This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Mark Carl Goede, petitioner,
Commissioner of Public Safety,
Filed April 8, 2003
Jackson County District Court
File No. C10261
Samuel A. McCloud, Richard P. Ohlenberg, Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (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 Lansing, Presiding Judge, Klaphake, Judge, and Stoneburner, Judge.
U N P U B L I S H E D O P I N I O N
Mark Goede appeals the district court’s order sustaining revocation of his driver’s license under the implied-consent law, claiming he was denied a reasonable opportunity to consult with an attorney and that his due process rights were violated when a police officer incorrectly advised him of the consequences of failing a breath test. Because the district court’s finding that Goede failed to make a good-faith effort to contact an attorney was not clearly erroneous, and, because the district court properly concluded that the officer’s responses to Goede’s questions did not violate Goede’s due process rights, we affirm.
F A C T S
Mark Goede was arrested for driving under the influence of alcohol. After being read the Minnesota implied-consent advisory, Goede stated that he wanted to speak to an attorney. The deputy provided a telephone and telephone directory to Goede at 3:40 a.m. Goede placed one phone call to his parents and did not make any other calls while he waited for them to call back with the number for an attorney. After his parents called back with a number, he attempted to call the attorney but was unable to make contact because the number was out of service.
Goede again contacted his parents and waited for them to call back with the phone number for another attorney. After twenty-five minutes, a sheriff’s deputy warned Goede that he had five remaining minutes to contact an attorney. Goede did not make any further phone calls and, after waiting ten more minutes, the deputy asked Goede to take a breath test at 4:15 a.m.
Goede asked the deputy about the consequences of his refusal to take the breath test. The deputy told Goede that he could not give legal advice but that refusing to take the test is a crime. Goede continued to question the deputy about the consequences of refusing to take the test, and the deputy informed him that he would be charged with a misdemeanor, that his license would be revoked for one year, and that if he did take the test the consequences would depend on whether Goede was intoxicated beyond the legal limit.
The deputy then received a call from a dispatcher, who stated that someone had called with another attorney’s phone number for Goede. The deputy asked the dispatcher to keep the message and, despite Goede’s requests, he did not allow Goede to call the attorney. Goede then asked the deputy what would happen if he took the breath test and it showed that he was intoxicated beyond the legal limit. The deputy replied, “I can’t tell you for sure. It looks like, it’s up to the, it says here for a period of a hundred and eighty days if you have a prior driving conviction or prior impaired-driving loss of driver’s license within the last ten years.” The deputy did not inform Goede that an alcohol concentration of 0.20 or more results in a doubling of the applicable revocation period. See Minn. Stat. § 169A.52, subd. 4(4). Based on that information, Goede agreed to take the breath test at 4:33 a.m.
At the implied consent hearing, the parties stipulated that Goede’s breath test showed that he had a .22 alcohol concentration and that he had prior license revocations and convictions for alcohol-related violations. Goede appeals from the district court order sustaining the revocation of his driver’s license under Minn. Stat. § 169A.52, subd. 4(a) (2002).
D E C I S I O N
Under the Minnesota Constitution, a driver has a limited right to consult with an attorney before deciding whether to submit to chemical testing. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). That right is vindicated if the driver “is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.” Id. (quoting Prideaux v. State, Dep’t of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976)). Police officers must assist in the exercise of the right to counsel. Id. But the driver must make a good-faith effort to contact an attorney. Kuhn v. Comm’r of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).
Courts consider several factors in determining whether a driver had a reasonable opportunity to consult with an attorney, including whether the driver was given a reasonable time to contact counsel, whether the officer assisted the driver in contacting counsel, whether the officer provided a telephone directory to the driver, whether the driver was allowed to contact anyone the driver selected, the hour at which the driver was attempting to contact counsel, and the length of time the driver had been under arrest. See Kuhn, 488 N.W.2d at 842; Parsons v. Comm’r of Pub. Safety, 488 N.W.2d 500, 502 (Minn. App. 1992). The court considers the “totality of the facts” in determining if a driver’s right to counsel has been vindicated. Parsons, 488 N.W.2d at 502. Whether a driver made a good-faith effort to contact an attorney is a fact-specific inquiry, and the reviewing court needs to determine only if the district court’s finding is clearly erroneous. Gergen v. Comm’r of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996). Once the facts are established, their significance constitutes a question of law that we review de novo. Parsons, 488 N.W.2d at 501.
The district court found that Goede had a reasonable amount of time to contact an attorney, that he did not make a good-faith and sincere effort to do so, and that there were no circumstances that would have justified giving Goede more time to contact an attorney. This decision is supported by the record. It is undisputed that after Goede indicated he would like to speak to an attorney he had unrestricted access to telephone books and a telephone for thirty-five minutes and that during this time Goede only attempted to call one attorney. We have held that a good-faith effort requires more than placing phone calls to specific parties and waiting for return calls. See Linde v. Comm’r of Pub. Safety, 586 N.W.2d 807, 810 (Minn. App. 1998) (holding that driver did not make good-faith effort when he did not contact other attorneys after being unable to reach specific attorney), review denied (Minn. Feb. 18, 1999); Palme v. Comm’r of Pub. Safety, 541 N.W.2d 340, 345 (Minn. App. 1995) (stating that “[a] driver cannot be permitted to wait indefinitely for a call that may never come”), review denied (Minn. Feb. 27, 1996). Under the undisputed facts, the district court’s finding that Goede failed to make a good-faith effort to contact an attorney was not clearly erroneous.
Goede argues that he should have had a longer period of time to contact an attorney because of the time of day he was placing the calls. A driver should be given more time to contact an attorney in the early morning hours when locating an attorney may be more difficult. Kuhn, 488 N.W.2d at 842. Although Goede was arrested in the early morning, he attempted to contact only one attorney in thirty-five minutes. Thirty-five minutes is adequate time to make contact with an attorney in the early morning; Goede failed to make a good-faith effort to contact an attorney when given the opportunity.
In arguing that he was denied a reasonable opportunity to consult counsel, Goede also points out that the deputy asked for his final decision on the breath test fifty minutes before the statutory time period for testing elapsed. See Minn. Stat. § 169A.20, subd. 1(5) (2002) (permitting driving-while-impaired prosecution based on alcohol-concentration level measured up to two hours after driving). This contention states the Kuhn length-of-time factor too categorically. Kuhn states that the length of time the driver has been under arrest is important because the longer he is under arrest, the less probative value the chemical test may ultimately have due to the evanescent nature of alcohol-concentration evidence. Kuhn, 488 N.W.2d at 842. The Kuhn factor indicates that police can consider how much time has elapsed between the initial arrest and the administration of the breath test when deciding if a driver has had a reasonable amount of time to contact an attorney. But police are not obligated to wait until the two-hour statutory time period is about to expire before administering the breath test.
When a statute requires that a person be informed of certain rights and obligations before testing, the reviewing court must determine whether the information comports with the fundamental fairness required by due process. Davis v. Comm’r of Pub. Safety, 509 N.W.2d 380, 386 (Minn. App. 1993) (citing South Dakota v. Neville, 459 U.S. 553, 564-66, 103 S. Ct. 916, 923-24 (1983)), aff’d, 517 N.W.2d 901 (Minn. 1994). Due process does not permit police officers to mislead individuals actively concerning either their legal obligations or the penalties they might face should they fail to satisfy those obligations. McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 853-54 (Minn. 1991). It is not a violation of due process for an officer to fail to “advise individuals of all the possible consequences they could face in refusing a breath test.” Id. at 853. An accurate assessment of the precise consequences of refusing or failing to pass a breath test is within the expertise of an attorney and beyond the scope of a police officer’s function. Friedman, 473 N.W.2d at 833. On undisputed facts, we will overturn conclusions of law only if the district court has erroneously construed and applied the law to the facts. Dehn v. Comm’r of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986).
The district court correctly found that the deputy did not violate Goede’s due process rights by failing to advise him of all the possible consequences of taking or refusing a breath test, and that the deputy did not mislead Goede. It is undisputed that Goede asked the officer about the consequences of refusing to take a breath test, that the deputy correctly advised Goede that refusal would be a crime, and that, despite the deputy’s statement that he could not provide legal advice, Goede continued to ask the deputy legal questions about the consequences of taking the breath test. The record shows that the deputy correctly stated that if Goede refused to take the test his license would be revoked for one year. See Minn. Stat. § 169A.52, subd. 3(a) (2002). When Goede asked the deputy what would happen if he failed the test the deputy replied “I can’t tell you for sure,” and then he went on to read him statutory language on the standard revocation period of 180 days for a driver with a prior impaired-driving record within the past ten years. See Minn. Stat. § 169A.52, subd. 4(3) (2002).
Under these facts, the deputy did not actively mislead Goede about the consequences of failing the breath test. The officer made a good-faith effort to explain correctly the penalty for failing the breath test because he considered Goede’s prior impaired-driving record when he told Goede he would lose his license for 180 days. The deputy made this statement before Goede took the breath test, so he was unaware that Goede had an alcohol concentration greater than .20, which requires a longer revocation period. See id. at 4(4). In addition, the deputy warned Goede that he was unqualified to give legal advice. Thus, the deputy did not attempt to induce or mislead Goede into taking the breath test by purposely misstating the legal consequences of failing the test, and the district court did not err in concluding that Goede’s due process rights were not violated by the deputy’s statements on the consequences of failing the breath test.