This opinion will be unpublished and

may not be cited except as provided by

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






Douglas E. Nepp,






Commissioner of Public Safety,



Filed July 2, 2002

Affirmed; motion to strike denied
Foley, Judge


Washington County District Court

File No. C001005452



Rebecca Rhoda Fisher, Ramsay & Devore, P.A., Suite 111, 2151 Hamline Avenue No., Roseville, MN  55113 (for appellant)


Mike Hatch, Attorney General, Joel A. Watne, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103 (for respondent)


            Considered and decided by Kalitowski, Presiding Judge, Parker, Judge,* and Foley, Judge.

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Douglas Elroy Nepp appeals from the district court’s decision sustaining the revocation of his driving privileges.  He argues that the district court erred in determining that his right to counsel was vindicated when the arresting officer gave him only 31 minutes to contact an attorney and cut him off after he spoke with the attorney for only four minutes.  Because the district court did not err in determining that the officer gave appellant a reasonable amount of time to contact an attorney, we affirm.


            On September 16, 2001, at approximately 2:10 a.m., Police Captain Jay Terrell Swanson stopped appellant’s vehicle for speeding in the City of Stillwater.  Based on Swanson’s observations of appellant’s physical condition and a preliminary breath test reading of .15, Swanson arrested appellant for third-degree driving while impaired (DWI).  Swanson transported appellant to the Washington County jail.

            Swanson read appellant the implied consent advisory at 2:54 a.m.  Appellant requested that he be allowed to contact an attorney.  Appellant, who is an attorney himself, practices primarily in the areas of personal injury and workers’ compensation, but has represented two or three DWI defendants.

            Swanson gave appellant a telephone book and access to a telephone.  Appellant began looking for the names of specific attorneys who he knew practiced criminal defense.  Appellant spent the first five minutes paging through the yellow pages, occasionally attempting to dial out.

            Appellant asked Swanson to help him dial his home phone number.  He spoke to his brother-in-law and asked him to bring a container to the jail so that he could take an additional test; he then spoke to his wife and asked her to call attorney Chuck Ramsay.

            Appellant continued to page through the yellow pages and occasionally dial out, but he did not complain about the phone or indicate to Swanson that he was having trouble with the phone until almost 15 minutes had passed.  Appellant then asked Swanson if he could use another telephone.  Swanson led appellant to another telephone and told him that he had already used up 15 minutes and would only receive another 15 minutes in which to speak with an attorney.

            Appellant testified that he then began calling attorneys who advertised 24-hour service.  Twenty-three minutes after Swanson had first given appellant access to a telephone, the first telephone that appellant had been using rang.  Swanson answered it and twice told appellant that an attorney was on the phone for him.

            Appellant ignored Swanson and continued to talk to someone on the other phone who was giving him Ramsay’s home phone number.  Swanson testified that when appellant refused to take the call from the attorney, he assumed that appellant was merely trying to stall the process.  At that point, Swanson told appellant that he had four more minutes before he would have to give up the phone and make a decision regarding testing.

              Ramsay, who had called in on the first phone, had an incoming call on his call waiting.  His caller identification indicated that the incoming call was from the Washington County Jail, so Ramsay assumed it was appellant and took the call.

            After four minutes, Swanson told appellant that his time was up and that he needed to get off the phone.  Appellant told Swanson that he was speaking with an attorney and requested additional time, but Swanson denied his request.  Appellant acknowledged that Ramsay was able to give him advice regarding testing before their conversation ended.


            Whether a driver’s limited right to counsel has been vindicated is determined by the totality of the circumstances.  Groe v. Comm’r of Pub. Safety, 615 N.W.2d 837, 841 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000).  The question of whether this right was vindicated is a mixed question of law and fact.  Parsons v. Comm’r of Pub. Safety, 488 N.W.2d 500, 501 (Minn. App. 1992).  The chronology of events is a question of fact, which we will not reverse unless clearly erroneous,[1] while the significance of those facts is reviewed de novo.  Id.  The “relevant inquiry focuses both on the police officer’s duties in vindicating the right * * * and the defendant’s diligent exercise of the right.”  Gergen v. Comm’r of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996) (quotation omitted), review denied (Minn. Aug. 6, 1996).

            As a threshold matter, a driver must make a good-faith and sincere effort to reach an attorney.  Id.  A good-faith effort requires more than placing calls to particular attorneys.  See Linde v. Comm’r of Pub. Safety, 586 N.W.2d 807, 810 (Minn. App. 1998) (driver must make diligent effort to contact attorney), review denied (Minn. Feb. 18, 1999). 

            Here, Swanson testified that appellant spent the first 15 minutes of his time flipping through the yellow pages making no attempts to call; that appellant was looking at the small print in the yellow pages, rather than the larger ads containing numbers for answering services; that Swanson pointed out the larger ads; and that when an attorney called appellant back, he refused to take the call.  In Swanson’s opinion, appellant “completely wasted at least half of the 30-minute period” and was “trying to stall the process.”

            While appellant now claims that he had trouble with the phone, Swanson was never asked during the hearing if he or appellant had trouble with the phone.  The videotape merely shows appellant occasionally dialing as he paged through the phone book.  Appellant did not seek Swanson’s assistance until five minutes passed, and, although the audio on the tape is of poor quality, appellant did not complain about the phone and did not ask to use another phone until almost half of his 31 minutes passed.

            Finally, when a call from an attorney came in on the first phone, appellant ignored Swanson’s repeated attempts to get him to come to take the call, choosing to continue in his quest to reach a particular attorney.  Given these facts, the district court did not clearly err in implicitly finding that appellant did not make a diligent and good-faith effort.  See Umphlett v. Comm’r of Pub. Safety, 533 N.W.2d 636, 639 (Minn. App. 1995) (finding as to whether appellant acted diligently or in good-faith may be implied from court’s ultimate decision), review denied  (Minn. Aug. 30, 1995).

            The next inquiry involves whether Swanson fulfilled his duty to assist appellant in vindicating his right to an attorney.  An officer need only provide a driver with a telephone and a reasonable time in which to contact an attorney.  Comm’r of Pub. Safety v. Campbell, 494 N.W.2d 268, 269-70 (Minn. 1992).  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 defendant was under arrest.  Kuhn v. Comm’r of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).

            Here, appellant was stopped at approximately 2:10 a.m. and given access to a telephone at 2:54 a.m.  Swanson ended appellant’s phone conversation approximately 31 minutes later, after appellant ignored Swanson’s repeated efforts to get him to accept an incoming call from an attorney and after Swanson warned appellant that he had four minutes to complete his call and make a decision.  Appellant was able to obtain advice from Ramsay regarding testing.  Under these circumstances, the district court did not err in determining that Swanson fulfilled his obligation to assist appellant because appellant was given a reasonable amount of time to have a meaningful conversation with an attorney.

            Appellant insists that the facts of this case are similar to those in Duff v. Comm’r of Pub. Safety, 560 N.W.2d 735, 737-38 (Minn. App. 1997).  We disagree.  In Duff, the officer left the driver alone and, upon the officer’s return to the room, abruptly terminated the driver’s call.  Under those circumstances, this court concluded that the driver’s limited right to counsel was not vindicated because the officer terminated the call without warning and without knowing with whom the driver was speaking or how long the conversation had lasted.  Here, Swanson remained with appellant at all times, and, based on his observations of appellant’s behavior, concluded that appellant was stalling and wasting time.  These facts distinguish this case from Duff and compel a different conclusion.

            Finally, appellant filed a motion to strike certain portions of respondent’s brief.  Appellant does not seek to strike evidence that was not part of the district court record.  Rather, appellant seeks to strike certain statements in which respondent makes factual allegations or general inferences.  While appellant may disagree with these allegations and inferences, most are based on testimony and documents in the record or on documents of which this court may take judicial notice.  See State v. Duncan, 608 N.W.2d 551, 559 (Minn. App. 2000) (denying motion to strike when it seeks to strike arguments or inferences with which other party disagrees), review denied (Minn. May 16, 2000).  In any event, because none of the challenged statements is critical to our decision here, we deny appellant’s motion to strike.  See Clark v. Clark, 642 N.W.2d 459, 467 (Minn. App. 2002) (denying motions to strike as referring to information in record or as unnecessary to resolution of appeal).

            We therefore affirm the district court’s decision sustaining revocation of appellant’s driving privileges.

            Affirmed; motion to strike denied.


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

[1] Appellant challenges one of the district court’s findings of fact as clearly erroneous because the evidence shows that appellant completed a call to his home in the first 15 minutes, spoke to his brother-in-law, and asked him to bring a container to the jail for an additional test, which is contrary to the court’s finding that appellant “spent approximately fifteen (15) minutes paging through the attorney listing before making his first phone call” and that during the next 15 minutes appellant “called a non-attorney in an attempt to arrange an additional test.”  Even if we consider this finding unsupported by the evidence or clearly erroneous, we do not believe it provides a basis to reverse the district court’s ultimate determination.  See Minn. R. Civ. P. 61 (setting out harmless error rule); Rosendahl v. Nelson, 408 N.W.2d 609, 612 (Minn. App. 1987) (explaining if error occurs with respect to factual finding that does not affect result of case, error is harmless and immaterial to decision on appeal), review denied (Minn. Sept. 18, 1987).