STATE OF MINNESOTA
IN COURT OF APPEALS
Dean Neil Thompson, petitioner,
Commissioner of Public Safety,
Filed September 14, 1999
Washington County District Court
File No. C7-98-6165
Avery L.E. Appelman, Allan H. Caplan and Associates, P.A., 525 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)
Mike Hatch, Attorney General, Sheila M. Fitzgerald, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for respondent)
Considered and decided by Klaphake, Presiding Judge, Anderson, Judge, and Halbrooks, Judge.
Appellant challenges the district court's rejection of his implied consent petition to rescind the revocation of his driver's license for refusing the Intoxilyzer test. Because appellant was afforded a reasonable amount of time to speak with his attorney, we affirm.
After hanging up, the officer again asked appellant if he would submit to a breath test. After the officer clarified the implied consent advisory for a second time, appellant asked again to speak with his attorney. The officer denied the request, explaining at district court that: "I felt that I had given him an adequate amount of time to speak with his attorney. He was on the phone for approximately twelve minutes." After a final test request, the officer accepted appellant's failure to respond as a refusal.
On appeal, appellant raises two challenges to the district court's rejection of his implied consent petition to rescind revocation of his driver's license: first, appellant argues that the police officer's interruption of his phone call violated his right to counsel; second, appellant argues that a further violation of his right to counsel occurred when the police officer denied him his right to re-contact counsel.
Generally, a driver has a right to counsel in the implied consent setting before submitting to chemical testing. Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). But the right to counsel is "limited to the extent that it cannot unreasonably delay administration" of the chemical testing. Minn. Stat. § 169.123, subd. 2(b)(4) (1998). The supreme court has justified balancing these competing objectives on the ground that the "the evanescent nature of the evidence in DWI cases requires that the accused be given a limited amount of time in which to contact counsel." Friedman, 473 N.W.2d at 835.
Whether a driver's right to counsel has been vindicated focuses "both on the police officer's duties in vindicating the right to counsel and the defendant's diligent exercise of the right." Gergen v. Commissioner of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996) (citation omitted). Police officers "must assist" in vindicating the right to counsel. McNaughton, 536 N.W.2d at 914 (citation omitted). Such assistance has been defined to include providing the driver with a telephone prior to testing and a reasonable amount of time to contact and talk with counsel. Friedman, 473 N.W.2d at 835.
Appellant was afforded the right to speak with counsel. Thus, our analysis turns to whether appellant was allowed a reasonable amount of time to confer with his attorney. The district court found that appellant admitted he was done speaking with counsel when the police officer informed him that he needed to make a decision. Appellant does not challenge the court's findings. Therefore, the significance of these facts and whether appellant was afforded a reasonable opportunity to consult counsel becomes exclusively a question of law. See McNaughton, 536 N.W.2d at 914.
The parameters of a driver's right to speak with counsel are not boundless. Generally, courts have cautioned against adopting a precise length of time as reasonable. Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992). Yet, a driver does not have a right to "unfettered use of a telephone to call friends or relatives." McNaughton, 536 N.W.2d at 915. The McNaughton court surveyed both ends of the reasonableness spectrum, explaining that on one hand, simply speaking with an attorney does not independently vindicate the right to counsel, but, in contrast, a "driver is not entitled to make multiple calls to attorneys until he receives information that he perceives to be helpful or satisfying." Id. at 915 (citation omitted).
Despite appellant's contention, this case is not similar to Duff v. Commissioner of Pub. Safety, 560 N.W.2d 735 (Minn. App. 1997). In Duff, a police officer failed to vindicate a driver's right to counsel when the officer terminated the driver's telephone conversation with his attorney without knowing either with whom the driver was speaking or for how long. Id. at 737. Here the officer located the number for appellant's attorney, dialed the number, and verified that the attorney was on the line, all because appellant was too intoxicated to contact his attorney himself.
Appellant argues that, because he was so obviously inebriated and there was no threat that he would fall below the criminal test limit, the officer erred in requesting a decision from appellant and he should have been entitled to recontact his attorney. We reject this argument. Appellant's contention ignores the officer's fundamental compliance with the reasonableness factor. The legislature did not intend to protect drivers who are too confused or intoxicated to exercise their rights under the implied consent law. Gergen, 548 N.W.2d at 310. Neither the law nor the record establishes that appellant's 12-minute conversation with his attorney failed the reasonableness test, apart from appellant being too intoxicated to benefit from this time. Because the law denies a driver the opportunity to abuse the right to counsel to secure some advantage, we reject appellant's appeal. See McNaughton, 536 N.W.2d at 915; Kuhn, 488 N.W.2d at 841 (police do not need to allow a driver a second opportunity to accept taking a test upon arrival of attorney, 30 minutes after initial refusal).