This opinion will be unpublished and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

CX-01-1333

 

 

John Michael Ristow, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed February 19, 2002

Affirmed

Robert H. Schumacher, Judge

 

Dakota County District Court

File No. C3017175

 

 

Jonathan E. Fruchtman, 1422 West Lake Street, Suite 320, Minneapolis, MN 55408 (for appellant)

 

Mike Hatch, Attorney General, Darren L. Dejong, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

 

Considered and decided by Schumacher, Presiding Judge, Hanson, Judge, and Foley, Judge.*

 

U N P U B L I S H E D O P I N I O N

ROBERT H. SCHUMACHER, Judge

Appellant John Michael Ristow challenges the district court's order sustaining the revocation of his driver's license under Minnesota's implied consent law. Ristow contends that the officer's use of the booking telephone may have prevented attorneys from returning his telephone calls and therefore violated his right to counsel. We affirm.

FACTS

On Friday, March 23, 2001, Farmington Police Officer Gary Deutschle stopped Ristow, arrested him for driving while under the influence of alcohol, and transported him to the Farmington Police Department. At 10:47 p.m., Deutschle read the implied consent advisory form to Ristow, who indicated that he wanted to consult with an attorney. Deutschle then provided Ristow with a telephone in the booking area and four telephone directories. Ristow made five telephone calls in the following hour; he called information once and left messages twice for two different attorneys. Deutschle instructed Ristow to give the number of the booking telephone he was using when he left messages for the attorneys to return his calls.

Ristow indicated to Deutschle that he wanted to call his dad. Deutschle testified that he informed Ristow "it was best to leave the phone open to get an incoming call from his attorney." When Ristow informed Deutschle that he was in pain due to kidney stones and a blocked urinary tract, Deutschle made "a phone call to summon medical attention, Farmington rescue squad and ALF ambulance service." Deutschle testified on direct examination that if the booking telephone had been in use and a call came in for Ristow, that the call "would roll over to another phone either in the police department or back to [the] dispatch center," and that "another officer would have answered it, or if it went to dispatch they would inform me they have an incoming call." Deutschle testified that Ristow did not receive any return calls from an attorney. On cross-examination, Deutschle agreed that he was not an expert on the telephone system at the Farmington Police Department and testified that he had never had the occasion to call the telephone in the booking area and personally experience the telephone rolling over to someone else. During the hour Ristow was given access to the booking telephone, Deutschle used the telephone for less than two minutes.

At 11:38 p.m., Ristow made a second call to an attorney, spoke to the answering service, and informed Deutschle that an attorney would call back in five to ten minutes. Deutschle waited ten minutes; no return call came. At 11:48 p.m., Deutschle informed Ristow that he needed to make a decision on his own. After paramedics evaluated his condition, Ristow agreed to submit to a breath test. Deutschle administered the breath test to Ristow, which reported a blood alcohol content of .12.

Respondent Commissioner of Public Safety revoked Ristow's driver's license for driving his motor vehicle with a blood alcohol concentration in excess of .10, pursuant to Minn. Stat. 169A.52 (2000). Ristow petitioned for judicial review and the matter was heard before the district court. By an order filed June 13, 2001, the district court found that Ristow's right to counsel had been vindicated and sustained the revocation of his driving privileges. This appeal followed.

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. Comm'r of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). We will not reverse the district court's findings of fact unless they are clearly erroneous. Thompson v. Comm'r of Pub. Safety, 567 N.W.2d 280, 281 (Minn. App. 1997), review denied (Minn. Sept. 25, 1997); Minn. R. Civ. P. 52.01. Once the facts are established, 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, 488 N.W.2d at 840.

Under Minnesota's implied consent statute, any person who drives a motor vehicle consents "to a chemical test of that person's blood, breath, or urine for the purpose of determining the presence of alcohol * * * ." Minn. Stat. 169A.51, subd. 1(a) (2000). A person arrested for driving while intoxicated has a limited "right, upon request, to a reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing," provided the consultation with an attorney "does not unreasonably delay the administration of the test." Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991) (quotation omitted). "Because of the 'evanescent nature' of the evidence in DWI cases, the accused is accorded a limited amount of time to contact an attorney." Kuhn, 488 N.W.2d at 840 (quoting Friedman, 473 N.W.2d at 835).

The right to counsel will be considered vindicated if the person is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel. If counsel cannot be contacted within a reasonable time, the person may be required to make a decision regarding testing in the absence of counsel.

 

Friedman, 473 N.W.2d at 835 (quoting Prideaux v. State, Dep't of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976)). "There is no definitive rule on what constitutes a reasonable amount of time." Gergen v. Comm'r of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996) (citing Kuhn, 488 N.W.2d at 842), review denied (Minn. Aug. 6, 1996).

Ristow contends that his right to counsel was violated because Deutschle's use of the booking telephone may have prevented an attorney from returning his call. In the memorandum of law accompanying its June 13, 2001, order, the district court found Ristow's argument to be "entirely speculative." The district court particularly emphasized that Ristow "offered absolutely no evidence that any of the attorneys he attempted to contact did in fact call back and receive a busy signal."

Ristow cites Duff v. Comm'r of Pub. Safety, 560 N.W.2d 735 (Minn. App. 1997), and McNaughton v. Comm'r of Pub. Safety, 536 N.W.2d 912 (Minn. App. 1995), in support of his argument. Ristow's reliance on these two cases is misplaced. In Duff, we held that the driver was not given reasonable time to consult with an attorney where the officer terminated his telephone conversation with an attorney without knowing who the driver was speaking to or how long the conversation had lasted. 560 N.W.2d at 737. In McNaughton, we held that the driver's limited right to counsel was not vindicated where the officer provided the driver with a list of five pre-selected attorneys, but the driver did not have access to a telephone directory; was not allowed to personally dial the telephone to contact directory assistance; and ultimately spoke with one of the pre-selected attorneys who refused to represent or advise him. 536 N.W.2d at 915. None of those factors exist in this case.

Ristow also cites for support cases where we have held that unreasonably limiting the time to contact an attorney violates the right to counsel, including Mulvaney v. Comm'r of Pub. Safety, 509 N.W.2d 179, 182 (Minn. App. 1993) (six minutes held to be insufficient), and Kuhn, 488 N.W.2d at 842 (24 minutes held to be insufficient). Here, Ristow was given access to a telephone and four telephone directories for an hour.

Review of the videotape shows that Deutschle used the booking telephone only twice; the first call lasted approximately one-and-a-half minutes and the second call lasted approximately 17 seconds. Deutschle's brief use of the booking telephone did not violate Ristow's right to counsel. Ristow was accorded a reasonable opportunity to consult with counsel before deciding to submit to chemical testing, and we conclude that his limited right to counsel was vindicated.

Affirmed.



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