may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Theresa Marie Campbell, petitioner,
Commissioner of Public Safety,
Filed August 19, 1997
Ramsey County District Court
File No. C1-96-7226
Hubert H. Humphrey III, Attorney General, Jeffrey S. Bilcik, Jeffrey Lebowski, Assistant Attorneys General, 525 Park St., Suite 200, St. Paul, MN 55103 (for respondent)
Considered and decided by Huspeni, Presiding Judge, Kalitowski, Judge, and Thoreen, Judge.[*]
Appellant challenges the trial court's order sustaining the revocation of her driving privileges under Minn. Stat. § 169.123 (1996). Because the trial court did not err in determining that appellant's right to counsel was vindicated, we affirm.
Appellant made four calls to numbers in the directory, but failed to receive an answer at any of them. She left messages at the first three numbers, but hung up without a message at the fourth. While appellant was making her calls, the officer reminded her at five minute intervals of how much time remained.
At 7:58 p.m. the officer asked appellant to make a decision. She agreed to take the test, which indicated an alcohol concentration of .10. Her driving privileges were revoked, and she petitioned for reinstatement. The trial court sustained the revocation. The court concluded that although appellant made a "good faith and sincere effort to reach an attorney," the officer vindicated her limited right to counsel.
[A]ny person who is required to decide whether he will submit to a chemical test * * * shall have the right to consult with a lawyer of his own choosing before making that decision, provided that such a consultation does not unreasonably delay the administration of the test. The person must be informed of this right, and the police officers must assist in its vindication. * * * If counsel cannot be contacted within a reasonable time, the person may be required to make a decision regarding testing in the absence of counsel.
Id. (citing Prideaux v. State, Dep't of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976)) (emphasis added). This limited right to counsel is satisfied if police provide a DWI arrestee with a telephone and reasonable time to contact an attorney before deciding whether to submit to chemical testing. Commissioner of Pub. Safety v. Campbell, 494 N.W.2d 268, 269 (Minn. 1992) (citing Prideaux, 310 Minn. at 421, 247 N.W.2d at 394).
Once the facts are established, it is a question of law as to whether a driver was accorded a reasonable opportunity to consult with counsel. Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).
In determining whether an officer provided a driver with a reasonable amount of time to contact an attorney, this court looks to a number of considerations. Id. at 842. Focus is placed on the officer's duties in vindicating the right to counsel and the driver's diligence in exercising this right. Id. As a threshold matter, the driver must make a good faith and sincere effort to reach an attorney. Id. Second, the court may also look to the time of day and consider the difficulty in contacting an attorney. Id. Third, the court may consider the length of time the driver had been under arrest. Id. The longer the driver has been detained, the lower the potential probative value of the test because of the evanescent nature of alcohol. Id.
Appellant contends the trial court erred in determining that her right to counsel was vindicated because the officer did not provide her with a reasonable amount of time. She argues that the prompting by the officer every five minutes and the fact that she was told about an outstanding bench warrant created a frantic situation so as to interfere with her attempts to contact counsel. Although we recognize the very tense nature of the situation here, we also note that the implied consent situation is understandably tense for any driver. We agree with the trial court that the officer vindicated appellant's limited right to counsel.
The fact that the trial court found that appellant made a good faith and sincere effort to seek counsel does not serve to permit appellant unlimited time to continue that effort. Appellant was not on the telephone the entire period of time and was able to receive any returned calls. It was not a particularly difficult time of day to reach an attorney. An hour had elapsed since the stop of appellant's vehicle, and we are mindful of the evanescent nature of alcohol in the bloodstream. Under the Kuhn factors, we conclude that the amount of time given under the circumstances in this case was reasonable and that appellant's limited right to counsel was vindicated.
[ ]* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.