This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).







State of Minnesota,





Michael Welch Arend,




Filed May 1, 2001


Halbrooks, Judge


Todd County District Court

File No. K399305



Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and


Gaylord Saetre, Todd County Attorney, Joe E. Judd, Assistant County Attorney, 212 Second Avenue South, Long Prairie, MN 56347 (for respondent)


Leo I. Brisbois, Stich, Angell, Kreidler, Brownson & Ballou, PA, 120 The Crossings, 250 2nd Avenue South, Minneapolis, MN 55401; and


S. Paul Petrek, Johnson & Petrek, PO Box 210, Long Prairie, MN 56347-0210 (for appellant)




            Considered and decided by Anderson, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N


            In this appeal from his conviction of gross-misdemeanor DWI, appellant argues that he was denied his limited right to counsel before deciding whether to submit to testing because the police gave appellant the implied-consent advisory in the squad car, no telephone was available, and he was not offered the use of a telephone at the jail before taking an Intoxilyzer test.  Appellant also argues that his statements in the squad car should have been suppressed because he had not yet been given his Miranda rights.  Because it is undisputed that appellant advised the officer that he did not wish to consult counsel, the police were under no obligation to vindicate this right, and a Miranda warning was not required under the circumstances.  We affirm.  


            At approximately noon on May 12, 1999, State Trooper Ronald Buersken responded to a report of a car in the median on Interstate 94 in Todd County.  Appellant Michael Arend was standing near the vehicle and identified himself as the driver.  It appeared to Buersken that appellant’s vehicle had left the road, come back onto the road, and then went back into the median before hitting a sign.  During their conversation, Buersken smelled alcohol and noticed that appellant was “somewhat unstable,” had bloodshot eyes, and slurred speech.  Buersken placed appellant in the front seat of his squad car to continue the investigation and called a tow truck for appellant’s vehicle.  As they waited for the tow truck, Buersken asked appellant to take a preliminary breath test.  Appellant registered an alcohol content of .333.  Buersken then placed appellant under arrest and read him the implied-consent advisory.

            Buersken read the implied-consent form pursuant to Minn. Stat. § 169.123, subd. 2(a) (1998).[1]  Appellant acknowledged that he understood what had been explained to him.  Buersken then asked appellant, “[w]ould you like to consult with an attorney?”  Appellant declined. 

            Appellant was next asked if he would “supply a breath test or a blood test * * * for chemical testing,” and he responded, “Well certainly.”  Because appellant did not express a preference between a blood and a breath test, Buersken informed him that they would go to the Todd County Sheriff’s Office to perform a breath test.  Appellant did not object.  At the Todd County Sheriff’s Office, Buersken explained the breath test.  At this point appellant and Buersken had the following exchange:

Appellant:       Why don’t we take a blood test?


Buersken:       Well we do if you want one, but you indicated that you would take a breath test and that’s why we are here.


Appellant:       Okay how about a blood test.


Buersken:       Well we’ve already got this thing activated now so I guess that’s in order for me not to have to go back out of here.  I would have done that gladly at first but you indicated that it didn’t matter you would take a breath test.  


Appellant:       Well.


Buersken:       So I guess now I would just as soon * * * stick to this route, so I’m not wasting other people’s time * * * just go ahead and take a deep breath and like you blow up a balloon.  


Appellant:       Like this?


Appellant blew into the machine and registered at .30.  Buersken read appellant his Miranda rights.

Appellant later moved to suppress the results of the Intoxilyzer test, arguing that he was denied his right to counsel and prevented from taking an additional test.  Appellant also moved to suppress the statements he made in the squad car prior to being given his Miranda warning.  The district court denied appellant’s motions to suppress the breath test.  The court stated that appellant could not argue that his right to an attorney was not vindicated when he had “done nothing to express an interest in or even mere curiosity about contacting an attorney.”  In addition, the district court noted that appellant’s last-minute request for a blood test was “too late in the process to make that a viable option.”  Finally, the court denied the motion to suppress the statements made in the squad car because they had been made spontaneously and not in response to interrogation.

Appellant waived his right to a jury trial and submitted the case to the court on stipulated facts in accordance with the procedure set out in State v. Lothenbach, 296 N.W.2d 854, 858 (Minn. 1980).  The trial court found appellant guilty of driving under the influence within five years of a prior impaired-driving conviction and driving with an alcohol concentration of .20 or more as measured within two hours of driving.  See Minn. Stat. § 169.121, subd. 1(a), (f) (1998).  Appellant’s sentence was stayed pending this appeal.   



Appellant argues that his right to counsel under Minn. Stat. § 169.123, subd. 2(b)(4) (1998), was not vindicated because Buersken failed to assist him by providing a telephone or telephone directory prior to being required to submit to the Intoxilyzer test.

When the facts are not disputed, as in this case, this court makes a legal determination as to whether the defendant “was accorded a reasonable opportunity to consult with counsel based on the given facts.”  Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).

Under the Minnesota Constitution, drivers stopped for DWI have a limited 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.[2]  Minn. Stat. § 169.123, subd. 2(b)(4); 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)).  It is from “the totality of the facts” that we determine whether a driver’s limited right to counsel has been vindicated.  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.  Here, appellant fails to meet the threshold requirement of making a good-faith effort to reach an attorney.  When asked the implied-consent question, “Would you like to consult with an attorney,” appellant clearly responded, “No.”  There was nothing equivocal about his response.  He did not hesitate in his answer or, later, withdraw his initial waiver of the right to consult with an attorney.  Cf. State v. Slette, 585 N.W.2d 407, 409 (Minn. App. 1998) (recognizing the right of a defendant to change his mind after an initial waiver and be given a reasonable opportunity to contact counsel).

Appellant relies on Slette for the proposition that an initial waiver of the right to counsel will not preclude a finding that an individual’s right to consult with counsel was later violated by law enforcement.  In Slette, the defendant declined the right to counsel after being given the implied-consent advisory, but changed his mind and requested an attorney before submitting to testing.  Id. at 408.  This court reversed the district court, holding that, under the facts of the case, it was error to refuse to recognize a defendant’s right to change his mind about the right to counsel.  Id. at 410.  Once the defendant expresses an interest in consulting an attorney, the police are required either to vindicate the right or to clarify the request.  Id.  Like Slette, appellant waived his right to counsel after hearing the implied-consent advisory.  But unlike Slette, appellant never later requested, even ambiguously, a consultation with an attorney.  The police were not obligated to assist appellant in vindicating a right that he never invoked.   

Relying on Friedman, appellant argues that vindication of the right to counsel requires the defendant be given an opportunity to use a telephone.  473 N.W.2d at 835.  Appellant correctly states that Friedman held that once a defendant “is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel” his right to counsel is vindicated.  Id. (quotation omitted).  But in Friedman and its progeny, the issue was whether defendants who sought counsel were adequately assisted or if police thwarted their efforts to gain assistance of counsel.  See, e.g., McNaughton v. Commissioner of Pub. Safety, 536 N.W.2d 912, 915 (Minn. App. 1995) (holding that defendant’s right to counsel was not vindicated when after twice requesting an attorney, he was given a list of five pre-selected attorneys and not allowed direct access to a telephone, a telephone book, or directory assistance).  As the Friedman court said, “an individual has the right, upon request, to a reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing.”  473 N.W.2d at 835(emphasis added).  Here, appellant waived his limited right to counsel and never rescinded this waiver.  Because he failed to request the assistance of counsel, the police were under no obligation to provide a telephone or telephone book to appellant.    

Appellant also argues that his right to counsel was not vindicated because the offer of the right was given in the squad car where it was “entirely impossible to exercise that right.”  But in numerous cases, the implied-consent advisory is given in the squad car, a defendant requests an attorney, and a telephone is provided at the police station.  None of these cases deems providing a telephone at the police station a failure to vindicate a defendant’s right to counsel.  See, e.g., Kunz v. Commissioner of Pub. Safety, 349 N.W.2d 593, 594 (Minn. App. 1984) (finding that when defendant was advised of but declined to exercise his right to counsel in the squad car, the right to counsel was vindicated).            



            Appellant argues that his Miranda rights were violated when Buersken conversed with him in the squad car and failed to read the Miranda warning until after appellant submitted to the breath test.    

            Miranda v. Arizona * * * prohibits the admission in evidence of statements made by a suspect during “custodial interrogation” absent procedural safeguards to protect the suspect’s rights under the Fifth Amendment.


State v. Tibiatowski, 590 N.W.2d 305, 308 (Minn. 1999) (citation omitted).  When applying the custodial-interrogation standard, courts first determine whether the defendant was “in custody,” and then turn to the nature of the interrogation itself to determine whether the questioning was reasonably likely to elicit an incriminating response.  Id. at 309; State v. Edrozo, 578 N.W.2d 719, 724 (Minn. 1998).

            Determining whether the defendant was “in custody” involves considering all of the surrounding circumstances, including the officer’s and the defendant’s behavior throughout the interrogation.  State v. Wiernasz, 584 N.W.2d 1, 4-5 (Minn. 1998); State v. Miller, 573 N.W.2d 661, 670-71 (Minn. 1998).  This court must ask whether a reasonable person in appellant’s situation would have believed that he was in custody to the degree associated with formal arrest.  Miller, 573 N.W.2d at 670; State v. Champion, 533 N.W.2d 40, 43 (Minn. 1995).

Appellant’s mere presence in a squad car is not enough to put him in custody.  Cf. State v. Malik, 552 N.W.2d 730, 731 (Minn. 1996) (defendant held to be in custody after being searched, put in the back of a squad car, and not told he was free to go); State v. Voigt, 486 N.W.2d 793, 795-96 (Minn. App. 1992) (suspect was in custody for purposes of Miranda when officer told suspect in patrol car that he could not go until suspect gave a statement implicating himself), review denied (Minn. Aug. 4, 1992).  Buersken suspected that appellant was driving under the influence.  He placed appellant in the squad car because of the bad weather and to aid appellant in getting his car towed.  But the brief questioning of appellant in the squad car does not necessarily convert an ordinary traffic stop into a custodial interrogation.  State v. Herem, 384 N.W.2d 880, 883 (Minn. 1986). 

Nor does the officer’s subjective intent or his belief that defendant was driving under the influence and had committed other offenses of itself necessitate a Miranda warning.


Id; see State v. Clepper, 399 N.W.2d 574, 575 (Minn. App. 1987) (finding no Miranda warning necessary when police officer placed defendant in back of squad car to check his driver’s license and told defendant that he suspected he had been driving under the influence at the time of the accident based on the fact that appellant was the only person in the vehicle and based on appellant’s position inside the vehicle).  Because appellant was not in custody, there was no requirement that he be given the Miranda warning.

Even if we were to conclude that appellant was in custody, there was no interrogation.  The second part of the custodial interrogation test is whether the questioning was reasonably likely to elicit an incriminating response.  Here, we find the conversation between appellant and Buersken unlikely to elicit an incriminating statement.  Buersken never prompted appellant.  Rather, appellant volunteered any potentially incriminating information.[3]  A review of the transcript reveals that the conversation was informal and relaxed and covered topics as mundane as appellant’s dog, family members in the military, and back pain.  “[T]he concern behind the Miranda decision was the possibility that confessions would be coerced from a suspect.”  Tibiatowski, 590 N.W.2d at 308 (citation omitted).  Here, there is no evidence of coercion.  We conclude that this was not a custodial interrogation within the meaning of Miranda.


[1]  The implied-consent statute, Minn. Stat. § 169.123, subd. 2(a) (1998), provides in pertinent part:


[A] test may be required of a person when an officer has probable cause to believe the person was driving, operating, or in physical control of a motor vehicle in violation of section 169.121 and * * * the person has been involved in a motor vehicle accident or collision resulting in property damage * * * .


[2]  The recitation of the implied-consent advisory and testing are not a custodial interrogation and a driver does not possess the right to have counsel present during either of these procedures.  Cf. 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).

[3]  For example, Buersken noted how alcohol could have a greater effect on a lighter person than a larger person.  Appellant answered, “I’ve never been overweight or underweight.  I shouldn’t of been driving.”