may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Daniel Bernard Hedberg, Jr., petitioner,
Commissioner of Public Safety,
Filed February 17, 1998
Chisago County District Court
File No. C4961641
Richard L. Swanson, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN 55318 (for appellant)
Hubert H. Humphrey, III, Attorney General, Sean R. McCarthy, Assistant Attorney General, Suite 200, 525 Park Street, St. Paul, MN 55103-2106 (for respondent)
Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Schumacher, Judge.
Appellant challenges the revocation of his driving privileges, arguing that his right to consult with an attorney was not vindicated. We affirm.
Upon request, an individual has a limited right to obtain legal advice before deciding whether to submit to chemical testing, provided the administration of the test is not unreasonably delayed. Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).
Time is a consideration in determining the issue in this case; the courts also must consider the nature of appellant's opportunities to contact counsel in the time that elapsed. In circumstances like these, we find no authority suggesting that 38 minutes is too little time for vindication of the right to counsel. And time is immaterial if no good faith effort is made to reach an attorney. Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992) (holding that as a threshold matter a driver must make a good faith and sincere attempt to contact counsel), review denied (Minn. Oct. 20, 1992). In this case, appellant fails to show that he made a good faith effort. It is undisputed that he left a message with an attorney and then for the next 30 minutes made no further attempts to reach an attorney. The fact that appellant thereafter made a third call, leaving another message, and then proceeded to wait for an answer, albeit for only two minutes, under the totality of these circumstances only further diminishes the merit of his claim. See Parsons, 488 N.W.2d at 502 (holding that the totality of the circumstances must be considered in determining whether a given amount of time was reasonable). In this case, the trial court properly concluded that "the right to counsel does not mean * * * [I can] say I called, I left a message, and I'm now entitled to wait until they return my phone call."
Dated: February 9, 1998