This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Daniel John Newquist, petitioner,
Commissioner of Public Safety,
Hennepin County District Court
File No. IC478686
David J. Brodie, Carl J. Newquist, Newquist & Ekstrum, Chartered, 6401 University Avenue NE #301, Fridley, MN 55432 (for appellant)
Mike Hatch, Attorney General, Sean R. McCarthy, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)
Considered and decided by Anderson, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.
On appeal from an order of the trial court sustaining the revocation of his driver’s license, appellant argues that (1) his right to counsel was not vindicated because he was denied the reasonable opportunity to speak in-person with his attorney before being administered the breath test and (2) his right to an additional test was prevented or denied when he was denied an in-person consultation with his attorney. Because we find that appellant’s limited right to counsel was vindicated and that an additional blood test was not prevented, we affirm.
On April 29, 2000, at approximately 11:35 p.m., University of Minnesota Police Officer Kimberly Turley saw a vehicle come to a stop in the crosswalk of an intersection. Turley followed the vehicle, saw conduct that she believed to be illegal, and pulled over appellant Daniel John Newquist’s vehicle. Turley suspected that appellant was under the influence of alcohol and transported him to the University of Minnesota Police Department. After they arrived at 12:15 a.m., she began reading the implied consent advisory form to him. Appellant told Turley that he wished to consult an attorney. Appellant was given access to a telephone and called his father, attorney Carl Newquist, at approximately 12:18 a.m. They spoke for about 15 minutes. Appellant’s father told him it was a crime to refuse testing and that he would drive from his home in Coon Rapids to meet with appellant. The drive would take about 30 minutes. Turley agreed to allow appellant to wait.
At approximately 1:12 a.m., Turley told appellant that he had been given a reasonable time to contact an attorney and that he would have to decide whether to take the Intoxilyzer test. At 1:20 a.m. appellant’s breath test began. Turley provided information to the testing officer and went into the hallway. At that point, her sergeant informed her that Carl Newquist was in the lobby and identified him as appellant’s father and attorney. Turley went to the lobby and informed appellant’s father that appellant was taking the test at that time.
At 1:23 a.m., a breath test result of .16 was recorded. After Turley inquired whether appellant could be released to his father’s custody—a request which Turley’s sergeant denied—she transported him to the Hennepin County jail at about 2:00 a.m., pursuant to University of Minnesota Police policy. Because the jail was extremely busy, appellant was not booked until 6:09 a.m. and not released until later that afternoon. While appellant was in detention, appellant’s father attempted to speak with him at the jail. But because appellant had not been booked, no discussion was permitted. Appellant left a message for his father at approximately 6:00 a.m., telling him that he had been booked. Appellant’s father then spoke to a sheriff’s deputy about gaining appellant’s release. Appellant’s father wrote appellant a note that asked appellant to call him immediately, but later learned that appellant did not receive the note until he was released. Appellant’s license was revoked by the Commissioner of Public Safety and he appealed the revocation to the district court.
The district court heard testimony from Officer Turley, appellant, and appellant’s father. On July 25, 2000, the court issued an order affirming the revocation of appellant’s license. The district court found that appellant called his father/attorney at 12:30 a.m., who told appellant that it was a crime to refuse testing and that he would drive to the police station. Due to the length of the call and then the length of his drive, appellant’s father could not have arrived before 1:10 a.m. The court also found that appellant’s father arrived at the station at 1:15 a.m. at the earliest, and the data entry for appellant’s Intoxilyzer test began a few minutes before 1:20 a.m. Appellant’s father knew he could call a testing company for appellant but chose not to do so. The court made credibility determinations and found that to the extent there were inconsistencies, Officer Turley’s testimony was more credible than either appellant or his father.
The district court concluded that Turley was correct in deciding that appellant had sufficient time to consult with an attorney before beginning the testing procedure. In addition, because appellant had received advice of counsel via the telephone and his father did not arrive at the police station promptly, the district court determined that appellant’s limited right to counsel was vindicated. The district court also held that although appellant’s father may have wished to have him released in order to get an additional test, the right was waived because appellant never put officials on notice of his desire for an additional test. This appeal follows.
D E C I S I O N
The determination of whether an officer vindicated a driver’s right to counsel is a mixed question of law and fact. Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). Once the facts are established, we make a legal determination as to whether the defendant “was accorded a reasonable opportunity to consult with counsel based on the given facts.” Id.
Appellant challenges the district court’s finding that his attorney did not arrive until 1:15 a.m. Based on the testimony of appellant and appellant’s attorney, appellant argues that this finding was clearly erroneous.
On appeal, this court will not disturb a district court’s factual findings unless they are clearly erroneous. Minn. R. Civ. P. 52.01. “Findings of fact are clearly erroneous only if the reviewing court is left with the definite and firm conviction that a mistake has been made.” Fletcher v. St. Paul Pioneer Press, 589 N.W.2d 96, 101 (Minn. 1999) (quotation omitted). In addition, “[j]udging a witness’s credibility is a duty for the trier of fact and we defer to the [trier of fact’s] judgment in this matter.” Walker v. State, 394 N.W.2d 192, 196 (Minn. App. 1986), review denied (Minn. Nov. 26, 1986).
Appellant’s father testified that he arrived at the police station between 1:05 and 1:10 a.m., and appellant testified that he was told that his father had arrived at 1:12 a.m. But Turley, who accompanied appellant to the testing room, testified that she was not informed of the attorney’s arrival until after she left the testing room, approximately 1:20 a.m. The district court explicitly stated that to “the minor extent that their testimony differed,” Turley’s testimony was more credible than either appellant or his father. Because the court found Turley’s testimony more credible and the record supports the fact that appellant’s father did not arrive until 1:15 a.m., there is no reason to reverse this finding.
We note as a preliminary matter that the district court, relying on Palme v. Commissioner of Pub. Safety, 541 N.W.2d 340 (Minn. App. 1995), stated that appellant did not make a good faith effort to contact counsel. We do not find this a correct statement of law as applied to these facts. The defendant in Palme was deemed to have refused testing when he told the police officer that he would not submit to testing because he was waiting for a call from a criminal defense attorney. Id. at 345. Conversely, here appellant had spoken to his father/attorney and was waiting for his father to arrive. Instead of finding no good-faith effort, we find that appellant’s right to counsel was vindicated when he was allowed to speak on the telephone with his father. See In re Senty-Haugen, 583 N.W.2d 266, 268 (Minn. 1998) (holding that a district court’s decision should not be overturned if it may be affirmed on a different theory).
Appellant claims that his limited right to counsel under Minn. Stat. § 169.123, subd. 2(b)(4) (1998), was not vindicated prior to being required to submit to a blood-alcohol breath test. Appellant argues that under the circumstances he should have been allowed to speak with his attorney before submitting to testing.
Under the Minnesota Constitution, drivers stopped for DWI have a limited right to a reasonable amount of time, upon request, to attempt to consult with counsel by telephone before deciding whether to comply with the statutory requirement of implied consent testing. Davis v. Commissioner of Pub. Safety,517 N.W.2d 901, 902 (Minn. 1994) (citing Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 837 (Minn. 1991) (finding this right under the right-to-counsel clause in Minn. Const. art. I, § 6)); see Minn. Stat. § 169.123, subd. 2(b)(4). We decide whether a driver’s limited right to counsel has been vindicated from the “the totality of the facts.” Parsons v. Commissioner of Pub. Safety, 488 N.W.2d 500, 502 (Minn. App. 1992). The inquiry as to whether a defendant was afforded his constitutional right to counsel focuses “both on the police officer’s duties in vindicating the right to counsel and the defendant’s diligent exercise of the right” and, as a threshold matter, “the driver must make a good faith and sincere effort to reach an attorney.” Kuhn, 488 N.W.2d at 842.
The recitation of the implied consent advisory and testing is not a custodial interrogation, and a driver does not possess the right to have counsel present during either of these procedures. See Sturgeon v. Commissioner of Pub. Safety, 350 N.W.2d 487, 489 (Minn. App. 1984) (holding that although a driver has the right to consult with counsel before taking the test, there is no right to have counsel present during the test itself); see also McDonnell v. Commissioner of Pub. Safety, 473 N.W.2d 848, 855 (Minn. 1991) (holding that a Miranda warning is not required because a request to undergo testing does not constitute interrogation but is merely attendant to arrest and custody).
Appellant argues that he had the right to speak in-person with his attorney and that the denial of this right resulted in the failure to vindicate his right to counsel. See State, Dep’t of Pub. Safety v. Kneisl, 312 Minn. 281, 286, 251 N.W.2d 645, 649 (1977) (holding that a DUI arrestee’s limited right to counsel includes the right to a private conference with an attorney at the jail before he or she decides whether to submit to testing if the attorney, in response to the arrestee’s phone call, arrives at the jail in time to permit the administration of a valid test). Appellant argues that this case is “factually identical to Kneisl.” Like the counsel in Kneisl, appellant’s attorney arrived at the station before the testing procedure was completed.
But in Kneisl, the lawyer arrived either during or immediately after the reading of the implied consent advisory form. Here, the district court found that appellant’s father arrived no earlier than 1:15 a.m., approximately the same time as the start of the Intoxilyzer test. The district court also found that the data entry, if not the actual breath portion of the test, began a few minutes before 1:20 a.m. Therefore, unlike Kneisl, appellant had agreed to take a breath test and had, at the very least, begun the testing procedure before his father arrived at the police station.
The police allowed appellant access to a telephone and he contacted an attorney, his father. The police also allowed appellant to wait 30 minutes from the end of his telephone call with his father before compelling him to decide whether to take the test. The testing procedure was started approximately one hour and 45 minutes after the time of the traffic stop. See Minn. Stat. § 169.121, subd. 1(e) (1998) (making it a crime to have an alcohol concentration of .10 or more within two hours of driving). The police need not delay testing while awaiting the arrival of an attorney. Martin v. Commissioner of Pub. Safety, 358 N.W.2d 734, 736 (Minn. App. 1984). The access to a telephone and the amount of time the police waited for appellant’s father to arrive at the station was reasonable to allow appellant to vindicate his limited right to counsel.
Appellant’s final argument is that his right to a second test was not vindicated because he was not allowed an in-person consultation with his attorney to determine whether to obtain a second blood-alcohol test.
In Minnesota, a person arrested for DUI has the option of having a third party administer an additional test to determine the level of alcohol in his or her system. The relevant statute provides:
(a) * * * The person tested has the right to have someone of the person’s own choosing administer a chemical test or tests in addition to any administered at the direction of a peace officer; provided, that the additional test sample on behalf of the person is obtained at the place where the person is in custody, after the test administered at the direction of a peace officer, and at no expense to the state.
(b) The failure or inability to obtain an additional test or tests by a person shall not preclude the admission in evidence of the test taken at the direction of a peace officer unless the additional test was prevented or denied by the peace officer.
Minn. Stat. § 169.123, subd. 3 (1998).
When deciding whether an additional test has been denied, courts have distinguished between whether an officer failed to assist efforts to obtain an additional test or hampered an attempt to obtain such a test. Haveri v. Commissioner of Pub. Safety, 552 N.W.2d 762, 765 (Minn. App. 1996), rehearing denied (Minn. Oct. 29, 1996). It is well established that the only obligation an officer has when assisting an arrestee in obtaining an additional test is to allow him to use a telephone. Cosky v. Commissioner of Pub. Safety, 602 N.W.2d 892, 894 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000) (citation omitted). An officer is not required to instruct a motorist on how to obtain an additional test. Ruffenach v. Commissioner of Pub. Safety, 528 N.W.2d 254, 256-57 (Minn. App. 1995).
Here, the district court concluded that appellant had waived his right to an additional test because appellant failed to request one. See DeBoer v. Commissioner of Pub. Safety, 406 N.W.2d 43, 45-46 (Minn. App. 1987) (although defendant was held “incommunicado” for two hours, he waived his right to an additional test because he did not renew his request for additional testing despite having access to a telephone and apparently speaking to an attorney). We agree.
Appellant never made clear his intent to have a second test administered, although he had an opportunity to speak with his lawyer before submitting to testing and another opportunity to make a telephone call upon being booked. The only indication that an additional test was desired was a statement allegedly made by appellant’s father to a deputy at the Hennepin County jail. But there is nothing in the record that indicates that appellant’s father ever contacted anyone to perform an additional test. “If appellant did not request an additional test, the officers could not have hindered his attempt to obtain one.” Przymus v. Commissioner of Pub. Safety, 488 N.W.2d 829, 833 (Minn. App. 1992), review denied (Minn. Sept. 15, 1992). Given that appellant never requested an additional test, his attorney never arranged for a second test, and there is no evidence that the police denied him the right to a test, we hold that the district court did not err in finding that appellant’s right to an additional test had been waived.
 Kneisl was decided pre-Friedman and based on a statutory right to counsel. See Minn. Stat. § 481.10 (1996). Friedman based the limited right to counsel on the Minnesota Constitution, therefore, Minn. Stat. § 481.10 may no longer apply to implied consent proceedings. Friedman, 473 N.W.2d at 837. Thus, Kneisl may not control because Minn. Stat. § 481.10 no longer applies in implied consent or DUI proceedings. As Kniesl is distinguishable, we need not decide this issue.