This opinion will be unpublished and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

C1-01-1186

 

 

Delray Todd Goddard,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

 

Filed ≠≠≠January 8, 2002

Affirmed

Harten, Judge

 

Dakota County District Court

File No. C8-01-006927

 

 

Brent Schafer, Gerald Miller & Associates, P.A., 210 North Second Street, Suite 101, Minneapolis, MN 55401 (for appellant)

 

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

 

††††††††††† Considered and decided by Harten, Presiding Judge, Randall, Judge, and Halbrooks, Judge.

U N P U B L I S H E D†† O P I N I O N

HARTEN, Judge

Appellant contests the district courtís order sustaining revocation of his driverís license under Minnesotaís implied consent law, claiming that police violated his limited right to counsel.† Because we find no violation, we affirm.

F A C T S

††††††††††† At approximately 1:00 a.m. on March 5, 2001, Rosemount Police Officer Beth Richtsmeier stopped and arrested appellant Delray Todd Goddard for driving while under the influence (DWI) and brought him to the Rosemount Police Department.†

Appellant said that he wished to speak with an attorney before submitting to a chemical test for intoxication.† At 1:41 a.m., Richtsmeier provided appellant with a telephone and telephone books.† Appellant wished to speak with a specific attorney; he called that attorney three times, leaving messages with a call back number.† Between phone calls, he waited for a response.†† Being unable to reach the attorney, he then left a message with a lawyer answering service and waited about ten minutes for a return call that never came.† The police encouraged appellant to contact additional attorneys.†††

††††††††††† At 2:20 a.m., Richtsmeierís sergeant advised her that the department was short staffed and that she was needed to patrol the streets.† Richtsmeier then entered the interview room and urged appellant to contact a different attorney, dialed an attorneyís number, and left a voice mail message with a call back number.† After Richtsmeier placed the call, she and appellant waited for a return phone call.† Richtsmeier testified that she informed appellant that he did not have to keep the line open because the department had multiple telephone lines.†

††††††††††† At 2:48 a.m., a police sergeant entered the interview room.† Appellant testified that he had called another attorney and that the phone was ringing when the sergeant removed it from his hand.† Richtsmeier, who had been standing in the doorway, entered the room and asked appellant to take a breath test.† He stated he would not do so without an attorney, thereby refusing the test.

Respondent Commissioner of Public Safety issued a notice and order for revocation of appellantís driverís license.† Appellant petitioned for review of the revocation, arguing that he was denied his right to counsel.† The district court sustained the revocation, finding that appellantís right to counsel had been vindicated.† This appeal followed.†

D E C I S I O N

††††††††††† A person arrested for DWI has, upon request, a limited right to counsel before deciding whether to submit to chemical testing, provided that right does not interfere with proper administration of the test.† Friedman v. Commír of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).† The question of whether this right was vindicated is a mixed question of law and fact.† Parsons v. Commír of Pub. Safety, 488 N.W.2d 500, 501 (Minn. App. 1992) (citation omitted).† The chronology of events is a question of fact.† Id.†† The significance of those facts is reviewed de novo.†† Id.

Whether a driverís right to counsel has been vindicated is determined by the totality of the circumstances.† Groe v. Commír of Pub. Safety, 615 N.W.2d 837, 841 (Minn. App. 2000) (citation omitted), review denied (Minn. Sept. 13, 2000).† The ďrelevant inquiry focuses both on the police officerís duties in vindicating the right * * * and the defendantís diligent exercise of the right.Ē† Gergen v. Commír of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996) (quotation omitted), review denied (Minn. Aug. 6, 1996).† As a threshold matter, the driver must make a good faith effort to contact an attorney.† Id.† This factual determination by the district court will be upheld if it is not clearly erroneous.† Id.†† While there is no definitive set of factors for determining what constitutes a reasonable amount of time, courts have considered the time of day and the length of time the driver was under arrest.† See, e.g., Kuhn v. Commír of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Oct. 20, 1992).

The district court found that appellantís right to counsel had been vindicated, noting that appellant ďchose to spend his time waiting for particular lawyers.Ē† Appellant argues that he made a good faith effort to contact an attorney.††

It is undisputed that appellant spent a considerable amount of time attempting to contact one particular attorney, despite being encouraged by Richtsmeier and others to contact additional attorneys.† Richtsmeier also informed appellant that the police department had several lines and he did not need to keep the line open while awaiting a call.† After 39 minutes, Richtsmeier emphasized to appellant that he should attempt to call other attorneys.† Even after this suggestion, appellant attempted to contact only two more attorneys and continued to await return calls.

We have held that a good faith effort requires more than placing phone calls to specific attorneys and waiting for return calls.† See Linde v. Commír of Pub. Safety, 586 N.W.2d 807, 810 (Minn. App. 1998) (driver did not make a good faith effort when he did not contact other attorneys after being unable to reach a specific attorney), review denied (Feb. 18, 1999); Palme v. Commír of Pub. Safety, 541 N.W.2d 340, 345 (Minn. App. 1995) (ď[a] driver cannot be permitted to wait indefinitely for a call that may never comeĒ), review denied (Feb. 27, 1996).† The district courtís factual finding that appellant did not make a good faith effort to contact an attorney, but chose to spend his time waiting for particular attorneys is not clearly erroneous.††

††††††††††† We also must consider the officersí efforts to vindicate appellantís right to counsel. See Gergen, 548 N.W.2d at 310.† Police vindicate a driverís right to counsel by providing a telephone and giving the driver a reasonable amount of time to contact an attorney.† Prideaux v. State, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976).† Richtsmeier provided appellant with a phone and a stack of phone books.† Richtsmeier also encouraged appellant to phone other attorneys and helped him dial the phone.† See Gergen, 548 N.W.2d at 310 (right to counsel vindicated when officer provided a phone and directory and assisted in dialing).

By its very nature, the blood-alcohol evidence sought by police dissipates over time.† Id.† Appellant was in custody for more than one hour and 45 minutes, long enough to warrant police concern for the dissipation of evidence.† Another important factor was that the department was short staffed that evening and Richtsmeier was away from her patrol duties.† Courts may consider legitimate factors when determining what is a reasonable amount of time.† Id.† Appellant argues that this case is similar to the facts in Duff v. Commír of Pub. Safety, 560 N.W.2d 735 (Minn. App. 1997), in which this court found that the defendantís right to counsel was not vindicated where a police officer removed the phone while the defendant was talking to an attorney.† Id. at 738.† But the instant case can be distinguished from Duff.† The district court in Duff did not find that the driver spent his time waiting to contact particular attorneys.† Additionally, in Duff, the driver was having a conversation with an attorney.† Id. at 737.† Here, the phone was only ringing.† Finally, in Duff, the driver was cut off after 39 minutes, id.; here, appellant was given 67 minutes.†

Police should be cautious about removing a phone from a DWI suspectís hand; this act can only strengthen the driverís case.† At oral argument, the attorney for the commissioner conceded that even with the 67 minutes afforded appellant, had appellant been engaged in an actual conversation with an attorney when the officer grabbed the phone and disconnected the call, the outcome could easily have been a sustainable finding of no vindication.† But, the record shows that appellant was only engaged in attempting to make yet one more call and neither an attorney nor an answering service had yet picked up the other end when appellantís call was terminated.

††††††††††† The police gave appellant 67 minutes to contact an attorney.† Even though it was early morning, a difficult time to reach an attorney, appellant was given an adequate amount of time.† Parsons, 488 N.W.2d at 501-02 (right to counsel vindicated when driver had access to a phone for 40 minutes in the early morning hours).† Considering the totality of the circumstances, we conclude that appellantís right to counsel was vindicated.

††††††††††† Affirmed.†