This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (2002).
STATE OF MINNESOTA
IN COURT OF APPEALS
Donald Peter Maietta,
Commissioner of Public Safety,
Filed May 6, 2003
Ramsey County District Court
File No. C7026866
Andrew S. Birrell, R. Travis Snider, Birrell & Newmark, Ltd., 510 First Avenue North, Suite 500, Minneapolis, MN† 55403 (for appellant)
Mike Hatch, Attorney General, Darren Dejong, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN† 55103 (for respondent)
††††††††††† Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Shumaker, Judge.
††††††††††† Appellant Donald Peter Maietta challenges the district courtís decision sustaining the revocation of his driverís license, contending that his right to counsel was not vindicated where he made a good faith, but unsuccessful, effort to contact his attorney during a 36-minute time period.† Because based on the totality of circumstances, appellant was afforded a reasonable amount of time to contact an attorney, we affirm.
††††††††††† In an implied consent matter, whether a personís right to counsel has been vindicated is a mixed question of law and fact.† Parsons v. Commír of Pub. Safety, 488 N.W.2d 500, 501 (Minn. App. 1992).† Findings of fact will not be set aside unless clearly erroneous.† Thorud v. Commír of Pub. Safety, 349 N.W.2d 343, 344 (Minn. App. 1984).† Where facts are established and not in dispute, ďtheir significance becomes a question of law.Ē† Parsons, 488 N.W.2d at 501.†
††††††††††† The vindication of the right to counsel is based on the totality of the circumstances.† Groe v. Commír of Pub. Safety, 615 N.W.2d 837, 841 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000).† A person has a limited right to consult with an attorney before deciding whether to submit to chemical testing.† Friedman v. Commír of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991) (basing limited right to counsel on Minn. Const. art. I, ß 6).† There is no bright-line rule governing how much time must be afforded to the arrestee.† Gergen v. Commír of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996).† ďRather, the relevant inquiry focuses both on the police officerís duties in vindicating the right to counsel and the defendantís diligent exercise of the right.Ē† Id. (quotation omitted).†
††††††††††† Here, appellant was stopped at 12:35 a.m.† By 1:02 a.m., he had been provided with a telephone and directories.† He thereafter made three phone calls, at 1:02 a.m., 1:11 a.m. and 1:34 a.m., all to the same attorney, but was unsuccessful at each attempt.† During the course of these calls, the arresting officer repeatedly advised appellant to try to contact other attorneys because he had only a limited time to make calls.† At 1:38 a.m., the arresting officer told appellant that he must decide whether to take a test.† Given these undisputed facts, we agree with the district court that appellant made a good faith, but unsuccessful, effort to contact an attorney.
††††††††††† The arrested party must also be given ďa reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing.Ē† Friedman, 473 N.W.2d at 835.† A reasonable opportunity, however, is not an unlimited opportunity.† Nor is the right to contact an attorney of oneís own choosing a guarantee of a right to contact one particular attorney.† See Linde v. Commír of Pub. Safety, 586 N.W.2d 807, 808-09 (Minn. App. 1998) (holding right to counsel vindicated, where appellant unsuccessfully attempted to contact only one attorney), review denied (Minn. Feb. 18, 1999); Eveslage v. Commír of Pub. Safety, 353 N.W.2d 623, 627 (Minn. App. 1984) (holding right to counsel vindicated where telephone and opportunity to call was made available, but arrestee chose to call only one attorney).
††††††††††† Here, appellant was given a reasonable time to contact an attorney, had access to a telephone and directories, and was advised by the arresting officer that he should try to contact other attorneys if unsuccessful.† Under these circumstances, we conclude that the officer fulfilled his duty and that appellantís limited right to counsel was vindicated.
††††††††††† Appellant finally argues that he was denied due process because the district court refused to permit him to submit a legal memorandum at the close of the implied consent hearing.† Due process requires an opportunity to be heard ďĎat a meaningful time and in a meaningful manner.íĒ† Kleven v. Commír of Pub. Safety, 399 N.W.2d 153, 156 (Minn. App. 1987) (quotations omitted).† No rule prescribes how that argument must be made; the opportunity to be heard can be exercised either by oral or written argument, so long as the party is granted the right to be heard and to respond to any relevant contentions made by the opposing party.† R.R. & Warehouse Commín v. Chicago & Northwestern Ry. Co., 256 Minn. 227, 235, 98 N.W.2d 60, 66 (1959).† Here, the district court permitted appellant to present an oral argument, thus affording him the basic rights of due process.