This opinion will be unpublished and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

C4-96-985

State of Minnesota,

Respondent,

vs.

Kenneth Vincent Roll,

Appellant.

Filed November 5, 1996

Reversed

Amundson, Judge

Mille Lacs County District Court

File No. K1931044

Hubert H. Humphrey, III, Attorney General, Suite 1400, NCL Tower, St. Paul, MN 55101; Steven A. Anderson, City Attorney, Arnold, Anderson & Dove, P.L.L.P., 510 South Fourth Street, Princeton, MN 55371 (for respondent)

John M. Stuart, State Public Defender, Susan J. Andrews, Assistant State Public Defender, 2829 University Avenue, S.E., #600, Minneapolis, MN 55414 (for Appellant)

Considered and decided by Randall, Presiding Judge, Amundson, Judge, and Foley, Judge.[*]

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

AMUNDSON, Judge

Appellant Kenneth Roll challenges the judgment of conviction, contending that the results of the Intoxilyzer test should have been suppressed because his right to counsel was not vindicated. We reverse.

FACTS

On December 21, 1993, appellant Kenneth Roll was arrested for driving under the influence. Roll was taken to Mille Lacs County jail, read the Implied Consent Advisory, and asked if he wanted to consult with an attorney. Roll responded that he did. The officer asked Roll for the name of his attorney, and Roll stated that he did not have an attorney. The officer then asked Roll for the telephone number of an attorney, and Roll said that he did not have a number and he wanted to call his mother. The officer refused to allow Roll to call his mother and again asked him if he wanted to consult with an attorney. Roll then jokingly told the officer that his mother was an attorney. The officer did not believe him and asked Roll again if he wanted to talk to an attorney. The officer testified that, at that point, Roll stated that "he was going to get screwed anyway, that he had had it, that his life was ruined, that the State would have to pay for an attorney because he didn't have any money." Roll then agreed to take a breath test.

The officer also testified that, throughout the process, Roll was uncooperative and made threatening remarks to the officers. However, the officer did not provide Roll with a phone or phone book to allow him to look for an attorney. The officer testified that the phone was there, but he also stated that "I didn't lead him down the path saying: here is a phone book; here is a phone."

In addition, the record indicates that a list of attorneys was posted on the wall next to a phone in the hallway, outside the room Roll was in, but there is no indication that Roll was ever informed about that list. Roll testified that a phone was never made available to him and he was never shown the list of attorneys in the hallway.

One of the officers further testified that there were phone books in the room with Roll, but the sheriff's deputy testified that he wasn't sure if the phone books were visible to Roll. One of the jailers further testified that Roll was told about the possibility of using phone books, but stated that Roll declined. The other officers did not recall if phone books were offered. The entire process lasted two or three minutes.

Roll's motion to suppress the results of the Intoxilyzer was denied, as was his motion for reconsideration. Roll was convicted and sentenced to one year in jail. This appeal followed.

D E C I S I O N

Roll contends that the results of the Intoxilyzer should have been suppressed because his right to counsel was not vindicated.

The determination of whether an officer vindicated a driver's right to counsel is a mixed question of law and fact. Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). Once the facts are established, this court makes a legal determination as to whether the defendant "was accorded a reasonable opportunity to consult with counsel based on the given facts." Id.

Roll argues that the officer failed to vindicate his right to counsel because he refused to allow Roll to call his mom. Roll contends that he told the officer he wanted to call his mom to get the name of her attorney.

A driver should be allowed to contact a parent to obtain "the name and telephone number of an attorney" if making such a call "would not unreasonably delay the administration of the test." State v. Karau, 496 N.W.2d 416, 417 (Minn. App. 1993). The crucial element, however, is that the driver explicitly tell the officer that the purpose of the call is to obtain the name of an attorney. State v. Christiansen, 515 N.W.2d 110, 113 (Minn. App. 1994), review denied (Minn. June 15, 1994).

The record indicates that, although Roll testified he told the officers he wanted to call his mother to get the name of an attorney, all of the officers testified that Roll only asked to call his mother and did not state that the purpose of the call was to obtain the name of an attorney. In light of the testimony, we cannot conclude that the trial court made a mistake in finding the testimony of the officers credible. See State v. Kvam, 336 N.W.2d 525, 529 (Minn. 1983) (a trial court's finding is clearly erroneous if the appellate court, "after reviewing the record, reaches the firm conviction that a mistake was made").

Although Roll does not raise any other issues, the record indicates that he was provided with a telephone and that he was given two to three minutes to contact an attorney. We consider these issues because, as an appellate court, we "may review any other matter as the interest of justice may require." Minn. R. Civ. App. P. 103.04.

A driver's right to counsel is considered vindicated "'if the person is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.'" Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991) (quoting Prideaux v. State, Dept. of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976)).

The determination of whether a driver has been given a reasonable time is not made based on the number of minutes alone. Kuhn, 488 N.W.2d at 842. The driver must make a good faith effort to reach an attorney. Id. However, the officer must assist the driver in the vindication of this right to counsel. McNaughton v. Commissioner of Pub. Safety, 536 N.W.2d 912, 914 (Minn. App. 1995) (citing Prideaux, 310 Minn. at 421, 247 N.W.2d at 394). This assistance includes providing the driver with a telephone, telephone directory, and a reasonable time to contact an attorney. Id. at 915.

The trial court found that Roll had not made any attempt to contact an attorney and that Roll's attitude was "one of resistance and hostility," which indicated that "he failed to make a sincere effort to assert his rights."

Although the record indicates that Roll was uncooperative with the officers after his arrest, it is impossible to conclude that he failed to make a good faith effort to contact an attorney if he was never provided with a phone or phone books. See Mulvaney v. Commissioner of Pub. Safety, 509 N.W.2d 179, 182 (Minn. App. 1993) (finding a determination of whether a driver makes a good faith effort is impossible if the driver is not given an opportunity to use the phone).

The transcript indicates that Roll was never directly provided with a phone. As the trial court noted, there was a phone in the hallway outside the booking room, but nothing in the record indicates that Roll was told of the existence of that phone. The record also indicates that Roll was not given phone books or a list of attorneys. One of the officers testified that an offer of phone books was made, but the other officers could not recall. Another officer testified that there were phone books in the booking room, but he was uncertain if they were visible to Roll. The arresting officer assisted Roll by asking, for a period of two to three minutes, if he had the name or number of an attorney, to which Roll continually answered "no." Under the circumstances of this case, we conclude that Roll's right to consult with an attorney before taking a test was not vindicated.

Reversed.

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