This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2002).
IN COURT OF APPEALS
Todd James Van Buren,
Commissioner of Public Safety,
Stearns County District Court
File No. C402886
Robert D. Stoneburner, Stoneburner Law Office, 100 Washburne Avenue, P.O. Box 202, Paynesville, MN 56362 (for appellant)
Mike Hatch, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)
Considered and decided by Toussaint, Chief Judge, Shumaker, Judge, and Minge, Judge.
TOUSSAINT, Chief Judge
Appellant challenges the district court order sustaining the revocation of his driver’s license under the implied consent law, Minn. Stat. § 169A.53 (2002). Appellant contends that his right to counsel was not vindicated because he was given only 23 minutes to contact counsel and the officer, ordered him to hang up the phone while he was trying to obtain the phone number of an attorney from his father. Because appellant was given a reasonable opportunity to contact an attorney, and he failed to tell the officer the reason why he was talking on the phone with his father, we affirm.
On January 26, 2002, at approximately 11:47 p.m., Officer Jolene Thelen stopped appellant Todd James Van Buren’s car. Officer Thelen observed indications that Van Buren was under the influence of alcohol and arrested him for DWI. Van Buren was taken to the Stearns County Law Enforcement Center where Officer Thelen read him the Minnesota Implied Consent Advisory form. When Officer Thelen asked Van Buren if he wished to consult with an attorney, Van Buren said “yes.”
At 12:26 a.m., Van Buren was placed in a small room and given a telephone and telephone directories to contact an attorney. Van Buren tried to make a long-distance phone call to contact an attorney in Paynesville, Minnesota, but the call did not go through. Officer Thelen went to talk to jail staff about the problem, and upon her return, informed Van Buren that he would have to call collect if he wanted to make a long-distance phone call. Van Buren called the attorney in Paynesville again and left a message on the attorney’s answering machine. Afterwards, he left the telephone room and brought the telephone directories to Officer Thelen. Officer Thelen asked Van Buren if he was done trying to contact an attorney, and Van Buren responded “no.”
Van Buren returned to the telephone room, and at approximately 12:49 a.m., he made a long-distance phone call to his father in Willmar, Minnesota. Officer Thelen overheard Van Buren talking in a social manner and went into the telephone room to tell him that “if he was not speaking to an attorney, he needed to hang up the phone.” Van Buren hung up, and Officer Thelen then told him that he had to decide whether to submit to testing. Van Buren did not tell Officer Thelen whom he was talking to, nor did he tell her that he was done using the telephone. Instead, Van Buren agreed to take the test and did not make any additional phone calls.
At the implied-consent hearing, Officer Thelen testified that Van Buren was allowed 23 minutes to use the telephone. Van Buren testified that he called his father to get the phone number of an attorney, but he admitted that he did not tell Officer Thelen why he was calling his father. The district court concluded that Van Buren’s right to counsel was vindicated and sustained the commissioner’s order of revocation.
Van Buren argues that his right to counsel was not vindicated because (1) he had only 23 minutes to contact and attorney; and (2) his phone call to his father to obtain the name and phone number of an attorney was interrupted before he could obtain such information.
The determination of whether a driver’s right to counsel was vindicated 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). 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.” Id.
Drivers have a right to counsel prior to deciding if they wish to submit to alcohol testing under the implied consent law. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). The right to counsel is a limited right because of the evanescent nature of the evidence in DWI cases. Kuhn, 488 N.W.2d at 840. A police officer must inform the driver of the right to counsel and must also assist in vindicating the right. Gergen v. Comm’r of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996).
Whether a driver’s right to counsel is vindicated depends on the totality of the circumstances. Parsons v. Comm’r of Pub. Safety, 488 N.W.2d 500, 502 (Minn. App. 1992).
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.
Kuhn, 488 N.W.2d at 840. There is no definitive amount of time that constitutes a reasonable amount of time. Id. at 842. A relevant inquiry into a reasonable amount of time focuses “both on the police officer’s duties in vindicating the right to counsel and the defendant’s diligent exercise of the right.” Id. In determining whether a driver has been given a reasonable amount of time, this court considers several factors, including the time of day, the length of time the driver has been under arrest, and whether the driver made a good faith and sincere effort to contact counsel. Id. For a defendant’s right to counsel to be vindicated, “as a threshold matter the driver must make a good faith and sincere effort to reach an attorney.” Id. Whether a defendant made a good faith effort to contact an attorney is a fact-specific inquiry, and on review, this court determines whether the district court’s finding is clearly erroneous. Gergen, 548 N.W.2d at 309.
Here, Van Buren does not challenge the district court’s findings of fact, but rather, Van Buren argues that he was not given a reasonable amount of time to contact and consult with an attorney. Van Buren was given phonebooks and access to a telephone for 23 minutes, and after leaving a message for one attorney, he returned the phonebooks to Officer Thelen. Van Buren was then given the opportunity to make another phone call, and he chose to call his father. Once Officer Thelen realized that Van Buren was not talking to an attorney, she told him to terminate the phone call. Van Buren did not tell the officer that he was calling his father to obtain the name and phone number of an attorney. In light of these facts, it is clear that Van Buren was given a reasonable opportunity to contact an attorney.
Van Buren also argues that his right to counsel was not vindicated because Officer Thelen interrupted his phone call to his father, and he relies on Duff v. Comm’r of Pub. Safety, 560 N.W.2d 735 (Minn. App. 1997) for support. But Duff is distinguishable from the present case because in Duff the police officer cut short the defendant’s phone call with his attorney. While police officers must permit a driver to contact a family member to obtain an attorney’s name and phone number, where a driver does not tell a police officer that his purpose for contacting a family member is to get the name of an attorney, the police officer does not have to permit the phone call. State v. Christiansen, 515 N.W.2d 110, 113 (Minn. App. 1994), review denied (Minn. June 15, 1994). Here, Van Buren admitted that he did not tell Officer Thelen why he was contacting a family member. Accordingly, we cannot conclude that Officer Thelen failed to vindicate Van Buren’s right to counsel by cutting short his phone call and requiring him to decide whether to submit to testing.
Because Van Buren was given access to a telephone and was given a reasonable amount of time to contact an attorney, we conclude that his right to counsel was vindicated.
MINGE, Judge (dissenting)
In this case the appellant had at most 23 minutes of time to contact an attorney when the arresting officer terminated a telephone call between appellant and his father and demanded that the appellant decide whether he would take the breath test. In fact there was approximately one hour of additional time for him to obtain legal advice before the breath test had to be administered. Minn. Stat. § 169A.20, subd. 1 (2002) (requiring an alcohol concentration of 0.10 or more within two hours of driving or operating a motor vehicle).
This case, and many others like it, arise in the middle of the night when the accused’s analytical skills are likely impaired by alcohol, the accused is in detention, and the accused is trying to call an attorney who is typically only a name in the business listings in a telephone book. Often the accused simply reaches an office answering machine and it is unrealistic to expect a call back until the law office opens in the morning, long after the deadline for taking the test has expired. Add to this, the common requirement that any long distance calls must be a toll free number and even for the most determined, the effort to reach an attorney is unlikely to be successful.
I urge that we rule that the arresting officer has a responsibility to advise the accused that the accused may request necessary time (within the applicable limit) or call another for help in locating an attorney. Unless the accused knows he may make such requests, he likely will conclude he cannot find an attorney. The right to counsel then becomes an illusion, and the protections of the right are lost. See Parsons v. Comm’r of Pub. Safety, 488 N.W.2d 500, 502 (Minn. App. 1992) (noting that the purpose of the right to counsel is to protect lay persons who lack the skills and knowledge to defend themselves).
I would reverse. The officer cut off the appellant when he was trying to obtain assistance from his father in finding an attorney. This frustrated and in effect denied appellant the right to seek the assistance of counsel. If the officer had informed appellant that he could request more time to reach an attorney or call another for assistance in locating an attorney, appellant’s effort to reach counsel may have been successful.