This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Commissioner of Public Safety,
Filed April 5, 2005
Kalitowski, Judge, dissenting
Aitkin County District Court
File No. C4-03-864
Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Peterson, Judge.
D E C I S I O N
arrestee has a limited right to counsel before deciding whether to submit to
testing. State v. Slette, 585
N.W.2d 407, 409 (
district court here concluded that although access to telephone books is a
factor in determining whether an arrestee’s right to counsel is vindicated, it
is not a prerequisite. See
Here, when the “totality of the facts” is considered, we cannot conclude that appellant had a reasonable opportunity to consult with counsel. See Parsons, 488 N.W.2d at 502. The trooper initially told appellant that although he would be given an unlimited amount of time if he was making a good faith effort, he would only get six or seven minutes if he was not doing anything and just sitting there. The trooper gave appellant a telephone and allowed him to contact his girlfriend to obtain a phone number for an attorney. But the trooper failed to provide appellant with any telephone books and admitted that none were in sight. After appellant’s four-minute conversation with his girlfriend ended unsuccessfully, the trooper, rather than asking appellant if he wished to make another call or if he could assist appellant, immediately asked appellant if he wanted to continue to attempt to contact an attorney. When appellant responded “probably not,” the trooper asked him if he would take a breath test, to which appellant replied “yes.” Only seven minutes elapsed between the reading of the implied consent advisory and the administration of the test. Considering the scant assistance provided by the trooper and the short amount of time involved, we cannot conclude that appellant was given a reasonable opportunity to consult with counsel. Nor can we conclude that appellant failed to make a good faith effort or that he otherwise waived his right to counsel.
We therefore reverse the district court’s order sustaining the revocation of appellant’s driver’s license.
KALITOWSKI, Judge (dissenting)
I respectfully dissent. The district court properly determined that under the totality of the circumstances, appellant’s limited right to counsel was vindicated.
In reaching this conclusion, the district court noted that (1) appellant was told he would have as much time as he needed to contact an attorney if he was making a legitimate and good-faith effort; (2) appellant stated that he wanted to contact an attorney and asked if he could call his girlfriend to get an attorney’s phone number; (3) appellant was provided a telephone and called his girlfriend; (4) after appellant finished speaking to his girlfriend the officer asked if appellant wished to continue to attempt to get an attorney and appellant responded, “Probably not”; (5) appellant gave no indication of any desire to continue efforts to get an attorney; and (6) appellant made no request for additional assistance.
supreme court has stated that “[t]he 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.”