This opinion will be unpublished and

may not be cited except as provided by

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




Harlon Poppitz, petitioner,



Commissioner of Public Safety,


Filed May 19, 1998


Toussaint, Chief Judge

Carver County District Court

File No. C697152

Douglas T. Kans, Douglas T. Kans & Associates, The Interchange Tower, Suite 1690, 600South Highway 169, Minneapolis, MN 55426 (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 Toussaint, Chief Judge, Foley, Judge,[1] and Mansur, Judge.[2]


TOUSSAINT, Chief Judge

Appellant Harlon F. Poppitz was arrested for driving while under the influence (DUI), after he lost control of his pick-up truck and struck a tree. His driver's license was revoked pursuant to the implied consent law, Minn. Stat. § 169.123 (1996). Poppitz petitioned for judicial review and the trial court sustained the revocation. Poppitz challenges the trial court's order sustaining the commissioner's revocation of his driving privileges. Because the trial court did not err in concluding that Poppitz's limited right to counsel had been vindicated, we affirm.


The question of whether a person has been allowed a reasonable time to consult with an attorney is a mixed question of law and fact. Establishing the historical events is a question of fact. Once those facts are established, their significance becomes a question of law.

Parsons v. Com'r of Pub. Safety, 488 N.W.2d 500, 501 (Minn. App. 1992). When the facts are not in dispute, the only issue on appeal is whether the trial court erred in its application of the law. Id.

Poppitz argues that the trial court erred in concluding that his right to counsel was vindicated prior to submission to chemical testing for his DUI arrest. He contends that he was provided with access to a telephone, but was not given a telephone directory, even though he informed the arresting officer that he did not know any attorneys. Poppitz claims that in order to satisfy the minimum statutory requirements, the arresting officer was required to provide him with access to a telephone and a directory. Poppitz cites us to McNaughton v. Com'r of Pub. Safety, 536 N.W.2d 912, 915 (Minn. App. 1995) in support of his position.

In McNaughton, the arrestee gave the officer the name of an attorney he wished to contact prior to testing. Id. at 914. The officer then attempted to locate the attorney, but gave the dispatcher the wrong name. Id. The arrestee then requested a telephone book. Id. The officer told the arrestee a telephone directory was not available and that the phone arrestee was using would not allow the arrestee to call directory assistance. Id. This court concluded that because the officer refused to provide a telephone directory, as requested, and instead, provided a list of five pre-selected attorneys, McNaughton's right to counsel had not been vindicated. Id. at 915.

Before deciding whether to submit to chemical testing, the Minnesota Supreme Court has recognized the importance of a driver's right to counsel in the implied consent process. Friedman v. Com'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). This right, however, is limited to the extent that it cannot unreasonably delay administration of the test. Id.; Minn. Stat. § 169.123, subd. 2(b)(4) (1996). Relevant factors for consideration include the time of day of the attempted contact and the length of time of the driver's arrest. Kuhn v. Com'r of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1942), review denied (Minn. Oct 20, 1992). Whether the driver was provided with a telephone and telephone directories, and whether the driver was free to call an attorney of his/her own choosing are also factors to be considered. Parsons, 488 N.W.2d at 502; see also McNaughton v. Com'r of Pub. Safety, 536 N.W.2d at 915. A "threshold matter" in evaluating a driver's right to counsel is whether the driver has made "a good faith and sincere effort to reach an attorney." Kuhn, 488 N.W.2d at 842.

Citing to Friedman and Dibb v. Com'r of Pub. Safety, No. CX-97-306 (Minn. App. July 29, 1997), the trial court concluded that although access to a telephone book is a factor to be considered in determining whether an arrestee was given the right to contact counsel; "it is not a prerequisite." The trial court then determined that Poppitz was given unlimited access to a telephone, yet chose to contact his wife instead of an attorney. Concluding that Poppitz's right to counsel had been vindicated, the trial court declined to rescind his license suspension. We agree.

After Poppitz was given the implied consent advisory, he was asked whether he would like to contact an attorney and he replied, "I suppose I should." The record reveals that the arresting officer then provided Poppitz with "unfettered" use of a telephone. During that time he was free to contact an attorney of his own choosing, however, Poppitz called his wife and asked her to contact their family doctor without requesting any information regarding an attorney.

Furthermore, we also observe that Poppitz's reliance on McNaughton is misplaced. We are directed to no evidence to show that Poppitz requested a telephone directory. See Parsons, 488 N.W.2d at 502 (whether a driver was provided with a telephone, telephone directories and freedom to contact an attorney of own choosing are "facts" to consider when determine vindication of the right to counsel). Unlike McNaughton, here, the arresting officer did not limit Poppitz's choice of legal counsel, but instead, provided Poppitz with opportunity to make unlimited telephone calls. Furthermore, even after Poppitz spoke with his wife, he neither attempted, nor expressed any interest in contacting an attorney. Under these circumstances, we conclude that Poppitz's right to counsel was vindicated.


[1] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

[2] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.