This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-639

 

 

John Edward Merkent, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

 

Filed January 9, 2007

Affirmed

Lansing, Judge

 

Sherburne County District Court

File No. C7-05-2631

 

David J. Risk, Caplan Law Firm, P.A., 525 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)

 

Lori Swanson, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

 

††††††††††† Considered and decided by Lansing, Presiding Judge; Dietzen, Judge; and Worke, Judge.

U N P U B L I S H E D†† O P I N I O N

LANSING, Judge

††††††††††† John Merkent appeals the district courtís order sustaining the revocation of his driverís license under the implied-consent law, claiming that he was denied a reasonable opportunity to consult with an attorney.† Because the record indicates that Merkent was permitted thirty-five minutes to make calls and that he then told the supervising deputy that he was finished using the phone, and, because the record does not support Merkentís claim that the sheriffís department interfered with his right to speak with his attorney before the administration of a breath test, we affirm the revocation order.†

F A C T S

††††††††††† A Sherburne County deputy sheriff arrested John Merkent for driving while impaired in November 2005.† Merkent submitted to a breath test that reported an alcohol concentration of .16.† The Commissioner of Public Safety revoked Merkentís license, and Merkent requested judicial review.†

††††††††††† At the implied-consent hearing, the deputy testified that he stopped Merkentís vehicle just before midnight on November 2.† Merkent was then arrested for DWI.† After transporting Merkent to the county jail, the deputy read him the implied-consent advisory and provided him with a telephone and telephone books at 12:32 a.m.† Merkent, who had a New York driverís license, called his friend, Ralph Dickenson, who lived in Pennsylvania.† Merkent told Dickenson that he had been arrested for DWI and needed an attorney.† He provided Dickenson the phone number for the jail.† At 1:07 a.m., Merkent told the deputy that he was finished using the phone and agreed to submit to an Intoxilyzer test.† The test began at 1:35 a.m. and was completed at 1:44 a.m.†

††††††††††† Dickenson testified that he received Merkentís call around 1:30 a.m. †Dickenson did not explain if this was Eastern Standard Time or Central Standard Time. †Following their conversation, Dickenson contacted a Minnesota law firm, spoke with a paralegal, and waited for an attorney to call him back.† Based on Dickensonís time estimates, attorney David Risk returned his call about 1:40 a.m.† Dickenson explained the situation to Risk and provided him with the telephone number of the jail. ††

††††††††††† Risk testified that he received the call from the firmís paralegal sometime between ď1:00, 1:30, 2 oíclock.Ē †After talking with Dickenson, Risk called the jail and spoke with the dispatcher.† Risk identified himself as an attorney and asked to speak with Merkent.† The dispatcher placed Risk on hold for a few minutes and then told him that Merkent was not available.†

††††††††††† The district court concluded that Merkentís right to counsel was vindicated and denied Merkentís motion to rescind the revocation of his license.† The denial was based, first, on the district courtís findings that the deputy had provided the necessary ďphone books, telephone and time.Ē† Second, the district court specifically credited the deputyís testimony that Merkent said that he had finished using the phone, told the deputy he did not want to make additional calls, and agreed to submit to a breath test. †On appeal, Merkent argues that he was denied a reasonable opportunity to speak with an attorney because the sheriffís office did not explain why they did not permit him to speak with Risk.† ††

D E C I S I O N

††††††††††† In Minnesota, drivers have a limited right to counsel before deciding to submit to chemical testing.† Friedman v. Commír of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).† That right is vindicated if the driver ďis provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.Ē† Id. (quotation omitted).† Police officers must assist in the exercise of the right to counsel.† Id.† But the driver must make a good-faith effort to contact an attorney.† Kuhn v. Commír of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).

††††††††††† Courts consider several factors in determining whether a driver had a reasonable opportunity to consult with an attorney, including whether the driver was given a reasonable time, whether the officer assisted the driver, and the length of time the driver has been under arrest.† Kuhn, 488 N.W.2d at 842; Parsons v. Commír of Pub. Safety, 488 N.W.2d 500, 502 (Minn. App. 1992).† The court considers the ďtotality of the factsĒ in determining if a driverís right to counsel has been vindicated.† Parsons, 488 N.W.2d at 502.† Whether a driver made a good-faith effort to contact an attorney is a fact-specific inquiry that we review for clear error.† Gergen v. Commír of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996).† Once the facts are established, their significance constitutes a question of law that we review de novo.† Parsons, 488 N.W.2d at 501.

††††††††††† Merkent argues that the police failed to vindicate his right to counsel because the police dispatcher unreasonably denied Riskís attempt to speak with Merkent before the deputy administered the breath test.† Merkent contends that his license revocation should be rescinded because the circumstances of his case are analogous to the circumstances of the driver in Jones v. Commissioner of Public Safety, 660 N.W.2d 472, 474-76 (Minn. App. 2003).† We disagree.† †

††††††††††† In Jones, the driver left a message with an attorney who immediately returned the call to the police station.† Id at 474. †The dispatcher denied the attorney the opportunity to speak with the driver, instead telling the attorney that the driverís time had expired.† Id.† Based on the undisputed facts of an immediate call-back, absence of evidence that the test had begun, and the failure of the dispatcher to check to determine whether Jones could speak with his attorney, we held that the ďburden of productionĒ shifted to the state to provide a reasonable explanation of the denial of telephone contact.† Id. at 475-76

††††††††††† The circumstances in this case are not the same.† The district courtís findings, which are supported by the evidence, show that Merkentís attorney telephoned the jail after a significant amount of time had elapsed since Merkentís call, and Merkent was in the course of taking or completing the Intoxilyzer test.† The evidence shows that, after thirty-five minutes of trying to reach an attorney without success, Merkent told the deputy that he was done using the phone and elected to submit to testing at 1:07 a.m.† Risk did not speak with Dickenson until sometime between 1:30 a.m. and 2:00 a.m.† Because Dickenson had not yet spoken with Risk, Risk could not have called the county jail before the deputy began administering the Intoxilyzer test at 1:35 a.m.†

††††††††††† Merkent disputes the accuracy of the district courtís findings, arguing that the record shows a substantial amount of confusion about the actual time because the arrest occurred close to the change from Daylight Savings Time to Standard Time.† The record indicates that the clock in the Intoxilyzer room had not been properly adjusted, but the deputyís testimony accounted for the disparity, and the district court found his testimony to be credible.† Riskís own testimony established that the dispatcher told him that he could not speak with Merkent because he was taking the breath test.† This testimony is consistent with the courtís time-related findings and we perceive no error in the fact-findings on the dispositive issues.† See Minn. R. Civ. P. 52.01 (stating that district courtís factual findings will be overturned only if clearly erroneous).

††††††††††† The district courtís findings, as stated, establish that Risk did not call the county jail before Merkent consented to take a breath test, and that test was being administered.† The right to consult with an attorney on whether to submit to chemical testing is not unlimited; the deterioration of evidence and the efficient use of police efforts impose a necessary finality once the driver has made a decision.† Palme v. Commír of Pub. Safety, 541 N.W.2d 340, 342-45 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996).† The police vindicated Merkentís right to counsel by providing him with a phone, directories, and a reasonable amount of time.† Merkent told the deputy that he had finished using the telephone and reaffirmed that statement when the deputy again asked him whether he was finished.† Merkent agreed to submit to a breath test, and the deputy administered the test.† The record does not support Merkentís claim that he was unreasonably denied the right to speak with his attorney, and we therefore affirm the district courtís denial of Merkentís motion to rescind the revocation of his license.

††††††††††† Affirmed.