This opinion will be unpublished and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

C2-95-2594

Sandra Lee Barton,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Beltrami County District Court

File No. CX-95-1139

Filed

June 4, 1996

Affirmed

Toussaint, Chief Judge

Darrell G. Carter, 410 Minnesota Avenue, P.O. Box 875, Bemidji, MN 56601-0875 (for appellant)

Hubert H. Humphrey, III, Attorney General, Joel A. Watne, Assistant Attorney General, 500 Capitol Office Building, 525 Park Street, St. Paul, MN 55103-2106 (for respondent)

Considered and decided by Toussaint, Chief Judge, Klaphake, Judge, and Willis, Judge.

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

TOUSSAINT, Chief Judge

Sandra Lee Barton appeals the district court's decision that her conduct constituted a refusal to take the intoxilyzer test and that her limited right to consult with counsel was vindicated. We affirm. [1]

DECISION

I.

Whether one has refused testing is a question of fact. Lynch v. Commissioner of Pub. Safety, 498 N.W.2d 37, 38 (Minn. App. 1993). On appeal, a district court's factual findings will not be disturbed unless clearly erroneous. Id. at 39. A finding of fact is clearly erroneous only if, after a review of the entire record, a reviewing court is left with the definite and firm conviction that a mistake has been made. Novak v. Northwest Airlines, Inc., 525 N.W.2d 592, 597 (Minn. App. 1995).

The district court found that Barton's belligerent behavior while the officer attempted to read her the implied consent advisory constituted a refusal to take the intoxilyzer test and that the officer's decision to terminate the procedure was proper. Barton argues that this finding was erroneous because the officer failed to follow the accepted procedure due to her insistence on having counsel present. We are not persuaded by this argument.

A review of the record reveals that Barton's uncooperative behavior hindered the officer's attempt to complete the reading of the implied consent advisory. A videotape of the incident indicates that Barton refused to listen to the implied consent advisory unless she could have an attorney present. Indeed, at one point she actually placed her hands over her ears and said that she would not listen to the officer's recitation of the advisory or anything else he had to say.

This truculent and uncooperative behavior frustrated the officer's attempt to read the implied consent advisory and allowed the officer to reasonably conclude that Barton refused to take the intoxilyzer test. Cf. Holtz v. Commissioner of Pub. Safety, 340 N.W.2d 363 (Minn. App. 1993) (holding that an officer properly stopped reading the implied consent advisory and determined that the driver refused testing when the driver remained silent in response to questions about whether he understood his rights). The district court's findings are not clearly erroneous.

II.

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 driver must be informed of this right, and the police officer must assist in its vindication. Id. The right to counsel will be considered vindicated if the person is provided with a telephone prior to testing and is given a reasonable amount of time to contact and speak with counsel. Id. 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 historical events is a question of fact. Id. Once those facts are established, their significance becomes a question of law. Id.

Barton argues that her right to counsel was not vindicated because the officer did not permit her to have counsel present during this time period. She asserts that she required the answer to a legitimate question of law; because the officer did not explain that physical control of the car was sufficient to require her to submit to an alcohol concentration test. She also asserts that allowing her to have an attorney present to answer her questions would not have unreasonably delayed the testing procedure. We find these arguments unpersuasive.

Our focus is both on the officer's duties in vindicating the limited right to counsel and the defendant's diligent exercise of the right. Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 841 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). Here, the videotape portion of the record shows that the officer attempted to complete the implied consent advisory and that he informed Barton that she would be permitted to speak with an attorney after he completed the advisory, Barton, however, made it clear that she would not cooperate with the arresting officer unless there was an attorney present. Under these circumstances we conclude that the officer reasonably attempted to vindicate Barton's right to counsel and that her behavior frustrated the officer's attempts to assist.

In addition, because the recitation of the implied consent advisory and testing are not a custodial interrogation a driver does not possess the right to have counsel present during either of these procedures. Cf. McDonnell v. Commissioner of Pub. Safety, 473 N.W.2d 848 (Minn. 1991) (holding that a Miranda warning is not required because a request to undergo testing does not constitute interrogation but is merely attendant to arrest and custody); see also Sturgeon v. Commissioner of Pub. Safety, 350 N.W.2d 487 (Minn. App. 1984) (holding that although a driver has the right to consult with counsel before taking the test, there is no right to have counsel present during the test itself). Therefore, because Barton insisted on exercising a right that does not exist under Minnesota law. We hold that Barton's limited right to counsel was vindicated in this case.

Affirmed


Footnotes

[1]This appeal is construed from the November 14, 1995 order, not the November 27, 1995 judgment. See Kelly v. Kelly, 371 N.W.2d 193, 195 (Minn. 1985) (holding that notices of appeal are to be liberally construed in favor of their sufficiency).