may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
Chad Michael Bennett, petitioner,
Commissioner of Public Safety,
Filed May 18, 1999
Stearns County District Court
File No. C698527
Mike Hatch, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for respondent)
Considered and decided by Peterson, Presiding Judge, Davies, Judge, and Halbrooks, Judge.
Appellant Chad Michael Bennett seeks review of the district court's order sustaining the revocation of his driving privileges under the implied consent law, alleging his limited right to counsel was not vindicated. Because we conclude appellant was given reasonable time to contact an attorney of his choice, we affirm.
On January 16, 1998, St. Cloud Police Officer Bentrud arrested appellant Chad Michael Bennett for driving under the influence of alcohol. Bentrud read appellant the implied consent advisory, after which appellant indicated that he wished to speak to an attorney. Bentrud then transported appellant to the St. Cloud Police Department.
Upon their arrival at the department at 1:25 a.m., Bentrud allowed appellant to use a free telephone to contact an attorney. Appellant made several phone calls. He called his mother to arrange for a ride home and left messages with several attorneys. During the time he was not making calls, appellant asked Bentrud and other deputies numerous questions about when he would be released. He was repeatedly reminded to spend his time more wisely by attempting to contact an attorney.
At 1:50 a.m., after 25 minutes, Bentrud asked appellant if he was ready to take a breath test. Appellant replied that he was waiting for a return call from an attorney. Bentrud told appellant he could have ten more minutes. Appellant did not attempt any more calls. At 2:05 a.m., Bentrud again asked appellant whether he was ready to take a breath test. Appellant consented. Bentrud asked appellant whether he had sufficient time to contact an attorney, and appellant replied he had. Appellant submitted to the breath testing, which indicated an alcohol concentration of .10 or more, and his driver's license was revoked pursuant to Minn. Stat. § 169.123, subd. 4(e) (1998).
A driver has a limited right to counsel before deciding whether to submit to chemical testing. Minn. Const. art. I, § 6; Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). That right is vindicated when the driver is provided a telephone and given reasonable time to contact and speak with an attorney. Gergen v. Commissioner of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996). The determination of a "reasonable time" may not be decided solely based on the time elapsed, but rather must be decided based on the totality of the facts. Parsons, 488 N.W.2d at 502. Relevant factors include: (1) whether the driver made a good-faith and sincere effort to contact an attorney; (2) what time of day the driver was attempting to contact an attorney; and (3) how long the driver was under arrest. Kuhn, 488 N.W.2d at 842.
Appellant first contends he was not given reasonable time to contact an attorney because the phone went dead at some point while he was attempting calls. The district court found that appellant was given 35 minutes to make calls. That finding corresponds with Bentrud's testimony that appellant was given access to the phone at 1:25 a.m., was asked if he was finished at 1:50 a.m., and was then given an additional 15 minutes before he was asked again to submit to testing. Bentrud testified appellant never mentioned anything to him about the phone going dead and did not attempt any calls after 1:50 a.m. In light of the district court's finding that appellant was able to use the phone for the entire 35-minute period, it is clear the court did not credit appellant's testimony. This court gives due regard to the district court's credibility determinations. Thorud v. Commissioner of Pub. Safety, 349 N.W.2d 343, 344 (Minn. App. 1984). The district court's finding is supported in the record and is not clearly erroneous.
Appellant also asserts the total amount of time he was given to contact an attorney was unreasonable. But Bentrud testified, and the district court found, that appellant attempted no calls after 1:50 a.m., but instead just waited for a return call. "[G]iving up trying to contact an attorney is fundamentally different than making a continued good-faith effort to reach an attorney." Kuhn, 488 N.W.2d at 841.
A driver cannot be permitted to wait indefinitely for a call that may never come, and an officer must be allowed to reasonably determine that the driver has had enough time.
Palme v. Commissioner of Pub. Safety, 541 N.W.2d 340, 345 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996). The driver is required to make a good-faith effort as a threshold matter. Kuhn, 488 N.W.2d at 842. Because appellant ceased efforts to contact an attorney, his right to consult with counsel was vindicated. See id. at 841-42 (explaining that a driver's right to counsel is vindicated when the driver chooses to stop calling).
Furthermore, appellant told Bentrud that he had enough time to contact an attorney prior to consenting to the breath test. Although appellant argues he was not in a position to ask for additional time, he did not have to ask--Bentrud asked him. We do not believe vindication of a driver's limited right to counsel requires police to give a driver additional time to make calls when the driver has ceased attempting calls and tells the police he has had enough time.
Finally, appellant's contention that he was in need of additional time due to his disability is not persuasive. Appellant is missing three fingers on his right hand. The record demonstrates appellant made 6 or 7 calls over a 25-minute period and made no calls over the last 10 minutes of his time. At no time did appellant tell the officer his disability had an adverse effect on his ability to use the phone or the telephone book. Further, Bentrud testified appellant spent only approximately five minutes using the telephone. Although his disability may have made it more difficult for appellant to make calls, he did not attempt to use the time he was given. Thus, his disability did not require the grant of additional time.
Opportunity to Choose Attorney
Appellant also argues his right to counsel was not vindicated because there were pages torn from the telephone directory--limiting his ability to choose his own attorney. "[A]ny person who is required to decide whether he will submit to a chemical test * * * shall have the right to consult with a lawyer of his own choosing * * * ." Friedman, 473 N.W.2d at 835 (quoting Prideaux v. Commissioner of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976)).
There was a conflict in testimony over whether appellant was provided a separate telephone book or was only able to use the telephone book attached to the pay telephone approximately five feet away from the free telephone. The district court found Bentrud handed appellant a telephone book, crediting Bentrud's testimony. See Thorud, 349 N.W.2d at 344 (stating due regard is given to the district court's ability to judge witness credibility). The court further acknowledged appellant's testimony that he made no request for a different telephone book, did not complain about missing pages, and did not request any assistance.
A police officer is required to assist a driver in the vindication of his right to counsel. McNaughton v. Commissioner of Pub. Safety, 536 N.W.2d 912, 914-15 (Minn. App. 1995). But an officer cannot be required to guess which difficulties a silent driver is having or may allege at a subsequent hearing. Even if the district court had credited appellant's testimony regarding the missing pages, appellant did not allow Bentrud to assist him because he did not inform him of the alleged missing pages. On this record, we cannot conclude appellant was denied the right to contact an attorney of his choice.