Minn. Stat. §480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Commissioner of Public Safety,
Filed January 27, 1998
Traverse County District Court
File No. CX-97-15
Robert V. Dalager, Fluegel, Helseth, McLaughlin, Anderson & Brutlag, Chartered, Atlantic Plaza, 215 Atlantic Avenue, P.O. Box 527, Morris, MN 56267 (for appellant)
Hubert H. Humphrey III, Attorney General, Steven H. Alpert, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for respondent)
Considered and decided by Randall, Presiding Judge, Toussaint, Chief Judge, and Forsberg, Judge.
Appellant contends the district court erred in sustaining the revocation of his driving privileges, arguing he was denied his limited right to counsel under Minn. Const. Art. I, § 6. Appellant's right to counsel was vindicated. We affirm.
After the conversation ended, Plautz asked appellant if he would take the requested test. Appellant refused. As a result, Plautz documented appellant's refusal and the Commissioner of Public Safety revoked his driving privileges. By order dated April 8, 1997, the district court sustained the revocation of appellant's driving privileges, finding appellant was afforded his limited right to consult counsel of his own choosing.
Unless clearly erroneous, factual findings are upheld by this court. Thorud v. Commissioner of Pub. Safety, 349 N.W.2d 343, 344 (Minn. App. 1984). This court has affirmed a district court's order sustaining the revocation of a motorist's driving privileges, despite the lack of specific findings of fact resolving the credibility issue. Umphlett v. Commissioner of Pub. Safety, 533 N.W.2d 636, 639 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995). In Umphlett, this court determined that the district court implicitly found the officer's testimony to be more credible than the driver's testimony, given the district court's resolution of the substantive issue. Id.
Similarly, the district court made no credibility findings in this case. The lack of findings on credibility is not clear error, however, because Plautz's testimony supports the district court's ultimate conclusion that appellant was afforded a reasonable opportunity to consult with an attorney. Id. We may assume the district court implicitly found Plautz's testimony more credible.
2. Legal Issue
Appellant argues his right to counsel was not vindicated because the officer, not appellant, dialed the telephone in an attempt to reach an attorney. We disagree. Appellant's limited right to counsel was vindicated even though Deputy Plautz was in control of dialing the telephone. As a general rule, when the facts are not significantly in dispute, whether a driver is given a reasonable opportunity to consult with counsel is a legal determination which this court reviews de novo. Mulvaney v. Commissioner of Pub. Safety, 509 N.W.2d 179, 181 (Minn. App. 1993) (citing Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992)). Deferring to the district court's findings, we must determine as a matter of law whether appellant's limited right to counsel was vindicated.
Article I, section 6, of the Minnesota Constitution requires "[i]n all criminal prosecutions the accused shall enjoy the right * * * to have the assistance of counsel in his defense." Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 831 (Minn. 1991). The Minnesota Constitution gives drivers a limited right to consult an attorney before deciding whether to submit to chemical testing for alcohol concentration. Id. at 832. In addition, officers are under an obligation to assist 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 v. State, Dep't of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976)). The officer is not, however, under an obligation to make sure the driver has received the best or even proper counsel. Butler v. Commissioner of Pub. Safety, 348 N.W.2d 827, 829 (Minn. App. 1984). "The right to counsel will be 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, 473 N.W.2d at 835 (quoting Prideaux, 310 Minn. at 421, 247 N.W.2d at 394).
An officer does his part in vindicating a driver's right to counsel when, at the request of the driver, an officer contacts an attorney. Butler, 348 N.W.2d at 829. By contrast, a driver's limited right to counsel is not vindicated when the driver is given a list of preselected attorneys, does not have access to telephone books, and cannot personally dial the telephone to contact assistance, family, or friends. McNaughton, 536 N.W.2d at 915.
In this case, the officer did not refuse to allow appellant to use the phone; appellant asked the officer to call certain attorneys. According to Deputy Plautz's testimony, a telephone book was handed to appellant; appellant chose a law firm and asked Plautz to call that firm. When Plautz did not receive an answer, appellant asked Plautz what he should do. Plautz suggested two public defenders and appellant asked Plautz to contact them. When neither defender could be reached, Plautz, once again, handed appellant the phone book. After looking through the phone book, appellant asked Plautz to call another attorney. Therefore, Plautz did all he could to vindicate appellant's right to counsel.
Furthermore, appellant spoke personally with an attorney. As soon as the attorney answered the phone, Plautz handed the phone to appellant, who spoke with the attorney for approximately 11 minutes; appellant had personal access to the phone.
Regardless of the fact that Plautz dialed the phone, he did everything to accommodate appellant. Since the record suggests that appellant's limited right to counsel was vindicated, the district court did not err as a matter of law in sustaining the commissioner's revocation.
[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art VI, § 10.