This opinion will be unpublished and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

CX-95-2181

State of Minnesota,

Respondent,

vs.

Luis Desiderio Sacta,

Appellant.

Filed June 11, 1996

Affirmed

Amundson, Judge

Hennepin County District Court

File No. 95002543

Hubert H. Humphrey, III, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101, Surrell Brady, Minneapolis City Attorney, Laufele Murphy, Jr., Assistant Minneapolis City Attorney, 300 Metropolitan Centre, 333 South Seventh Street, Minneapolis, MN 55402 (for Respondent)

Margaret A. Skelton, 1401 West 76th Street, Richfield, MN 55423, Kelly Vince Griffitts, Suite 1000 Circle K, Box 216, Shakopee, MN 55379 (for Appellant)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Amundson, Judge.

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

AMUNDSON, Judge

Luis Sacta challenges the district court's order denying his motion to suppress the results of his chemical test, arguing that he was denied the right to consult with an attorney before testing and that his right to equal protection was violated. We affirm.

FACTS

On January 10, 1995, appellant Luis Sacta's car slid off the road at 35W northbound near the Highway 62 intersection. Sacta explained to the officer who arrived on the scene that he had been coming around the curve and tried to brake for a vehicle in front of him when he lost control of his vehicle, spun up on the curb, and hit a light pole.

The officer noted in his report, which constituted the stipulated facts before the district court, that he detected a strong odor of "an alcoholic beverage on the subject's breath." He also noticed that his "speech was slurred and thick-tongued even though he did have a heavy Spanish accent." The officer proceeded to check Sacta for all six indicators of impairment and administered a preliminary breath test, which Sacta failed.

The officer began to read the implied consent advisory, but Sacta indicated that he had difficulty understanding it. The officer attempted to explain what the advisory was and that he was going to ask him to take a test. "At that point he [Sacta] voluntarily said that he wished to take a test. I then asked him if he would take a blood test and he said, `Yes.' I did not complete the Implied Consent Advisory."

Sacta moved to suppress the results of the blood test, which showed a blood alcohol content of .14. The district court denied the motion, and Sacta was found guilty of the misdemeanor offense of driving under the influence of alcohol. This appeal followed.

D E C I S I O N

I. Right to Counsel Before Chemical Testing

Sacta contends that he was denied his right to consult with an attorney before deciding whether to submit to chemical testing and that the results of the chemical test should have been suppressed.

When this court is reviewing a trial court's decision not to suppress evidence, if the facts are not disputed, this court may review the facts independently and determine whether the evidence need be suppressed as a matter of law. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).

Under the Minnesota Constitution, a driver has a limited right to consult with an attorney before deciding whether to submit to chemical testing. Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). An officer's request for a chemical test constitutes a critical stage in the criminal process and a "`ticket or tab charge' is the functional equivalent of a complaint in a DWI setting." Id. at 837.

This court, however, has recently stated that the right to counsel "does not attach until the commencement of formal judicial proceedings, or until the driver faces a critical decision regarding chemical testing." State v. Nielson, 530 N.W.2d 212, 215 (Minn. App. 1995), review denied (Minn. June 14, 1995) This court noted that in that case, chemical testing "was merely an investigatory stage which necessarily preceded the decision to prosecute." Id.

The right to counsel attached in Friedman because the implied consent law had changed to reclassify the traditional criminal offense as a civil one and imposed severe sanctions before a jury trial and without benefit of counsel. Id. The right to counsel attaches under the Minnesota Constitution only in "`those pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel.'" Id. (quoting Friedman, 473 N.W.2d at 833).

Sacta contends that his inability to consult with counsel before deciding to take a chemical test impaired his defense on the merits because only an attorney would advise him of his right to an additional test.

However, because the implied consent advisory was never invoked, and the request for a chemical test occurred at an investigatory stage in a criminal prosecution, Sacta's constitutional right to counsel had not attached, and the officer was not obligated to inform him of this right. See Nielson, 530 N.W.2d at 215.

We recognize that, under Nielson, there is the potential for police officers to require a chemical test and never even attempt to invoke the implied consent advisory. Although the possibility of such an abuse concerns us, we are obligated to follow the law set forth by Nielson and thus affirm the district court's decision to admit the results of Sacta's chemical test.

II.Equal Protection

Sacta contends that the officer's failure to inform him of his right to counsel violated his right to equal protection because, he claims, the officer singled out an individual for whom English is a second language. The basis for this argument is Sacta's contention that the officer did not read the implied consent advisory because Sacta spoke with a heavy Spanish accent and indicated that he did not understand much about the implied consent advisory.

Although the officer noted in his report that Sacta spoke with a heavy Spanish accent, he did not indicate that Sacta was unable to understand English. In fact, during the initial portion of the investigation, Sacta and the officer communicated about the accident without any apparent difficulty. Sacta did not tell the officer he had difficulty with English and did not request an interpreter. Thus, Sacta has failed to demonstrate that he was treated disparately because English is his second language, and his equal protection claim must fail.

Affirmed.