This opinion will be unpublished and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
Robert John Rother,
Filed October 4, 2005
Gordon W. Shumaker, Judge
Blue Earth County District Court
File No. K1-03-1975
Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul,
Eileen M. Wells, Mankato City Attorney, Christopher D. Cain, Assistant City Attorney, 10 Civic Center Plaza, P.O. Box 3368, Mankato, MN 56002 (for respondent)
Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Forsberg, Judge.*
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
Appellant Robert John Rother challenges his convictions of gross-misdemeanor and misdemeanor counts of driving while impaired, arguing that the results of a blood test should have been suppressed because his limited right to counsel was not vindicated when the arresting officer gave him insufficient time to consult with an attorney before submitting to the test. Because Rother was given a sufficient opportunity to contact an attorney and declined to try to make such contact after one unsuccessful attempt, we affirm.
August 27, 2003,
McClinton took Rother to the police station and read to him the Implied Consent Advisory at 3:29 a.m. Rother said he wanted to consult with an attorney before deciding whether to submit to blood-alcohol testing. McClinton gave him a telephone book and access to a telephone. Rother called an attorney but did not reach him and instead left a message.
Eight or nine minutes later, while Rother was still waiting for a return call from the lawyer he contacted, McClinton asked him if he wanted to try to contact a different attorney. Rother stated that he did not, but he did not affirmatively indicate that he was giving up his limited right to counsel. McClinton then terminated Rother’s use of the telephone.
McClinton initially offered a breath test but then found that the Intoxilyzer was not working. Rother then agreed to take a blood test, which was administered at a hospital 20 minutes later at about 4:00 a.m. The test showed a blood-alcohol concentration of .18.
At an omnibus hearing, Rother moved
to suppress the test result on the ground that his limited right to counsel had
not been vindicated. The court denied
the motion. The parties then submitted
the case to the court under State v. Lothenbach,
296 N.W.2d 854 (
D E C I S I O N
The determination of whether an
officer has vindicated a driver’s right to counsel is a mixed question of law
and fact. Kuhn v. Comm’r of Pub. Safety, 488 N.W.2d 838, 840 (
Rother argues that his right to contact an attorney was not vindicated because he was not afforded a reasonable amount of time in which to contact the attorney of his choice. Rother attempted to contact an attorney at 3:31 a.m., and Officer McClinton terminated his use of the phone at 3:40 a.m.
driver has a limited right to counsel before submitting to chemical testing for
alcohol concentration, as long as the consultation does not unreasonably delay
the testing. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (
was given the opportunity to contact an attorney of his choice. By 3:40 a.m. he was unable to reach his
chosen attorney, but he was not prevented from contacting any other
attorney. In fact, Officer McClinton
specifically asked Rother if he wanted to contact another attorney and Rother
said “no.” In Kuhn, this court stated that “refusing to try to contact more than
one attorney or giving up trying to contact an attorney is fundamentally
different than making a continued good-faith effort to reach an attorney.” 488 N.W.2d at 841. Here, Rother did not make a “good faith and
sincere effort to reach an attorney.”
Upon cursory review, it might appear that the allowance of only eight or nine minutes to contact a lawyer at 3:30 a.m. is unreasonable. But the time allowed is only one factor in our analysis. What Rother manifested to McClinton was that he tried unsuccessfully to reach a particular lawyer but was not interested in trying to contact another. With that indication, the officer could have reasonably concluded that the allowance of additional time would be without purpose. On this record, the district court did not err in determining that Rother’s limited right to counsel had been vindicated.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.