This opinion will be unpublished and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

C7-01-530

 

 

Luann Faye Runkle,

petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

 

Filed September 11, 2001

Affirmed

G. Barry Anderson, Judge

 

Carver County District Court

File No. C4001215

 

 

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

 

Mike Hatch, Minnesota Attorney General, Lisa M. Dahlquist, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge, Amundson, Judge and G. Barry Anderson, Judge.

U N P U B L I S H E D  O P I N I O N

G. BARRY ANDERSON, Judge

            Appellant challenges the district court’s order sustaining the revocation of her driving privileges.  Because we conclude that the arresting officer’s actions vindicated appellant’s limited right to consult an attorney before deciding to submit to chemical testing, we affirm.

FACTS

            The parties submitted the case to the district court on stipulated facts.  On June 28, 2000, just after midnight, Carver County Deputy Kyle Perlich arrested appellant for driving under the influence of alcohol and read her the Minnesota Implied Consent Advisory form at the Carver County Jail.  When asked if she wished to consult an attorney, appellant initially replied, “I don’t know * * * .”  Perlich pointed out the telephone books, and told appellant, “You can look one up if you wish, and contact an attorney, if that is what you wish to do * * * .” 

Appellant stated that she did not understand what was happening.  Perlich explained, “Well, right now * * * I am reading you the Implied Consent Advisory.  What that does is, if you wish to consult an attorney, you can do so.  If you don’t wish to consult with an attorney, the next thing I will ask you is if you wish to take a breath test.”  Appellant stated that she did not know an attorney and told Perlich she would probably just speak to her husband.  Perlich asked appellant several more times whether she wanted to contact an attorney and again gave her the opportunity to use the telephone books and contact an attorney.   

Appellant repeatedly asked Perlich what to do.  Perlich explained that he could not give her advice but would let her call an attorney if she wanted to.  Appellant stated, “Not at this time.  Is that an okay answer?”  Perlich said, “You are saying no, you don’t wish to consult with an attorney?”  Appellant affirmed, “At this time,” and asked what would happen if she refused to take the breath test.  Perlich explained that refusing to take the test constituted a misdemeanor.

            Perlich asked appellant if she would take the breath test.  Appellant continued to  answer his questions with her own questions concerning what would happen to her after the paperwork was done, why she was stopped, and what the preliminary breath test results were.  Perlich again told appellant she could use the phone to call an attorney and ask him those questions, and that “if you say yes, we make the phone available to you.” 

            After another unproductive exchange, Perlich told appellant that she must make the decision to contact an attorney on her own.  Approximately twenty minutes after being read the advisory, appellant asked, and was granted permission, to call her husband.  During the call, Perlich warned appellant, several times, that her time was nearly up, but nevertheless told her that he would grant her additional time after the call to contact an attorney if she wished.  Appellant said that she and her husband would contact an attorney, but the next day.  After explaining to her husband where he could pick her up, appellant ended the call and agreed to take the breath test.  At least 40 minutes had elapsed since Perlich read appellant the implied-consent advisory. 

Appellant’s test results confirmed intoxication above the legal limit and the Commissioner of Public Safety revoked her driving privileges.  Appellant sought district court review.  The district court found that appellant (1) did not make active efforts to reach an attorney, but seemed more preoccupied with getting a ride home; (2) “did not make a sincere, good-faith effort to reach counsel”; and (3) was given ample time to reach an attorney and that it was her own conduct and indecisiveness that resulted in her failure to reach counsel.  The district court concluded that appellant waived her right to counsel and sustained the revocation of her driving privileges.  This appeal follows.

D E C I S I O N

Appellant contends that she was not given a reasonable opportunity to consult with an attorney.  Because the facts are not disputed, the question whether appellant was afforded a reasonable opportunity to consult with counsel is a legal determination.  Kuhn v. Commissioner of Pub. Safety,488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). 

            Before deciding whether to submit to chemical testing, a driver has a “limited right to counsel.”  Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 837 (Minn. 1991).  Police officers “must assist” in the vindication of the right to counsel.  Prideaux v. State, Dep’t of Pub. Safety,310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976).  An officer must allow the driver, on request, to consult with an attorney of her own choosing.  Id.  The right is vindicated “if the person is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.”  Friedman,473 N.W.2d at 835. But the right is restricted “to the extent that it cannot unreasonably delay administration of the test.”  Minn. Stat. § 169A.51, subd. 2(4) (2000). 

We believe that appellant, given at least 40 minutes to contact an attorney, failed to do so within a reasonable time.  Reviewing courts have generally found rights vindicated where the officer provides the driver with at least 30 minutes to contact counsel.  See, e.g., Linde v. Commissioner of Pub. Safety,586 N.W.2d 807,810-11 (Minn. App. 1998) (holding right vindicated where driver had “effective use of a telephone, a telephone directory, and directory assistance for more than 30 minutes”), review denied (Minn. Feb. 18, 1999); Gergen v. Commissioner of Pub. Safety,548 N.W.2d 307, 310-12 (Minn. App. 1996) (right vindicated where, for 36 minutes, officer assisted driver by repeating parts of the implied consent advisory and explaining rights), review denied (Minn. Aug. 6, 1996).

In addition, appellant waived her right to contact an attorney by failing to clearly articulate her desire to invoke the right within the time granted.  Appellant repeatedly avoided Perlich’s questions concerning whether she wished to invoke the right by changing the subject, equivocating, or responding to questions with questions.  See State v. Von Bank,341 N.W.2d 894, 895-96 (Minn. App. 1984) (holding driver must articulate the desire to invoke the right; a response of “don’t know” to the question whether the driver wanted to contact an attorney constitutes waiver of the right to counsel). 

Appellant also argues that the district court erred by finding that she failed to make a good-faith and sincere effort to contact counsel.  Whether a driver made a good-faith effort is a fact inquiry subject to a clearly erroneous standard of review.  Gergen, 548 N.W.2d at 309.  We conclude that there is no clear error.  Appellant spent at least 20 minutes trying to make a decision, and ultimately elected to telephone her husband instead of an attorney.  After calling her husband, appellant showed no interest in contacting counsel even though Perlich gave her yet another opportunity to make a call.  This court has held that a driver who makes a single unsuccessful call to an attorney and makes no further effort but instead tries to arrange a ride home has not made a good-faith effort to exercise the right.  Id. at 310.

We conclude that appellant’s right to consult with an attorney was clearly and unequivocally vindicated before she decided to submit to chemical testing.

              Affirmed.