This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2006).




State of Minnesota,


Robert William Stevens,


Filed December 31, 2007


Halbrooks, Judge



Olmsted County District Court

File No. K9-05-2066


Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101; and


Terry L. Adkins, Rochester City Attorney, Michael J. Spindler-Krage, Assistant City Attorney, 210 Southeast 4th Street, Room 247, Rochester, MN 55904 (for respondent)


Samuel A. McCloud, Carson J. Heefner, McCloud & Heefner, P.A., Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (for appellant)



            Considered and decided by Halbrooks, Presiding Judge; Toussaint, Chief Judge; and Harten, Judge.*

U N P U B L I S H E D   O P I N I O N


            Appellant challenges his conviction of third-degree driving while impaired, arguing that his right to counsel was not vindicated and that he was denied his statutory right to an independent test.  We affirm.


            On May 25, 2005, at approximately 2:22 a.m., a Rochester police officer stopped appellant Robert William Stevens after observing him make a wide turn and change lanes without signaling.  Appellant was subsequently arrested for driving while impaired (DWI).  At approximately 3:00 a.m., the officer began processing appellant for the arrest.  At 3:07 a.m., the officer read appellant the Minnesota Implied Consent Advisory statement.  At approximately 3:33 a.m., appellant took an Intoxilyzer test.  The test recorded appellant’s alcohol concentration at .13.

            Appellant was subsequently charged in a four-count criminal complaint, including a charge of third-degree driving with an excess alcohol concentration.  At a contested omnibus hearing, appellant argued that the results of his Intoxilyzer test should be suppressed because the arresting officer had interfered with his right to counsel by discouraging him from calling an attorney and by not allowing him to call his father to help him find an attorney.  Appellant further argued that the officer interfered with his right to an independent blood test. 

            The district court ruled that the Intoxilyzer result was admissible.  The case proceeded pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), and the district court found appellant guilty of third-degree DWI with an alcohol concentration of .13 and dismissed the other charges.  Appellant now challenges the pretrial order denying his motion to suppress.  



            Appellant argues that his right to counsel was not vindicated because the officer discouraged him from calling an attorney and denied his request to call his parents.  Persons accused of DWI have a limited right to counsel before deciding whether to submit to chemical testing.  Minn. Const. art. I, § 6; Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).  When an officer requests an implied-consent test, the officer must advise the individual, among other things, that he or she “has the right to consult with an attorney, but that this right is limited to the extent that it cannot unreasonably delay administration of the test.”  Minn. Stat. § 169A.51, subd. 2(4) (2004).  This right is vindicated “if the person is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.”  Friedman, 473 N.W.2d at 835 (quotation omitted).  When the facts are undisputed, this court reviews de novo whether a defendant’s right to counsel was violated.  State v. Christiansen, 515 N.W.2d 110, 112 (Minn. App. 1994), review denied (Minn. June 15, 1994).

            The choice of whether or not to obtain counsel at a critical stage in a DWI case is an important one.  Friedman, 473 N.W.2d at 832.  When a lay person is asked to make a legal decision, such as submitting to a chemical test, “‘[a]n attorney, not a police officer, is the appropriate source of legal advice’ . . . .”  State v. Slette, 585 N.W.2d 407, 409 (Minn. App. 1998) (quoting Friedman, 473 N.W.2d at 833). 

            Appellant argues that the police officer’s remarks caused him to believe that his choice was not meaningful.  First, the officer stated, “Refusal is a crime, so the attorneys aren’t going to tell you to not take the test—you understand[?]”  Later, the officer said, “If you don’t test that is a crime . . . so I find it hard to believe that any attorney in that book is going to tell you not to test.”  And finally, the officer stated, “There’s not going to be hardly any attorney out there that [is] going to tell you not to take the test.”  The question is whether these statements effectively denied appellant his right to counsel.

            Before the officer made any of these statements, appellant called an attorney and left a message.  This occurred approximately 4:41 minutes into a recording made at the detention center.  The officer’s statement about the likelihood of an attorney advising against testing occurs at 7:36 minutes, the second such statement about a minute later.  For the next four minutes, appellant attempted to call other attorneys and also called his girlfriend.  After approximately 12:39 minutes had passed, the officer stated, “If I were you, I’d start dialing every number you could.” 

            At that point, appellant called the attorney he had first contacted and left a second message, ending at approximately 15:22 on the recording.  At approximately 18:10 minutes, the officer again opined that very few attorneys would advise appellant not to take the test.  The officer then asked appellant if he wanted to call an attorney or take the test, and appellant agreed to test.

            The record does not support appellant’s assertion that the officer interfered with his right to counsel.  Appellant twice called his attorney of choice, and he had ample opportunity to call others.  An officer need only facilitate the right to counsel, not ensure that appellant receives the best counsel.  Butler v. Comm’r of Pub. Safety, 348 N.W.2d 827, 829 (Minn. App. 1984).  The officer did so when she gave appellant the phone and phonebook and allowed him to make calls.  We therefore conclude that appellant’s right to counsel was vindicated.

            Appellant also contends that his right to counsel was denied when the officer did not allow him to call his father.  This court addressed a similar argument in Christiansen.  In Christianson,we concluded that the determinative factor is whether “the drivers . . . specifically told the officers that they wanted to contact their parents for the purpose of obtaining the name of an attorney.”  515 N.W.2d at 113.  Without that specific request, the right to counsel is not infringed.  Id.

            Prior to appellant’s request to call his father, he had already left a message for an attorney.  Appellant told the officer that that attorney was the only one he knew, to which the officer replied, “You are going to have to start dialing another one,” at 5:48 minutes of the recording.  After approximately two minutes of silence, appellant asked if he could speak with his father and was told that he could only call an attorney.  But appellant never stated that he wanted to call his dad so that he could get the name of an attorney.  Soon after, he resumed looking for and calling attorneys.    

            This case is distinguishable from Clough v. Comm’r of Pub. Safety, 360 N.W.2d 428 (Minn. App. 1985), where this court concluded that a DWI arrestee had a limited right to call his or her parents.  In Clough, the officer called a public defender on his own initiative.  The public defender took approximately 20 minutes to call back and the officer then refused to allow the attorney to speak with the arrestee because it was too late.  360 N.W.2d 430.  The arrestee then asked to call his parents to get the name of their attorney and that request was denied.  Id. at 429.  Under those unique facts, this court determined that the denial of the phone call to defendant’s parents was a denial of his right to counsel.  Based on Christiansen, without a specific request to speak with his parents in order to get the name of their attorney, appellant’s right to counsel was not violated by the officer’s refusal to let him call his parents.  515 N.W.2d at 113.


            Appellant also asserts that he was improperly denied his right to an independent blood test.  “When the facts are undisputed, whether the police prevented or denied an independent blood test is a question of law.”  Cosky v. Comm’r of Pub. Safety, 602 N.W.2d 892, 893-94 (Minn. App. 1999), review denied (Minn. Jan. 18, 2000).  Questions of law are reviewed de novo.  Mahoney & Hagberg v. Newgard, 729 N.W.2d 302, 306 (Minn. 2007).

            The right to an independent blood test is codified in Minn. Stat. § 169A.51, subd. 7(b) (2004), which states:

            The person tested has the right to have someone of the person’s own choosing administer a chemical test or tests in addition to any administered at the direction of a peace officer; provided, that the additional test sample on behalf of the person is obtained at the place where the person is in custody, after the test administered at the direction of a peace officer, and at no expense to the state.  The failure or inability to obtain an additional test or tests by a person does not preclude the admission in evidence of the test taken at the direction of a peace officer unless the additional test was prevented or denied by the peace officer.


Under the statute, an officer is not required to assist an individual in getting an independent test but cannot hamper an attempt to get one.  Cosky, 602 N.W.2d at 894.  An officer need only permit the individual to have access to a phone.  Id.

            Here, appellant stated twice that he wanted to get a blood test.  The first time, the officer told appellant, “If you want to take a blood test you can.  After I’m done asking you questions . . . you can get out of this room and you can go over and make phone calls, o.k.?  One of those phone calls can be to have an independent test done.”  Appellant’s second request occurred at the end of the tape.  When appellant stated that he wanted to have a blood test, the officer simply asked, “Anything else?,” and the tape ended.  Appellant was then handed over to the jail staff.

            The district court found that there was no evidence that once appellant was turned over to jail staff, he followed up on his inquiry concerning an independent test or that he was denied use of a telephone and directory to arrange additional testing.  The record supports the district court’s findings.  Because there was no violation of Minn. Stat. § 169A.51, subd. 7(b), here, we affirm.




*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.