may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Norris Sowada, petitioner,
Commissioner of Public Safety,
Filed March 23, 1999
Stearns County District Court
File No. C098152
Michael A. Hatch, Attorney General, Max A. Keller, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for respondent)
Considered and decided by Schumacher, Presiding Judge, Short, Judge, and Willis, Judge.
Appellant Norris Edward Sowada challenges the revocation of his driving privileges under Minn. Stat. § 169.123, subd. 4(e) (1996) for refusing to submit to testing, claiming the officer lacked probable cause to arrest him and denied him his right to counsel. We affirm.
Sowada's driver's license was revoked for refusing to submit to a blood alcohol test. He petitioned for reinstatement. At the hearing, arresting Officer Arlan Schermerhorn testified that he received information from a citizen regarding a possible drunk driver. Schermerhorn located and followed a vehicle, which he later learned was being driven by Sowada. Schermerhorn testified he observed Sowada driving about five miles per hour and straddling the fog line. He further testified that Sowada swerved on the road before pulling over with half his car still in the roadway. Schermerhorn then activated his emergency lights and pulled in behind Sowada. Another officer happened to be making a traffic stop nearby and joined Schermerhorn as backup.
Both Sowada and Schermerhorn exited their vehicles. Schermerhorn testified he noticed that Sowada smelled of alcohol, swayed, and had glossy eyes. Sowada stated he had not been drinking and refused to take a portable breath test. Schermerhorn advised Sowada he was under arrest and a struggle ensued. Other officers were called to the scene. It eventually took six officers to subdue Sowada.
Schermerhorn read Sowada the implied consent advisory at the hospital. Sowada asked to speak to a lawyer. Schermerhorn testified that one of the hospital security guards had to assist Sowada in using the phone because he was placed in restraints and his eyesight was impaired from being pepper sprayed. The only call Sowada made was to his wife. He told her to contact an attorney and have the attorney call him back at the hospital.
Sowada had access to the telephone and a directory for about 35 minutes when Schermerhorn told him he would have to decide whether to take a blood or urine test. Sowada refused to take either test, and Schermerhorn invoked the implied consent statute. More than four hours after his arrest, Sowada spoke to his lawyer and thereafter took a blood test at the hospital. The test indicated an alcohol concentration of .00. Sowada's driving privileges were revoked for refusing to submit to testing. The district court sustained the revocation.
1. Sowada claims the officer did not have probable cause to arrest him. A determination of probable cause is a mixed question of law and fact. Clow v. Commissioner of Pub. Safety, 362 N.W.2d 360, 363 (Minn. App. 1985), review denied (Minn. Apr. 26, 1985). This court does not review the question de novo, but looks to see if the officer's belief had a substantial basis that probable cause existed. Heuton v. Commissioner of Pub. Safety, 541 N.W.2d 361, 363 (Minn. App. 1995).
This court will reverse a trial court's findings of fact only if those findings are clearly erroneous. Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987). The trial court's findings are clearly erroneous if the appellate court, "after reviewing the record, reaches the firm conviction that a mistake was made." State v. Kvam, 336 N.W.2d 525, 529 (Minn. 1983). The trial court found that Schermerhorn's testimony was credible. The court found that Sowada's testimony was inconsistent with his actions. We give deference to the trial court's determination of credibility. Thuma v. Kroschel, 506 N.W.2d 14, 18 (Minn. App. 1993), review denied (Minn. Dec. 14, 1993). We conclude the findings are not clearly erroneous.
An officer needs only one objective indicator of intoxication to have probable cause to suspect someone of driving under the influence. Heuton, 541 N.W.2d at 363. A court should grant "great deference" to an officer's probable cause determination. State v. Olson, 342 N.W.2d 638, 640-41 (Minn. App. 1984). Schermerhorn testified that Sowada drove five miles per hour, straddled the fog line, swerved on the road, and parked his vehicle partially in the traffic lane. When he exited his car, Schermerhorn noticed Sowada smelled of alcohol, was swaying, and had glossy eyes. These factors constitute a substantial basis for concluding probable cause existed to arrest Sowada for driving under the influence.
2. The determination of whether an officer vindicated a driver's right to counsel is a mixed question of law and fact. Parsons v. Commissioner of Pub. Safety, 488 N.W.2d 500, 501 (Minn. App. 1992). Once the facts have been established, the application of the law requires de novo review. Id. There are no facts in dispute regarding Sowada's right to counsel.
A driver has a limited right to consult with counsel before deciding whether to submit to testing. Minn. Stat. § 169.123, subd. 2(b)(4) (1998); Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 832 (Minn. 1991). An officer vindicates the driver's limited right if the driver is "provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel." Id. at 835.
Sowada claims Schermerhorn did not vindicate his right to counsel because he was not personally allowed to dial the phone and Schermerhorn did not personally assist him. This court has held in certain circumstances that a driver's right to counsel was not vindicated because he was not allowed to use a telephone personally. See, e.g., McNaughton v. Commissioner of Pub. Safety, 536 N.W.2d 912, 915 (Minn. App. 1995) (driver only allowed to choose from list of five attorneys and not allowed to dial phone himself).
Here, Sowada was allowed access to the telephone and directory and was allowed to call anyone he wished with the assistance of the security guard. The driver does not have to dial the telephone personally to have his rights vindicated. See Gergen v. Commissioner of Pub. Safety, 548 N.W.2d 307, 310 (Minn. App. 1996) (officer vindicated driver's right by providing telephone and directory for 36 minutes, and offering to dial any phone number selected by driver), review denied (Minn. Aug. 6, 1996). Sowada was not restricted to whom he was allowed to call, and he admits he had access to a telephone and assistance to use it.
This court must also determine whether a reasonable time was allowed for Sowada to consult with counsel. In doing so, we may consider whether Sowada made a "good faith and sincere effort to reach an attorney." Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). Sowada was given 35 minutes. In those 35 minutes, he made one phone call. See Parsons, 488 N.W.2d at 501-02 (adequate time allowed where driver asked friend to contact lawyer for her, then waited 20 minutes for return call); Gergen, 548 N.W.2d at 309-10 (driver had reasonable time where he made only one unsuccessful attempt to call attorney in 36 minutes). We conclude that Sowada was given a reasonable time to consult an attorney.
Another factor we consider is how much time had elapsed between an arrest and the officer's request for a decision. Kuhn, 488 N.W.2d at 842. In this case, Sowada had been under arrest for almost two hours when Schermerhorn requested him to make a choice. We conclude that Schermerhorn's request to make a choice was reasonable.