This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

C6-95-2310

Paul Douglas Christiansen, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed May 21, 1996

Affirmed

Amundson, Judge

Carver County District Court

File No. C395976

Samuel A. McCloud, Kelly Vince Griffitts, Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (for Appellant)

Hubert H. Humphrey, III, Attorney General, Peter R. Marker, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for Respondent)

Considered and decided by Short, Presiding Judge, Kalitowski, Judge, and Amundson, Judge.

U N P U B L I S H E D O P I N I O N

AMUNDSON, Judge

Paul Christiansen challenges the revocation of his driver's license, arguing that the district court erred in determining that his limited right to counsel was vindicated. We affirm.

FACTS

At approximately 9:00 p.m. on May 3, 1995, a Carver County deputy arrested Paul Christiansen for driving under the influence of alcohol. Immediately following the arrest, the deputy read Christiansen the Implied Consent Advisory. After hearing the advisory, Christiansen indicated that he wished to speak with an attorney and he was transported to the Carver County Jail.

After arriving at the jail, at 10:03 p.m. Christiansen was placed in an interview room with a telephone and a number of phone directories. Christiansen then told the deputy that he was going to contact his girlfriend and have her secure counsel for him. The deputy left the room until 10:23 p.m. Upon his return, Christiansen told him that he was not able to reach his girlfriend but was still trying. The deputy left and then reentered the room at 10:35 p.m. This time Christiansen told him that his girlfriend's line was still busy. The deputy then notified Christiansen that he would have to make the decision regarding the test on his own and Christiansen agreed to take the test. However, he had to wait another 23 minutes until the test could be administered. During this time period, Christiansen was not permitted to make any further attempts to contact anyone. The test ultimately revealed that Christiansen had an alcohol concentration over the legal limit. Christiansen was then read his Miranda rights and he again asked to speak with an attorney. This request was denied because the test had already been administered.

The district court determined that Christiansen's limited right to counsel was vindicated and sustained the revocation of his driver's license. This appeal followed.

D E C I S I O N

Christensen argues that he was not given a reasonable amount of time to contact counsel. The Minnesota Constitution gives a driver a limited right to consult with an attorney before deciding whether or not to submit to chemical testing for alcohol concentration. Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). The right to counsel will be considered vindicated if the driver is provided with a telephone before testing and given a reasonable amount of time to contact and speak with an attorney. Prideaux v. Department of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976). The question of whether a person has been given a reasonable amount of time to consult with an attorney is a mixed question of law and fact. Parsons v. Commissioner of Pub. Safety, 488 N.W.2d 500, 501 (Minn. App. 1992). Establishing the salient historical events is a fact question. Id. However, once those facts are established, their significance becomes a question of law. Id.

When determining whether a person suspected of driving under the influence has been given a reasonable amount of time to contact an attorney, this court considers: (1) whether the driver made a good faith effort to contact an attorney; (2) the time of day when the driver was trying to contact an attorney; and (3) the length of time that the driver has been under arrest. See Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).

The record shows that Christiansen did not make a good faith effort to contact an attorney. It appears that the only person Christiansen attempted to contact was his girlfriend. Even after discovering that her line was busy the record indicates that Christiansen did not attempt to contact anyone else. We conclude that, under these circumstances, Christiansen did not make a good faith attempt to reach counsel. See Parsons, 488 N.W.2d at 502 (driver's limited right to counsel vindicated when driver had access to phone for 40 minutes; the only person that she attempted to contact during that time period was a non-attorney friend who was supposed to contact an attorney for her).

We also determine that, based upon the time of his arrest, Christiansen was given a reasonable amount of time to reach an attorney. He was arrested at 9:00 p.m. and given an opportunity to reach an attorney from 10:03 p.m. until 10:35 p.m. That amount of time was reasonable under these circumstances. See Umphlett v. Commissioner of Pub. Safety, 533 N.W.2d 636, 639 (Minn. App. 1995) (37 minutes at 9:00 p.m. was a reasonable amount of time), review denied (Minn. Aug. 30, 1995); Parsons, 488 N.W.2d at 502 (40 minutes at 1:39 a.m. was a reasonable amount of time).

In addition, the record indicates that Christiansen was tested at 10:58 p.m. following his 9:00 p.m. arrest. As Christiansen was measured within two hours of his arrest, we conclude that the amount of time he was in custody did not affect the probative value of the test.

Thus, we conclude that Christiansen was given a reasonable amount of time to contact an attorney.

Christiansen also argues that he should have been permitted to try to contact an attorney during the 23 minutes between when he agreed to take the test and when it was actually administered. We hold that, due to the limited nature of the right to counsel and the fact that Christiansen had already agreed to take the test, the officer's refusal to permit Christiansen to continue trying to contact an attorney did not violate his limited right to counsel.