This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed April 12, 2005
Gordon W. Shumaker, Judge
Dissenting, Minge, Judge
No. C4-04-858 (A04-1116)
File No. K7-04-661 (A04-1508)
Paul B. Ahern,
Paul B. Ahern, P.A. 5101 Thimsen
Avenue, Minnetonka, MN 55345
Attorney General, Sheila M. Fitzgerald Steichen, Melissa Eberhart, Assistant
Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN
Petersen, St. Cloud City Attorney, Laura L. Gray, Assistant City Attorney, 400
Second Street South, St. Cloud, MN 56301 (for respondent)
Considered and decided by Toussaint,
Chief Judge; Shumaker, Judge; and Minge, Judge.
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
On consolidated appeals
from a May 12, 2004 order sustaining the revocation of his driver’s license
under the implied-consent law and his August 2, 2004 conviction of criminal
refusal of testing in the second degree, appellant raises the singular issue of
whether the peace officer failed to vindicate his limited right to
counsel. We affirm.
At 6:33 p.m. on Sunday,
February 15, 2004, police officer Aaron Stellmach arrested appellant Douglas
Blaine in Stearns
County for driving under
the influence of alcohol. At 6:45 p.m.,
Stellmach read to Blaine the implied-consent advisory and Blaine said he wanted
to consult an attorney. Stellmach then
took Blaine to the Stearns County
When they arrived at the
jail at 7:09 p.m., Stellmach gave Blaine
the use of a telephone, from which he could make both long-distance and
directory-assisted calls, and provided tri-county telephone books and the “Blue
Pages.” Although Blaine
asked for a Minneapolis
directory, Stellmach did not give him one.
For the next 15 minutes, Blaine made several
telephone calls, including to his two brothers in the Twin Cities area, in an
effort to reach his own attorney, whose name he did not recall. He did not reach his brothers, and he made
calls to other attorneys whom he did not reach either. He recalled playing golf with attorney
Michael Burns, called his number, reached a receptionist, and left a message
with her to have Burns call him at the jail.
While he waited for the return call he did not try to reach any other
attorney, nor did he use phone books or directory assistance to continue to
search for a lawyer.
After Blaine stopped trying to find a lawyer,
Stellmach told him that he would have ten more minutes for a return call from
Burns. At 7:36 p.m., 25 minutes after
Stellmach had given a telephone and directories to Blaine, Stellmach re-read
the implied-consent advisory and asked Blaine
if he would take a breath test. Blaine replied by stating
four times that he had not yet consulted with his attorney. Stellmach treated his response as a test
refusal. Blaines’ driver’s license was revoked and the
district court sustained the revocation.
Contending that his right to consult with counsel had not been
D E C I S I O N
A motor vehicle driver arrested for
driving under the influence of alcohol has a limited right to consult an
attorney before deciding whether to submit to blood-alcohol testing, but he
cannot thereby unreasonably delay the testing.
Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). A peace officer must tell the driver of his
right to consult an attorney and must assist in vindicating that right. Butler
v. Comm’r of Pub. Safety, 348 N.W.2d 827, 829 (Minn. App. 1984). In determining whether the peace officer has
vindicated the driver’s limited right to counsel, we focus “both on the police
officer’s duties in vindicating the right to counsel and the defendant’s diligent
exercise of the right.” Kuhn v. Comm’r
of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Minn.
Oct. 20, 1992). That determination is a
mixed question of law and fact. Hartung
v. Comm’r of Pub. Safety, 634 N.W.2d 735, 737 (Minn. App. 2001), review
Dec. 11, 2001). We review the district
court’s findings for clear error on the issue of whether the driver has made a
diligent and good-faith effort to contact an attorney. Id. Once the facts are established, we make a
legal determination of whether or not the driver “was accorded a reasonable
opportunity to consult with counsel based on the given facts.” Kuhn, 488 N.W.2d at 840.
The district court ruled that Blaine “did not
diligently attempt to contact any available attorney; he merely
attempted to contact attorneys with whom he was acquainted.” The court also found that Blaine “chose not to attempt to seek counsel
from other local attorneys listed in the directories provided.” Blaine
disputes the court’s finding that he did not make a diligent effort to contact
a lawyer, but that finding is supported by the record.
A driver is deemed to have made a
good-faith effort to contact a lawyer when he diligently used the opportunity
provided by the officer to contact a lawyer.
Linde v. Comm’r of Pub. Safety, 586 N.W.2d 807, 809 (Minn. App. 1998). A driver may await a return call but “cannot
be permitted to wait indefinitely for a call that may never
come . . . .” Palme
v. Comm’r of Pub Safety, 541 N.W.2d 340, 345 (Minn. App. 1995), review
denied (Minn. Feb. 27, 1996).
“[R]efusing to try to contact more than one attorney or giving up trying
to contact an attorney is fundamentally different from making a continued good
faith effort to reach an attorney.” Kuhn,
488 N.W.2d at 841.
Blaine’s desire was to reach his own attorney
and he made several calls to try to find his telephone number. He was unsuccessful. He did succeed in reaching a receptionist of
some sort connected with Burns’ office and, after leaving a message with her,
he ceased his effort to contact a lawyer.
In the 25 minutes Stellmach
allotted to Blaine
to contact a lawyer, Blaine called only one lawyer and did not reach him
directly. There was nothing to prevent Blaine from continuing
his search while waiting for Burns to return his call. Stellmach concluded, as did the district
court, that Blaine’s
effort to reach an attorney was not diligent, at least as of the time he ceased
his search and opted to wait to see if Burns would call him back.
An officer may vindicate a
driver’s right to consult counsel by providing him with a telephone and
allowing him a reasonable time to contact a lawyer. Id.at 840. But the officer need not
ensure that the driver actually contact a lawyer, especially if the driver
elects to stop making calls. McNaughton
v. Comm’r of Pub. Safety, 536 N.W.2d 912, 915 (Minn. App. 1995). If the driver is unable to contact a lawyer
within a reasonable time, the officer may require the driver to decide to
submit to testing in the absence of counsel’s advice. Friedman, 473 N.W.2d at 835.
Generally, where an officer
has given a driver access to a telephone and telephone directories, along with
a reasonable amount of time to make calls, we have concluded that the officer
has vindicated the driver’s right to counsel.
See Gergen v. Comm’r of Pub.
Safety, 548 N.W.2d 307, 310 (Minn.
App. 1996) (officer vindicated driver’s right by providing driver with
telephone and directories for 36 minutes and offered to dial numbers), review
denied (Minn. Aug 6, 1996);
Palme,541 N.W.2d at 342
(officer vindicated driver’s right by providing driver with telephone and
directories for 29 minutes before requiring driver to decide whether to test); Parsons v. Comm’r of Pub. Safety, 488 N.W.2d 500, 502 (Minn. App.
1992) (officer vindicated driver’s right by explaining that time to consult
with counsel was limited and providing telephone and directories for 40
minutes). Only arbitrary actions or
actions that unreasonably hinder the driver’s exercise of the right fail to constitute
officer vindication. See Jones
v. Comm’r of Pub. Safety,660 N.W.2d 472, 476 (Minn. App. 2003) (right
not vindicated when dispatcher falsely advised attorney that time had expired);
Duff v. Comm’r of Pub. Safety, 560
N.W.2d 735, 737-38 (Minn. App. 1997) (right not vindicated when officer
instructed driver to end call with attorney before driver was able to obtain
sufficient advice); Kuhn, 488 N.W.2d
at 842 (right not vindicated when officer required driver to decide whether to
test while driver was making efforts to contact attorney).
Although not legally
made choices that carried the risk that his reasonable time for consulting a
lawyer would expire. He spent much of
his time trying to reach his brothers instead of a lawyer. When he reached a receptionist for Burns’
office, he chose to wait in hopes of receiving a return call from Burns. He made no effort at all to continue to
contact a lawyer, despite the fact that he had not yet actually reached a
lawyer. And when Stellmach warned him
that he had only ten minutes left, he chose not to call Burns again and impress
upon the receptionist the urgency of the return call, and he chose not to look
for other lawyers while he waited.
Considering the time
allotted Blaine to contact a lawyer, and what he did and failed to do during
that time, we hold that the district court did not commit clear error in ruling
that Blaine did not make a good-faith effort to contact counsel and that the
officer had vindicated his right to do so.
MINGE, Judge (dissenting)
I respectfully dissent. It is important that the right of the accused
to consult with an attorney before submitting to a test include a reasonable
time to attempt to reach counsel. The
right to counsel is fundamental. Our
supreme court has stated that “because of Minnesota’s lengthy and historic recognition
of human rights, human dignity, and the procedural protection for the rights of
the criminally accused, detention of drivers suspected of driving while under
the influence is a criminal proceeding invoking the right to counsel.” Friedman v. Comm’r of Pub. Safety, 473
N.W.2d 828, 836 (Minn.
court identified the underlying tension at issue in these cases as a
defendant’s right to counsel versus “the evanescent nature of the evidence in
DWI cases.” Id. at 835. What has emerged from this tension is a limited
right to counsel by which a defendant may, within a “reasonable time” and
without “unreasonabl[e] delay,” consult with an attorney. Id.
at 835-36 (quotation omitted). Out of
respect for the right itself, we have refrained from “basing the ‘reasonable’
time criteria on a specific number of elapsed minutes” and instead employed a
set of non-exclusive factors for analysis, among them the time of day at which
a driver attempts 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).
regular working hours, it is optimistic to expect a call back from an attorney
within 10 minutes after leaving a message.
To expect that during the evening or on the weekend an attorney will
both receive a message from and then return the call within 10 minutes is
unrealistic. As the law presently
stands, the maximum time a driver may wait for a return call is capped at
“indefinitely,” and “an officer must be allowed to reasonably determine that the
driver has had enough time.” Palme v.
Comm’r of Pub. Safety, 541 N.W.2d 340, 345 (Minn. App. 1995), review
denied (Minn. Feb. 27, 1996). Unless
there are other important considerations until the time limit for obtaining a
valid breath, urine, or blood sample is imminent, an accused who in good faith
is actively seeking counsel or is awaiting a call back shall be allowed the
available time to complete his effort to confer with counsel. If this time is an hour, an hour ought to be
available. In addition, reasonable
requests for resources available on the premises at the law enforcement center
should be afforded the accused.
In this case, 10 minutes was
too short a time for a call back. There
is no showing that any circumstances at the police station or otherwise
dictated the 10-minute limit for a call back.
Respondent concedes that approximately an hour remained to obtain a
valid sample. In addition, appellant
requested a Minneapolis
telephone directory. Although I do not
suggest that every law enforcement center is obligated to have a full array of
phone books, from the record it appears that appellant’s request was ignored. Under these circumstances, I conclude
appellant was not afforded a reasonable opportunity to locate or consult with