may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Toni Marie Dibb, petitioner,
Commissioner of Public Safety,
Filed July 29, 1997
Stearns County District Court
File No. C6964296
Hubert H. Humphrey, III, Attorney General, Joel Watne, Peter R. Marker, Assistant Attorneys General, 525 Park Street, Suite 200, St. Paul, MN 55013 (for respondent)
Considered and decided by Lansing, Presiding Judge, Short, Judge, and Foley, Judge.[*]
A trial court sustained the revocation of Toni Marie Dibb's driving privileges under Minn. Stat. § 169.123. On appeal, Dibb argues the arresting police officer failed to vindicate her limited right to counsel. We affirm.
D E C I S I O N
Whether a driver's right to counsel has been vindicated is a mixed question of law and fact. See Parsons v. Commissioner of Pub. Safety, 488 N.W.2d 500, 501 (Minn. App. 1992) (concluding question whether driver was allowed reasonable time to consult with attorney is issue of both law and fact). Establish merit of historical events presents a question of fact. Id.; see Minn. R. Civ. P. 52.01 (providing trial court's findings of fact must not be set aside unless clearly erroneous, giving due regard to court's opportunity to judge witness credibility). Once the facts are established, their significance becomes a question of law for de novo review. See Gergen v. Commissioner of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996) (concluding issue whether driver's right to counsel was vindicated is question of law when facts are undisputed), review denied (Minn. Aug. 6, 1996).
Pursuant to Minn. Const. art. I, § 6, an individual has a limited right, upon request, to obtain legal advice before deciding whether to submit to chemical testing, provided the consultation does not unreasonably delay administration of the test. Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). A driver must be informed of this right, and a police officer must assist in its vindication. Id. (quoting Prideaux v. State, Dept. of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (Minn. 1976)).
Dibb argues the arresting officer failed to assist in the vindication of her limited right to counsel. However, the record demonstrates: (1) the officer read the statutory implied consent advisory to Dibb in full; (2) Dibb vacillated as to whether she wished to telephone her mother; (3) when Dibb asked the officer what an attorney would "more than likely" tell her to do, he responded that an attorney would more than likely advise Dibb to take the test; (4) Dibb questioned the officer concerning the consequences of refusal, and the officer told her one consequence would be the loss of her driving privileges for one year; (5) when the officer asked Dibb to clarify whether she wished to telephone her mother or an attorney, Dibb responded in the negative; (6) Dibb mentioned she knew an attorney but did not know his home telephone number; (7) the officer asked whether Dibb wished to take the test without speaking to counsel or her mother, and Dibb answered, "I guess so"; and (8) Dibb did not request a telephone or telephone directory. Given these facts, the trial court did not clearly err in finding that Dibb was aware of her right to counsel, but did not wish to exercise it. See Butler v. Commissioner of Pub. Safety, 348 N.W.2d 827, 829 (Minn. App. 1984) (noting law requires only that officer allow and facilitate driver's right to counsel, not that officer ensure that driver receives proper counsel).
Dibb also argues the officer's failure to inform her fully of the consequences of failing a breath test renders the test invalid. However, police officers are under no duty to give advice regarding the implied consent law beyond that required by statute. State v. Gross, 335 N.W.2d 509, 510 (Minn. 1983); see Friedman, 473 N.W.2d at 833 (recognizing attorney, not police officer, is appropriate source of legal advice). Furthermore, the officer's statement that an attorney would probably tell Dibb to take the test, and his responses to Dibb's general questions regarding the consequences of taking or refusing the test, did not improperly influence her decision. See Nyflot v. Commissioner of Pub. Safety, 369 N.W.2d 512, 517 n.3 (Minn.) (stating an attorney cannot ethically advise a client to refuse administration of a chemical test for alcohol), appeal dismissed, 474 U.S. 1027 (1985); Eveslage v. Commissioner of Pub. Safety, 353 N.W.2d 623, 627 (Minn. App. 1984) (approving officer's responses to similar questions). Under these circumstances, we conclude the officer informed Dibb of her right to counsel and attempted to vindicate that right. Therefore, the trial court properly sustained the revocation of Dibb's driving privileges.
[ ] * Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.