This opinion will be unpublished and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

C1-01-1365

 

Mark Gerald Williams, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

 

Filed September 24, 2002

Affirmed

Stoneburner, Judge

 

Chisago County District Court

File No. CX01000509

 

Jeffrey S. Sheridan, Strandemo & Sheridan, P.A., 320 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, MN 55121 (for appellant)

 

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

 

            Considered and decided by Stoneburner, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.*

U N P U B L I S H E D  O P I N I O N

STONEBURNER, Judge

 

Appellant Mark Gerald Williams appeals from the district court’s order sustaining revocation of his driving privileges.  Williams argues that the district court erred in concluding that his limited right to counsel was vindicated because the officer failed to retrieve a card with the name and telephone number of an attorney from Williams’s impounded vehicle’s glovebox.  Because Williams was given a telephone, telephone directories, and sufficient time to contact an attorney and because he spoke with an attorney before submitting to a test, we affirm.

FACTS

 

Officer Richard Sapp, a licensed peace officer in North Branch, arrested appellant Mark Gerald Williams for driving while under the influence of alcohol.  Officer Sapp arranged to have Williams’s car towed and transported Williams to the Chisago County jail.  Officer Sapp read the Minnesota Implied Consent Advisory to Williams and asked if Williams wanted to speak with an attorney.  Williams expressed doubt that anyone would be available.  The officer told him that there are plenty of 24-hour numbers and that telephone books would be made available.  Officer Sapp asked Williams if he had his attorney’s number handy.  Williams replied that he had it in his truck but did not remember the attorney’s name.  The officer again offered telephone books and asked if Williams wanted to contact an attorney.  After expressing some doubt, Williams said, “Yeah. I’ll contact one.”

            Williams was given telephone books and was told he could call someone else to get an attorney’s telephone number.  He was also shown the “call back” number so an attorney could return his call.  After one call with no answer, Williams said, “Call that tow truck driver.  Tell him to go in my glovebox and get the number out of there.”  The officer asked Williams if he knew the name of the attorney’s law firm, and Williams said all he knew was that he was his friend’s attorney and said he was “the only one that I would want to call.”  The officer suggested that Williams call his friend for the information.  Williams asked,  “So, you gonna get the number out of my truck or what?”  The officer said:

No, it’s already locked up and impounded.  We don’t have access to it. * * * It would take too long. By the time we get the tow company and all that.

 

Williams’s wallet was returned to him so that he could look for the number of his friend.  Williams called but was unable to reach his friend.  Williams was informed that it would not cost him anything to talk to an attorney.  Williams replied:

Is that how it works? * * * Then maybe I’ll call somebody.  I figured it’d cost ya a million dollars to talk to ‘em.

 

Williams made some more calls and finally reached an attorney.  He spoke briefly to the attorney and agreed to take the breath test.[1]  Officer Sapp testified at the implied-consent hearing that it would have been possible to contact the towing company to ask that the information be retrieved from Williams’s truck. 

Williams’s license was revoked based on the test results, and the district court sustained the revocation.  Williams appeals, asserting that his right to counsel was not vindicated because the officer refused to obtain from the impounded vehicle the information about the attorney he wanted to call.[2]

D E C I S I O N

 

            Williams challenges the district court’s application of law to undisputed facts and therefore we will review the present case de novo.  See Parsons v. Comm’r of Pub. Safety,488 N.W.2d 500, 501 (Minn. App. 1992).  A driver suspected of driving while under the influence of alcohol has a limited right to consult with an attorney before deciding whether to submit to chemical testing.  Minn. Stat. § 169A.51, subd. 2(4) (2000) (requiring advisory to person from whom test is requested that person has the right to consult with an attorney, limited to extent that it cannot unreasonably delay administration of the test); Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).

[A]ny person who is required to decide whether he will submit to a chemical test * * * shall have the right to consult with a lawyer of his own choosingbefore making that decision, provided that such a consultation does not unreasonably delay the administration of the test.  The person must be informed of this right, and the police officers must assist in its vindication.  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.

 

Delmore v. Comm’r of Pub. Safety, 499 N.W.2d 839, 841-42 (Minn. App. 1993) (quoting  Friedman, 473 N.W.2d at 835 (quotation omitted)).        

Williams argues that he was denied access to the attorney of his choosing because Officer Sapp refused to obtain that attorney’s name and telephone number from William’s impounded vehicle. 

Respondent argues that because Williams had unlimited use of the telephone and telephone directories for a reasonable amount of time, received legal advice before agreeing to take the breath test, and chose to stop calling, Williams’s right to counsel was vindicated.  Respondent asserts that the right to counsel is not lost simply because appellant was not able to speak with the attorney he preferred and that a duty to assist a driver by calling the towing company to get information from an impounded vehicle should not be imposed on police officers.  We agree. 

Cases in which we have held that a driver’s right to consult with an attorney of his own choosing was not vindicated involved situations in which the police chose the attorney to be contacted or restricted a driver’s ability to choose an attorney.  McNaughton v. Comm’r Pub. Safety, 536 N.W.2d 912, 915 (Minn. App. 1995) (holding right not vindicated where driver was handed list of five pre-selected attorneys and had no access to telephone books and no direct access to telephone or directory assistance); Delmore, 499 N.W.2d at 840, 842 (holding right not vindicated where officer dialed a number and handed phone to driver indicating this was the attorney to obtain advice from); Clough v. Comm’r of Pub. Safety, 360 N.W.2d 428, 429-30 (Minn. App. 1985) (holding right not vindicated when officer telephoned public defender, who did not timely return call, and driver not allowed to call parents for referral of an attorney). 

Here, Williams was allowed unlimited access to telephone directories and the telephone.  He was informed that he could call someone to obtain information about the attorney he sought.  His wallet was returned to him so that he could look for information about his attorney.  Williams was not restricted in his choice of counsel.  We decline to expand the duty of officers to assist drivers beyond the parameters already established by requiring that the officers themselves telephone entities outside of the police station and demand retrieval of information the driver seeks.

Affirmed.



* The Honorable Daniel F. Foley, one of the founding members of this court, who continued to serve by appointment order from the supreme court after his retirement, fully participated in the consideration of this appeal.  Due to Judge Foley’s untimely death before the filing of the opinion, Judge Kalitowski has been assigned as a substitute, and now joins the panel in issuing this decision.

[1] The videotape of Williams at the jail was admitted as evidence at the hearing as the complete record of what transpired after the implied consent advisory was read.

[2] Williams also alleged that the district court erred in admitting evidence from an “unapproved” breath-testing instrument, but withdrew that issue because it was decided in Jasper v. Comm’r of Pub. Safety, 642 N.W.2d 435 (Minn. 2002).