This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
IN COURT OF APPEALS
Sharon Marie O’Boyle, petitioner,
Commissioner of Public Safety,
Toussaint, Chief Judge
Washington County District Court
File No: C7991557
James H. Leviton, 326 Union Plaza, 333 Washington Avenue North, Minneapolis, MN 55401 (for appellant)
Mike Hatch, Attorney General, Darren Logue Dejong, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)
Considered and decided by Toussiant, Chief Judge, Schumacher, Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
Appellant Sharon Marie O’Boyle challenges a district court order sustaining the revocation of her driving privileges. Appellant contends her right to consultation with an attorney of her choosing prior to chemical testing was not vindicated because she was: (1) not allowed to personally dial her attorney’s phone number; (2) not provided phone directories to contact an attorney specializing in DWI offenses; and (3) misled into believing she could only contact an attorney she knew. Because the police officer’s conduct was sufficient to vindicate appellant’s right to consultation with an attorney, we affirm.
D E C I S I O N
Where the facts are undisputed, this court reviews whether the driver was afforded a reasonable opportunity to consult with counsel de novo. Linde v. Commissioner of Pub. Safety, 586 N.W.2d 807, 809 (Minn. App. 1998); McNaughton v. Commissioner of Pub. Safety, 536 N.W.2d 912, 914 (Minn. App. 1995). A driver has a limited right to consult with an attorney prior to submitting to chemical testing. Linde, 586 N.W.2d at 809; see Minn. Stat. §169.123, subd. 2(b)(4) (1998) (limiting right to the extent the driver may not unreasonably delay administration of testing). “Police officers ‘must assist’ in the vindication of this right to counsel.” McNaughton, 536 N.W.2d at 914 (citation omitted). That right is considered vindicated “‘if the person is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.’” Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991) (quotation omitted).
Appellant contends Officer McCarthy effectively denied her right to have a meaningful consultation with an attorney of her choosing by: (1) not allowing her to dial the telephone personally; (2) not providing phone directories; and (3) misleading her into believing she could only contact the attorney she knew. The district court found:
3. Officer McCarthy then asked Petitioner if she knew an attorney to call or would like to use the telephone books. Petitioner responded that she knew an attorney, Dale Vitek, and his phone number was retrieved from her personal address book which was in her purse. Officer McCarthy dialed the phone number and handed the phone to Petitioner, who spoke to Mr. Vitek for over 13 minutes.
4. When Petitioner concluded her phone call with Mr. Vitek, she made no comments that she was not satisfied with her consultation or that she needed a telephone book to contact another attorney.
8. * * * Petitioner indicated to Officer McCarthy that she knew an attorney and that she had his phone number in her address book and wished to speak with him. Upon speaking with her attorney, Petitioner did not state that she wished to use the telephone books or consult with another attorney.
Unless clearly erroneous, a district court’s findings of fact will not be reversed. Minn. R. Civ. P. 52.01 (stating findings will not be reversed unless clearly erroneous, and due regard must be given to the district court’s opportunity to judge the credibility of the witnesses). At the implied-consent hearing, Officer McCarthy testified that he provided appellant access to a telephone and asked her whether she needed a telephone directory or had the number of the attorney she wished to contact. Officer McCarthy also testified that appellant did not express dissatisfaction with the 13-minute consultation with her attorney or indicate a desire to call another attorney. While appellant offered conflicting testimony, the district court did not err in crediting Officer McCarthy’s testimony over appellant’s testimony. See Wolle v. Commissioner of Pub. Safety, 413 N.W.2d 258, 260 (Minn. App. 1987) (explaining district court’s decision to credit an officer’s testimony over appellant’s conflicting testimony was not clearly erroneous). Because the record supports the district court’s findings of fact, they are not clearly erroneous.
However, relying on McNaughton, appellant argues her right to counsel was not vindicated because she was denied personal access to the telephone, telephone books, directory assistance, and misled into believing she could only contact one attorney. See McNaughton, 536 N.W.2d at 915 (suggesting right to counsel not vindicated when access to telephone is limited to list of pre-selected attorneys). This court recently held that “refusing to allow a driver to dial a telephone personally does not, by itself, deny the driver’s right to counsel.” Linde, 586 N.W.2d at 810. Therefore, Officer McCarthy did not deny appellant’s right to counsel by dialing her attorney’s phone number.
In addition, McNaughton is distinguishable from the present case. The driver in McNaughton was required to choose an attorney from a pre-selected list of five attorneys and never actually spoke with an attorney. In contrast, appellant: (1) provided the name of the attorney she wished to contact; (2) consulted with him for 13 minutes before voluntarily agreeing to submit to the testing; and (3) did not express any desire to contact another attorney or dissatisfaction with her attorney’s consultation. On this record, there is no indication Officer McCarthy thwarted any attempt or desire to use the telephone, telephone books, or directory assistance, or misled appellant into believing she could only call an attorney she knew.
Appellant also contends the police rendered inadequate assistance because: (1) Officer McCarthy did not provide her with telephone directories listing attorneys specializing in DWI and implied-consent law; and (2) her consultation with her real-estate attorney for her DWI offense was “of no value.” A driver must be allowed to contact and consult with an attorney of his or her own choosing. Delmore v. Commissioner of Pub. Safety, 499 N.W.2d 839, 842 (Minn. App. 1993). But, while an officer must “allow and facilitate the defendant’s right to counsel,” he or she need not “make sure the defendant has received the best or even proper counsel.” Butler v. Commissioner of Pub. Safety, 348 N.W.2d 827, 829 (Minn. App. 1984). The record shows appellant provided the name and number of the attorney she wanted to call and expressed no interest in consulting with another attorney before voluntarily submitting to testing. While appellant may regret her decision to call the attorney she chose for advice on her DWI arrest, there is no indication in the record Officer McCarthy thwarted appellant’s attempt to contact or consult with an attorney of her choosing.
While there was conflicting testimony on the issues adduced at the implied-consent hearing, the district court’s findings of fact are supported by the record and not clearly erroneous. See Wolle, 413 N.W.2d at 260 (holding district court’s decision to credit an officer’s testimony over appellant’s conflicting testimony was not clearly erroneous). Because the district court properly construed and applied the law to the facts of the case, its conclusions of law should also be upheld. See Dehn v. Commissioner of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986) (refusing to overturn conclusions of law absent a showing the district court erroneously construed and applied the law to the facts of the case). Therefore, the district court properly sustained the revocation of appellant’s driving privileges.