This opinion will be unpublished and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
David P. Burmayer,
Filed September 5, 2006
Hubbard County District Court
File No. TX04002361
Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and
Gregory D. Larson, Hubbard County Attorney, Hubbard County Courthouse, 301 Court Avenue, Park Rapids, Minnesota 56470 (for respondent)
Rich Kenly, Kenly Law Offices,
Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Hudson, Judge.
U N P U B L I S H E D O P I N I O N
Appellant challenges a pretrial order denying his motion to suppress the results of an Intoxilyzer test in his prosecution for driving while impaired, arguing that police failed to vindicate his right to counsel. Because the record reflects that police provided a telephone and a reasonable time for appellant to contact an attorney, and did not actively mislead appellant as to the consequences of waiving his right to speak with an attorney, we affirm.
A transcript of appellant’s interview with police after his arrest reflects that after the officer transported appellant to the Hubbard County jail, the officer read appellant the implied consent advisory and asked him if he understood it. Appellant indicated that he understood and asked the officer about the legal consequences of taking the test. The officer stated that appellant’s prior convictions were over ten years old, that the results of the preliminary breath test indicated a charge of fourth-degree DWI, and that test refusal would increase the offense to a gross misdemeanor. Appellant expressed that he would lose his job whether he took the test or not because he would lose his “cdl” (commercial driver’s license). He asked if the police had the phone number of his attorney. The officer replied that he needed to know whether appellant wished to consult an attorney. When appellant stated that he did, the officer directed him to the location of the phone books and stated that if he could not reach his attorney, there were other attorneys. Appellant then stated, “yeah well he’s my he the main man I guess something else he done but you know the whole things is the bottom line is in your opinion I’m still going to go to court for a [DWI] right [?]” The officer replied, “Correct.” Appellant then gave his consent for the Intoxilyzer test, which showed an alcohol concentration of .15.
Appellant was charged with fourth-degree DWI and an open-bottle violation. He moved to suppress the results of the Intoxilyzer test, arguing that the police officer did not vindicate his limited right to counsel because the officer did not provide time to use the phone books or a telephone and misled appellant by indicating that he would go to court regardless of an attorney’s advice. The district court denied the motion to suppress.
was tried and convicted of fourth-degree DWI on stipulated facts under the
procedure in State v. Lothenbach, 296
N.W.2d 854, 857 (
D E C I S I O N
have a limited right to counsel before deciding whether to submit to chemical
Appellant argues that he was denied the use of a telephone to contact his attorney because the police interview transcript following his arrest does not affirmatively indicate the presence of a telephone in the interview room. But the transcript shows that the police officer asked appellant twice if he wished to consult with an attorney, showed him where there were available phone books, and stated that if he could not reach his attorney, there were other attorneys. Appellant declined to use the phone books to look for an attorney. Because the record shows that the officer provided phone books for appellant to use to find an attorney, the fact that the interview transcript does not affirmatively show the presence of a telephone in the interview room does not give rise to an inference that appellant was denied the right personally to use a telephone.
Appellant also argues that he was
induced to waive his right to speak with an attorney because he was actively
misled by the police officer’s positive response when he asked the officer’s
opinion on whether he would “still be going to court for a DWI.” An officer’s response to a defendant’s
questions about the implied consent advisory is actively misleading and in
violation of due process if it threatens charges the state lacks authority to
impose. McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 855 (
Appellant finally argues that he was not given reasonable time to consult with an attorney before taking the test. But the transcript shows that appellant unequivocally agreed to waive his right to consult with an attorney and take the breath test. The officer verified this waiver before giving the test. The record provides no indication that appellant changed his mind or attempted to withdraw the waiver in the presence of the officer. Cf. State v. Slette, 585 N.W.2d 407, 409 (Minn. App. 1998) (holding that officer’s refusal to recognize withdrawal of waiver was error when appellant changed mind within a few minutes). Because the record does not support a finding that appellant attempted to withdraw his waiver of the right to consult with an attorney in the presence of the officer, the officer appropriately terminated the interview at that point, and we affirm.