This opinion will be unpublished and may

not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C8-99-1393

 

 

State of Minnesota,

Respondent,

 

vs.

 

Timothy John Morseth,

Appellant.

 

 

Filed March 21, 2000

Affirmed

Lansing, Judge

 

Chippewa County District Court

File No. K39979

 

 

Mike Hatch, Attorney General, Max A. Keller, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for respondent)

 

David M. Gilbertson, Sarah E. Winge, Nelson Oyen Torvik, P.L.L.P., 221 North First Street, Montevideo, MN 56265 (for respondent)

 

Harry D. Hohman, Wojtalewicz & Hohman Law Firm, Ltd., 139 North Miles Street, Appleton, MN 56208 (for appellant)

 

            Considered and decided by Davies, Presiding Judge, Lansing, Judge, and Harten, Judge.

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            In an appeal from conviction and sentencing for gross-misdemeanor driving while under the influence, Timothy Morseth challenges the district court’s conclusion that he had a reasonable opportunity to consult with an attorney.  Because the record demonstrates vindication of Morseth’s right to counsel, we affirm.

FACTS

            Two Montevideo police officers arrested Timothy Morseth for driving under the influence of alcohol.  The officers drove Morseth to the Chippewa County jail, where they read Morseth the implied-consent advisory, recording the discussion on audiotape.  Morseth told the officers he would agree to take a blood-alcohol test, but that he wanted to speak with an attorney.  The officers provided Morseth with several phone directories, including a Willmar phone book with a list of attorneys.  The officers also told Morseth he could contact a public defender, noting the name of the only public defender currently practicing in the area.

Morseth did not identify any particular attorney he wanted to contact and instead sought advice from one of the officers, who was an acquaintance of Morseth’s.  The officers told Morseth he must make his own decision and suggested he select someone from the phone book or call the public defender.  After discussion of various alternatives, the officer who Morseth knew said that he would dial the public defender, but Morseth had to talk to him.  The district court found that Morseth nodded his head in agreement.  Morseth spoke with the public defender and, after the conversation, agreed to take the Intoxilyzer test.

            The district court denied Morseth’s pretrial motion to suppress the Intoxilyzer results, concluding that Morseth’s limited right to counsel had been vindicated.  The issues were submitted under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), and the district court found Morseth guilty of gross-misdemeanor DWI.  Morseth challenges the conviction, asserting he was denied a reasonable opportunity to consult with counsel of his own choice.

D E C I S I O N

            Under the Minnesota Constitution, a driver has a limited right to consult with an attorney before deciding whether to submit to testing.  Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).  That right is vindicated if the driver “is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.”  Id. (quoting Prideaux v. State, Dep’t of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976)).  Police officers must assist in the vindication of the right to counsel.  Id.  But the driver must make a good-faith effort directed toward contacting an attorney.  Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). 

            Courts consider several factors in determining whether a driver had a reasonable opportunity to consult with an attorney, including whether the driver was given a reasonable time to contact counsel, whether the officer assisted the driver in contacting counsel, whether the officer provided telephone directories to the driver, whether the driver was allowed to contact anyone the driver selected, the hour at which the driver is attempting to contact counsel, and the length of time the driver has been under arrest.  See Friedman, 473 N.W.2d at 835; Kuhn, 488 N.W.2d at 842; Parsons v. Commissioner of Pub. Safety, 488 N.W.2d 500, 502 (Minn. App. 1992).  The court considers the “totality of the facts” in determining whether a driver’s right to counsel has been vindicated.  Parsons, 488 N.W.2d at 502.  Once the facts are established, their significance becomes a question of law.  Id. at 501.

Morseth argues that three circumstances demonstrate that his right to counsel was impermissibly restricted:  he did not have an opportunity to dial the telephone himself,  he did not personally select the attorney he spoke with, and he was not allowed sufficient time to make a choice of an attorney.

We disagree that Morseth’s rights were impermissibly restricted.  First, this court has previously found that refusing to allow a driver to personally dial the telephone does not, by itself, deny a driver’s right to counsel.  Linde v. Commissioner of Pub. Safety, 586 N.W.2d 807, 810 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).  Further, Morseth did not ask to dial the phone, and the transcript of the discussion demonstrates that the police were attempting to help Morseth, whose responses suggest he may have been in no condition to help himself.  See Mulvaney v. Commissioner of Pub. Safety, 509 N.W.2d 179, 181 (Minn. App. 1993) (driver must make effort to exercise right); Kuhn, 488 N.W.2d at 842 (same).  Second, Morseth did not provide the officers with a name or number of any attorney and made no effort to use the phone book that the officers provided him.  In addition, the district court specifically found that Morseth responded affirmatively to the officers’ suggestion of calling the public defender.  Credibility determinations are properly made by the factfinder observing the testimony.  State v. Blacksten, 507 N.W.2d 842, 847 (Minn. 1993).  Third, we do not find it significant that Morseth spoke with the public defender only eight minutes after the police read the implied-consent advisory.  Morseth agreed to speak with the public defender and, after he finished, failed to indicate in any way that he wanted to talk to another attorney.  This sequence of events does not provide a predicate for an argu ment that a driver be provided a specific amount of time to contact an attorney.

The evidence, including the verbatim transcript, fully supports the district court’s findings that the officers attempted to assist Morseth by providing a phone, directories, and the name of the local public defender, and by dialing the phone after Morseth indicated he wanted to talk with the public defender.  The district court did not err in concluding that Morseth’s limited right to counsel was vindicated.

            Affirmed.