This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Jerry Thomas Sherman,
Stearns County District Court
File No. K700957
Considered and decided by Toussaint, Chief Judge, Hanson, Judge, and Huspeni, Judge.*
U N P U B L I S H E D O P I N I O N
TOUSSAINT, Chief Judge
The State of Minnesota appeals from a pre-trial order suppressing intoxilyzer test results. Appellant argues that the district court erred in ruling that the driver was denied the right to counsel. Because respondent’s right to counsel was not vindicated, the district court did not err. We affirm.
In February 2000, respondent Jerry Thomas Sherman was arrested for an alleged violation of Minn. Stat. § 169.121, driving while under the influence. After being read the implied consent advisory, Sherman indicated he wanted to consult an attorney before consenting to the intoxilyzer breath test. Sherman was then given access to a telephone and a current copy of “The Blue Pages”, a publication that lists attorneys in Minnesota who practice in criminal defense and DWI law. The publication listed two attorneys in Stearns County as well as dozens of other attorneys throughout the state. Sherman was not given access to a regular telephone book. Sherman made no particular request for additional information from an officer, and did not have any specific attorney to call upon. Sherman made several phone calls. After speaking with someone, Sherman consented to the intoxilyzer test. The test indicated a .10 blood alcohol concentration.
Sherman moved to suppress the results of the intoxilyzer test, arguing his right to counsel was not vindicated. The district court granted Sherman’s motion to suppress the intoxilyzer test results. This appeal followed.
To the extent the facts are uncontested, the issue of whether a driver was given a reasonable opportunity to consult with counsel is a question of law that is reviewed de novo. McNaughton v. Commissioner of Pub. Safety, 536 N.W.2d 912, 914 (Minn. App. 1995).
If the state appeals pretrial suppression orders in criminal prosecution, it “must clearly and unequivocally” show both that the trial court’s order will have a ‘critical impact’ on the state’s ability to prosecute the defendant successfully and that the order constituted error.” State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (citing State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995). “[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error.” Id. “Critical impact has been shown not only in those cases where the lack of the suppressed evidence completely destroys the state’s case, but also in those cases where the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution.” State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987).
The state argues that the intoxylizer test results in this case are “central and essential” to the charge of driving while under the influence, and driving with an alcohol concentration of .10 or greater, suppression of which would reduce the likelihood of a successful prosecution. See State v. Ault, 478 N.W.2d 797, 799 (Minn. App. 1991) (finding that suppression of test results reduces the likelihood of success by the prosecution). Here, two of the three counts were dismissed when the district court ordered the suppression of the test results. Furthermore, this court has stated that suppression of a breath test has a critical impact on a DWI trial. See State v. Nelson, 399 N.W.2d 629, 632 (Minn. App. 1987) (finding that suppression of a breath test constituted critical impact where a defendant was charged with driving while under the influence, and alcohol concentration of .10 or more); see also State v. Galarneault, 354 N.W.2d 597, 599 (Minn. App. 1984) (finding suppression of a breath test has a critical impact in the outcome of a DWI case). As a result, the suppression of the intoxilyzer test results would have a critical impact on the outcome of this matter.
We must then determine whether the district court erred in suppressing the test results. The state argues that the district court erred in holding that Sherman’s limited right to counsel was not vindicated before he submitted to the breath test. When an officer asks a driver to submit to a breath test pursuant to the implied consent law, the driver has a limited right to consult with counsel before deciding to take that test. Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 832 (Minn. 1991). The driver has a right to consult counsel of his own choosing and officers must assist in the vindication of that right. Prideaux v. State, Dep’t of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976). That right is vindicated if the driver is provided with a telephone and given a reasonable time to contact and talk with counsel. Id.
In this appeal, McNaughton v. Commissioner of Pub. Safety, 536 N.W.2d 912 (Minn. App. 1995) is controlling. In that case, instead of giving McNaughton a telephone book, the officer gave him a pre-selected list of five attorneys in the area who handled driving while under the influence cases. Id. at 913-14. This court concluded that the list of five pre-selected attorneys in the area limited McNaughton’s choice of an attorney because he did not have access to a telephone book. Id. at 915. This court held that, under these circumstances, McNaughton’s limited right to counsel was not vindicated because he was not given the opportunity to consult counsel of his own choosing. Id.
Here, it is undisputed that Sherman did not request additional information or have the name of any particular attorney to consult. But, even though Sherman was given reasonable time to use the phone, Sherman only had an opportunity to select one of two Stearns County attorneys listed. Like McNaughton, the list limited Sherman’s choice of an attorney because he did not have access to a telephone book. Accordingly, because Sherman was not given a reasonable opportunity to choose an attorney of his choice, his limited right to counsel was not vindicated.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.