(specially concurring).
While I agree with the majority’s result, I write separately to expound on my interpretation of Iowa Code section 321J.11 (1991) and how it affects the right to an independent chemical test in the context of a prosecution in a criminal trial for operating while intoxicated.
Iowa Code section 321J.11 describes how samples are to be taken for the purpose of determining alcohol concentration or the presence of drugs. Since these samples are used in both criminal prosecutions for operating while intoxicated and in administrative proceedings for license revocations, section 321J.11 is applicable to both proceedings. This section provides in the relevant part:
The person may have an independent chemical test or tests administered at the person’s own expense in addition to any administered at the direction of a peace officer. The failure or inability of the person to obtain an independent chemical test or tests does not preclude the admission of evidence óf the results of the test or tests administered at the direction of the peace officer.
Iowa Code § 321J.11 (1991) (emphasis added).
As the majority notes, we interpreted this statute in State v. Goodon, 443 N.W.2d 74, 76 (Iowa App.1989). In Goodon, the defendant .argued that his breath test should have been suppressed because he “was denied a meaningful opportunity to obtain an independent chemical test.” We held the emphasized portion of section 321J.11 permits consideration of the results of the test administered by the officer, even in situations where the defendant has requested and was unable to obtain the independent blood test. Goodon, 443 N.W.2d at 76. I write separately to make it clear that I reject any interpretation of Goo-don which would imply that, even when police misconduct is involved, section 321J.11 permits the introduction of the test results.1
*803I interpret the phrase “failure ... of the person to obtain an independent chemical test” to refer to situations where the defendant makes no effort or request to obtain a test. Likewise, I interpret “inability” to refer to situations, where for some reason other than the conduct of either the defendant or the police, an independent chemical test cannot be obtained. Where the defendant does not obtain an independent test because he is denied a reasonable opportunity to do so, there is neither a “failure” nor an “inability” to obtain a test under the statute.
I find other states have construed similar statutes the same way. See Lockard v. Town of Killen, 565 So.2d 679, 680-82 (Ala.Crim.App.1990); City of Blaine v. Suess, 93 Wash.2d 722, 612 P.2d 789, 790-91 (1980); State v. Hilditch, 36 Or.App. 435, 584 P.2d 376, 376-77 (1978); State v. Dressler, 433 N.W.2d 549, 550 (N.D.App.1988); Smith v. Cada, 114 Ariz. 510, 514, 562 P.2d 390, 394 (App.1977); Commonwealth v. Alano, 388 Mass. 871, 448 N.E.2d 1122, 1128 (1983).
To construe section 321J.11 otherwise would render meaningless the requirement of the statute that the arrestee be given the opportunity to obtain an independent chemical analysis. Nothing would prevent the ignoring of the request.
I vote with the majority because I agree with them that suppression of the breath test is not the appropriate remedy here. The purpose of excluding the breath test on these facts would be to deter the ignoring of the arrestee’s request for an independent test. Criminal prosecutions for driving while intoxicated and civil license revocation proceedings which, though “arising from the same incident” are nevertheless “separate and distinct.” Heidemann v. Sweitzer, 375 N.W.2d 665, 668 (Iowa 1985).
The imposition of an exclusionary sanction in this license revocation proceeding would have little force as a deterrent of unlawful police action because the department [of transportation] does not control the actions of local police officers. If application of the rule does deter police officers from engaging in unlawful conduct, its use in criminal proceedings should be sufficient to accomplish that purpose.
Westendorf v. Iowa Dep’t. of Transp., 400 N.W.2d 553, 557 (Iowa 1987).
HAYDEN, J., joins this special concurrence.
. In Goodon, we noted, "Additionally, we find no evidence defendant was prevented from obtain*803ing an independent test.” Goodon, 443 N.W.2d at 76. I believe Goodon was correctly decided on this alternate ground.