This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-96-2286

Vernon Allen Lange, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed April 15, 1997

Affirmed

Klaphake, Judge

Wright County District Court

File No. C9-96-1712

Richard L. Swanson, 1059 Stoughton Avenue, Post Office Box 85, Chaska, MN 55318 (for Appellant)

Hubert H. Humphrey, III, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for Respondent)

Considered and decided by Willis, Presiding Judge, Randall, Judge, and Klaphake, Judge.

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

KLAPHAKE, Judge

Appellant Vernon Allen Lange challenges the revocation of his driver's license under the implied consent law. Because appellant was properly seized by the arresting deputy sheriff and because appellant's right to counsel was vindicated, we affirm.

D E C I S I O N

1. Improper Seizure Claim

On June 7, 1996, an unidentified woman informed Wright County Deputy Sheriff Scott Tillman that she had observed a male "drunk" in a red pickup truck in a ditch in front of the Montrose VFW. Tillman proceeded immediately to the VFW and confirmed the informant's observations. As Tillman approached appellant's pick-up truck, appellant got out of the truck. Prior to any verbal communication with appellant, Tillman noticed a strong odor of alcohol emanating from appellant and that appellant's eyes were "really watery." Appellant was arrested for DWI after performing field sobriety tests.

We conclude that appellant was properly seized in this case. Tillman had only approached appellant's vehicle at the VFW when appellant got out of it. Tillman's uncontroverted testimony was that he was aware of appellant's intoxicated condition before they ever exchanged a word. See State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980) (officer's walking up to parked car and talking to driver not a "seizure"). After Tillman noticed indicia of intoxication, appellant's seizure was proper.

Appellant claims that Tillman improperly relied on the informant's tip because the informant provided no support for her conclusive statement that appellant was drunk. While a tip from a private informant regarding improper driving conduct may provide a police officer with the basis for an investigatory stop or seizure, the informant must provide sufficient factual information showing the basis for the stop. See State v. Davis, 393 N.W.2d 179, 181 (Minn. 1986). Without such factual information, police may be asked to make an improper investigatory seizure "on the whim of an anonymous caller." Id. Because we have concluded that Tillman had an independent reason for seizing appellant, the informant's tip was not necessary to support the seizure. Even if Tillman had approached appellant without an objective basis for suspecting criminal activity, appellant provided Tillman with that basis before appellant was seized. We also note that in the normal exercise of a police officer's duties, the officer has the authority to investigate a vehicle that has been driven into a ditch.

2. Right to Counsel Claim

Under the Minnesota Constitution, a person's Sixth Amendment right to counsel attaches when the person is asked to submit to alcohol concentration testing under the implied consent law. See Minn. Const. art. I, § 6; Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 833 (Minn. 1991). 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." Prideaux v. State, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976), quoted in Friedman, 473 N.W.2d at 835. When the facts are undisputed, whether a person has been afforded a reasonable time in which to contact an attorney is a question of law. See Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).

We agree with the trial court's conclusion that appellant was afforded a "reasonable time" to contact an attorney. Tillman allowed appellant approximately 25 minutes to contact an attorney, during which time he made two to four calls, but also sat passively and mumbled. See id. at 842 (reasonableness of time based not only on elapsed minutes, but on driver's diligence in seeking attorney). Additionally, as more than an hour had elapsed between his arrest and testing, the police had an interest in ensuring that appellant made a timely choice. See Parsons v. Commissioner of Pub. Safety, 488 N.W.2d 500, 502 (Minn. App. 1992) (court recognized evanescent nature of evidence and public interest in efficient use of police time). Finally, appellant began attempting to contact attorneys at 10:08 p.m., presumably when attorneys are readily available to potential clients. Cf. Kuhn, 488 N.W.2d at 842 (attorneys presumably not readily available in early hours of morning). Because appellant's right to contact and consult with an attorney was vindicated, revocation of his driver's license was proper.

Affirmed.