arrangements for an independent test, I would affirm.
[¶ 21] The majority concludes, at ¶ 17, a remand is necessary for the agency to make *194“findings on whether Luebke had made sufficient arrangements for an independent test at the hospital.”
[¶ 22] The testimony elicited at the hearing showed only that the Sheriffs department, if it chooses to give a blood test instead of a breath test, may have a test taken at any time of day, by going to the hospital and having a nurse call a lab technician to come in and draw blood. There were no questions asked at the hearing regarding whether this arrangement might apply to independent requests for tests. There were also no questions asked about the hospital’s payment policy or other issues for private independent tests, as opposed to tests for the Sheriffs department. Even assuming, however, the standing arrangement might have applied to Luebke, there was no evidence Luebke tried to call the hospital, was otherwise aware of this policy, or made any arrangements for a test. Compare Lock v. Moore, 541 N.W.2d 84, 86, 88 (N.D.1995) (holding police officer was not required to volunteer knowledge that local doctor had in the past come to the prison and performed independent tests and concluding Lock should have used access to phone to make arrangements for a test or at least asked officer about potential for independent test).
[¶ 23] Under Messner, and the various authorities it cites, once law enforcement has allowed access to a telephone, it is up to the accused to show he made arrangements with a qualified person for a test, before law enforcement has a further duty to accommodate an accused’s request for an independent test. State v. Messner, 481 N.W.2d 236, 240 (N.D.1992).
[¶ 24] There is no evidence Luebke made any arrangements for an independent test. There is no evidence Luebke was aware of the Sheriffs department’s arrangements for its tests. There is no evidence the Sheriffs department’s arrangements for its tests would have applied to Luebke. And even if there was, there is no evidence either Luebke or relevant law enforcement were aware of it. When there is no evidence, there is no need to remand for further findings. See In re Annexation of Part of Donnybrook Pub. Sch. Dist. No. 24, 365 N.W.2d 514, 524 (N.D.1985).
[¶ 25] I therefore dissent.
[¶ 26] Dale V. Sandstrom