This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2006).
IN COURT OF APPEALS
Ernest George Sorensen,
Commissioner of Public Safety,
Wright County District Court
File No. 86C605004379
Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas, P.A., 320 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, MN 55121 (for appellant)
Lori Swanson, Attorney General, Kyle R. Gustafson, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)
Considered and decided by Stoneburner, Presiding Judge; Minge, Judge; and Crippen, Judge.*
Appellant challenges the district court’s decision to sustain revocation of his driver’s license under the implied-consent law, arguing that he was arrested without probable cause for driving while impaired (DWI) and that his right to counsel was not vindicated. We affirm.
The driver of the vehicle, later
identified as appellant Ernest George Sorensen, Jr., immediately lit a cigar
and opened the driver’s door of the truck.
Sorensen reached under his seat as he exited the vehicle, and
Sergeant Jim Brings arrived to
Sorensen was taken to the law
enforcement center and read the implied-consent advisory. He asked to speak to an attorney and was
given a telephone and telephone books.
Sorensen made several calls over 28 minutes. He reached an attorney and spoke with the
attorney for about six minutes. Sorensen
asked Adams to speak to the attorney, but
I. Seizure and arrest
Sorensen asserts that he was immediately arrested after he stopped and that because the officer had only observed a petty misdemeanor traffic violation, there was no probable cause for arrest at that time. He claims, therefore, that the district court erred by sustaining revocation of his driver’s license. We disagree and conclude that the district court did not err in determining that the officer’s actions in seizing and searching Sorensen for weapons were justified by concern for officer safety.
Police may stop and frisk a person
when: (1) they have a reasonable articulable suspicion that the suspect may be
engaged in criminal activity and (2) they reasonably believe the suspect might
be armed and dangerous. Terry v.
The record does not support
Sorensen’s argument that Adams began to yell at him before
There is merit to the commissioner’s
argument that although Sorensen was seized when
A lawful stop or temporary investigative
detention is not converted into an unlawful arrest merely because the
individual is not free to leave or because police use a show of force, when the
circumstances warrant such a show. See, e.g., State v. Moffatt, 450 N.W.2d 116, 120 (
Once he was on the ground, the officers told Sorensen that he was under arrest for “obstructing.” Under Minn. Stat. § 609.50 subd. 1(2) (2004), a person who intentionally “obstructs, resists, or interferes with a peace officer while the officer is engaged in the performance of official duties” is guilty of a misdemeanor.
Sorensen argues that he could not be legally arrested for obstructing legal process because he did not use physical force against the officers or engage in any physical obstruction. But the obstruction-of-legal-process statute applies to both physical and verbal acts. State v. Occhino, 572 N.W.2d 316, 320-21 (Minn. App. 1997)(upholding conviction for obstructing legal process when defendant interfered with police officer performing her duties by repeatedly pacing back and forth by her desk and loudly interrupting her even though the defendant was asked to leave) (citing State v. Krawsky, 426 N.W.2d 875, 877 (Minn. 1988)), review denied (Minn. Jan. 28, 1998). The videotape shows that Sorensen did not respond to the officers’ commands: he kept his hands in his pockets or belt and did not get on the ground. He struggled with the officers when they assisted him to the ground. If Sorensen was merely seized but not arrested prior to being put on the ground, his struggle with the officers provided probable cause for his arrest. Additionally, as the officers came in contact with Sorensen, his intoxication was apparent, also justifying his arrest.
II. Right to counsel
have a limited right to counsel before deciding whether to submit to chemical
Sorensen does not dispute that he was provided with a telephone and an opportunity to talk with an attorney. He argues, however, that his limited right to counsel was violated because (1) he was not given privacy during the conversation with his attorney and (2) Adams unreasonably refused to speak with his attorney and Sorensen was not notified before he called the attorney of the kind of test he would be given.
Sorensen testified that Adams
refused to leave the room while Sorensen spoke to his attorney and that having
the officer present during the phone call “inhibited [him] from asking the questions
[of his attorney] that would have brought [him] more information.” But the Minnesota Supreme Court has “held
[that] the Friedman [limited] right
[to counsel] does not include the right to a private consultation with
counsel.” State v. Schmidt, 712 N.W.2d 530, 538 (
Sorensen further argues that his limited right to counsel was not vindicated because he was not informed of the kind of test he would be given so that he could consult with his attorney about the testing and because Adams refused to speak with Sorensen’s attorney. Sorensen testified that he “wanted to contact [his] attorney before [he] submitted to testing and find out what [his] rights [were] under the particular test.” But Sorensen has cited no authority for the proposition that an officer must speak to a DWI suspect’s attorney on request or must inform a DWI suspect of the type of test to be administered before the suspect speaks to an attorney. We find no merit in these arguments. Sorensen had ample time to speak to the attorney, and his right to counsel was vindicated.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
Sorensen asserts that crossing over the
centerline was only a petty misdemeanor offense that did not justify arrest,