may not be cited except as provided by
Minn. Stat. §480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Troy Valerian Nathe,
Filed January 5, 1999
Stearns County District Court
File No. K8-97-2236
Michael A. Hatch, Attorney General, Catherine M. Keane, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and
Roger S. Van Heel, Stearns County Attorney, Administration Center, Room 448, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)
Michael L. Samuelson, 925 South First Street, P.O. Box 1735, St. Cloud, MN 56302-1735 (for appellant)
Considered and decided by Peterson, Presiding Judge, Klaphake, Judge, and Anderson, Judge.
Because appellant did not inform officers that he wanted to call his girlfriend for help in consulting an attorney, an officer's statement that appellant could only call an attorney did not violate appellant's due process rights or his Friedman right to counsel. We affirm the district court's order refusing to suppress the results of appellant's Intoxilyzer test.
The Friedman right to counsel may include a reasonable time to contact a family member if a driver communicates to officers that the reason for the call is to obtain an attorney's name and phone number. State v. Karau, 496 N.W.2d 416, 419 (Minn. App. 1993). Absent such a communication, a driver has only the right to consult with an attorney, not any other person. Christiansen, 515 N.W. 2d at 112; Stefano v. Commissioner of Pub. Safety, 358 N.W.2d 83, 85 (Minn. App. 1984).
Here, officers provided appellant with a telephone to contact an attorney. Appellant then told officers that he wanted to call his girlfriend. There is no evidence that appellant communicated to officers that he wanted to call his girlfriend to obtain the name or number of an attorney. Absent some communication by appellant that he was calling his girlfriend for the purpose of identifying an attorney, the officer's response did not interfere with appellant's Friedman right to counsel. See Christiansen, 515 N.W. 2d at 112.
Appellant also argues that his due process rights were violated because the officer misstated the law. Officers comply with state and federal due process when they read the statutory implied consent advisory. Davis, 517 N.W.2d at 904; see also Moe v. Commissioner of Pub. Safety, 574 N.W.2d 96, 99 (Minn. App. 1998) ("Due process does not require implied consent advisory to explain every potentially unclear application of law."), review denied (Minn. Apr. 14, 1998). The advisory requires that officers inform a DWI arrestee of the right to consult with an attorney. Minn. Stat. § 169.123, subd. 2(b)(4) (1996). Officers are not required to inform a DWI arrestee of the right to call a family member for help in consulting an attorney. Christiansen, 515 N.W. 2d at 112. Even if the officer's statement here was an incomplete statement of appellant's rights, it did not violate due process. See id. (holding no due process violation because officers are not required to give any more advice than mandated by law). But see McDonnell v. Commissioner of Pub. Safety, 473 N.W.2d 848, 855 (Minn. 1991) (due process violated when officers threatened criminal charges not authorized by statute).