This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Christopher S. Fischer, petitioner,
Commissioner of Public Safety,
Filed February 8, 2000
Hennepin County District Court
File No. 476876
Peter B. Wold, Wold, Jacobs & Johnson, P.A., Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415; and
Charles N. Ek, The Law Office of Charles N. Ek, P.A., Suite 205, Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for appellant)
Mike Hatch, Attorney General, Joel A. Watne, Assistant Attorney General, Suite 500, 525 Park Street, St. Paul, MN 55103-2106 (for respondent)
Considered and decided by Schumacher, Presiding Judge, Crippen, Judge, and Foley, Judge.[*]
U N P U B L I S H E D O P I N I O N
The Commissioner revoked appellantís driverís license on a report that appellant refused an appropriate demand for intoxication testing. Claiming that his right to counsel was not vindicated at the time of the implied consent advisory, appellant disputes the trial courtís decision to sustain the revocation of his license. We affirm.
After a DWI stop and a subsequent implied consent request, appellant was permitted a telephone call, which he made to his mother at 2:31 a.m. After this conversation went on for 24 minutes, the officer concluded that the attempt to contact counsel was not occurring and demanded that appellant make a decision regarding the implied consent testing. Appellantís mother testified that appellant called her, that she was unable to recall the name of a defense attorney she had used before, and that she finally found another attorney when she began looking in the yellow pages about 20 minutes after talking with her son.
D E C I S I O N
If the underlying facts are undisputed, it is a question of law whether a driverís right to counsel was violated. Gergen v. Commissioner of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996).
Under the Minnesota Constitution, the driver stopped for DWI has a right to a reasonable amount of time to attempt to consult with counsel by telephone before deciding whether to comply with the statutory requirement of implied consent testing. Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 837 (Minn. 1991). The inquiry into the proper length of time focuses both on the driverís diligence in exercising the right and the officerís steps to vindicate the right. Gergen, 548 N.W.2d at 309.
The driverís limited right is vindicated by the officer if a driver "Ďis provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.í" Friedman at 835 (citation omitted). The driver may have to make an independent decision regarding testing if he or she cannot contact counsel within a reasonable time. Id.
In determining whether an officer vindicates the driverís right to consult with an attorney, courts consider several factors, including the time made available to contact counsel, the officerís assistance, especially in providing telephone directories and giving freedom to contact anyone, the time of day of the contact, and the length of time the driver has been under arrest. See Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).
The facts in this case sustain the trial courtís conclusion that the officer gave appellant sufficient time and assistance. It is undisputed that the officer helped appellant in his search for an attorney by taking appellant to a telephone and giving appellant a yellow pages directory, and that he gave appellant the freedom to call whomever appellant wished. These circumstances permit the trial courtís conclusion, notwithstanding evidence that the occurrence was in early-morning hours, shortly after the police arrested appellant, and the officer did not tell appellant at the beginning of the phone call that he only would be permitted 24 minutes.
Evidence on the appellantís efforts to obtain counsel further sustains the trial courtís conclusion that appellant was given a reasonable time to make contact with counsel. The good faith of the driver is a fact question, and the courtís order in this case implies a finding that appellant did not make a good faith effort to contact counsel. See Gergen, 548 N.W. at 309.
It is undisputed that appellant made no evident progress in contacting an attorney in the course of 24 minutes already permitted for that purpose. He called his mother, not an attorney, and there is no evidence that he indicated to the officer that his mother would assist him in contacting an attorney, or that he needed more time for that purpose. The trial court may have believed the officerís testimony that appellant never asked for more time; if appellant asked for more time, as he says he might have, it is unclear whether he asked for more time to contact an attorney or more time to talk with his mother. The court did not err in assessing appellantís efforts.
Affirmed.[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.