This opinion will be unpublished and

may not be cited except as provided by

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

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-00-2159

 

 

Barry James Feltmann, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

 

Filed July 24, 2001

Affirmed

Parker, Judge*

 

 

Carver County District Court

File No. C7001077

 

 

Richard L. Swanson, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN 55318 (for appellant)

 

Mike Hatch, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

 

††††††††††† Considered and decided by Kalitowski, Presiding Judge, Harten, Judge, and Parker, Judge.

U N P U B L I S H E D†† O P I N I O N

 

PARKER, Judge

 

Barry James Feltmann appeals from the district courtís order sustaining his driverís license revocation arising out of a DWI arrest on June 12, 2000.† He argues that his limited right to counsel was not vindicated due to the arresting deputyís confusing statements regarding the availability of a public defender.† We affirm.

D E C I S I O N

 

The determination of whether an officer vindicated a driverís 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, this court makes a legal determination as to whether the driver ďwas accorded a reasonable opportunity to consult with counsel based on the given facts.Ē† Id.† The district courtís findings of fact will not be reversed unless they are clearly erroneous.† Thompson v. Commissioner of Pub. Safety, 567 N.W.2d 280, 281 (Minn. App. 1997), review denied (Minn. Sept. 25, 1997); see also Minn. R. Civ. P. 52.01.†

††††††††††† Pursuant to Minn. Const. art. I, ß 6, an individual has a limited right, upon request, to obtain legal advice before deciding whether to submit to chemical testing, provided the consultation does not unreasonably delay administration of the test.† Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).† A driver must be informed of this right, and a police officer must assist in its vindication.† Id.† There is no question that, subsequent to Feltmannís arrest, Deputy Patrick John Callahan read Feltmann the motor vehicle implied consent advisory in its entirety.† In response to the question of whether Feltmann wished to consult with an attorney, Feltmann responded ďYes,Ē and his answer was noted on the advisory consent form.† At some point, Deputy Callahan informed Feltmann that an attorney would be made available to him prior to any questioning if he wished.††

A police officer may vindicate a driverís limited right to counsel by providing a telephone and a reasonable amount of time to contact and speak with an attorney.† Prideaux v. State, Depít of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976).† The relevant inquiry as to whether a driverís right to counsel has been vindicated focuses

both on the police officerís duties in vindicating the right to counsel and the defendantís diligent exercise of the right.† Within this context * * * 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.† Other factors considered include the time of day the driver tried to contact an attorney and the length of time the driver has been under arrest.† Id. (ďthe length of time the driver has been under arrest is important because the longer he is under arrest the less probative value the chemical test may ultimately haveĒ).

††††††††††† The evidence before the district court indicates that Feltmann did not make a good-faith effort to obtain counsel.† Feltmann was provided with a telephone and phone books, and asked if he wanted to call an attorney.† After requesting a public defender and being told that one was not available at that time (approximately 2:30 a.m.), he declined to call for another attorney.† We have held under similar circumstances that the driverís limited right to counsel was vindicated.† For example, in Gergen v. Commissioner of Pub. Safety, 548 N.W.2d 307, 310 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996), this court held that the limited right to counsel was vindicated based on the district courtís finding that there was no good-faith effort when the driver refused to contact his attorneyís local office, and refused to use long distance when the police phone did not accept toll-free numbers.† In Eveslage v. Commissioner of Pub. Safety, 353 N.W.2d 623, 625, 627 (Minn. App. 1984), this court held that a driverís right to counsel was vindicated when he made two unsuccessful attempts to reach a specific attorney, noting that if the driver is unable to reach a specific attorney, and does not wish to call another, he may be required to make a decision regarding testing on his own.† In this case, Feltmann wanted to speak to a public defender but none was available, so he had a duty to try to contact other counsel or make a decision regarding testing on his own.

Feltmann argues that Deputy Callahanís statements regarding the availability of a public defender confused him. After Feltmann requested a public defender, Deputy Callahan told him that a public defender was not available at the time, and therefore, Feltmann would have to try to contact another attorney or make a decision.† An officer does not violate due process merely by providing confusing information to a driver regarding testing.† See McDonnell v. Commissioner of Pub. Safety, 473 N.W.2d 848, 854 (Minn. 1991) (police had no duty to clear up driverís confusion as to testing requirements).† Instead, the police officerís statements must rise to the level of actively misleading.† Id.† Further, inaccurate information, in and of itself, does not warrant reversal of the district court.† Fehler v. Commissioner of Pub. Safety, 591 N.W.2d 752, 754 (Minn. App. 1999) (review denied (Minn. July 28, 1999).[1]† There is no indication from the record that Deputy Callahanís statements regarding the availability of a public defender were either actively misleading or inaccurate.† Moreover, Feltmann does not indicate how his confusion prevented him from calling for an attorney.†

In fact, there is not even evidence in the record that Feltmann was confused on the night of testing.† The only evidence of confusion is Deputy Callahanís testimony during cross-examination that his report was ďa little confusingĒ when he stated that counsel would be made available prior to questioning.† The trial court inferred from this testimony that Callahan was referring to his written police report as being confusing, and that Callahan was really referring to a Miranda warning in the report.† The record indicates that this finding was justified.

In addition, respondent was under no duty to provide a tape of the conversation between Deputy Callahan and Feltmann for the implied consent hearing, and the testimony was adequate to support the courtís findings without the tape.† See Umphlett v. Commissioner of Pub. Safety, 533 N.W.2d 636, 639-40 (Minn. App. 1995) (reading of the implied consent advisory not required to be recorded), review denied (Minn. Aug. 30, 1995).† Based on the facts of the instant case, the district court properly concluded that Feltmannís limited right to contact an attorney was vindicated.

††††††††††† Affirmed.

 

 



*† Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, ß 10.

 

[1]† Although McDonnell and Fehler deal with the issue of whether a defendant has a right to refuse testing based on confusing or misleading statements made by the arresting officer, we apply the same due-process analysis to the issue of whether a police officerís confusing statements interfere with vindication of the defendantís limited right to counsel.