This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C8-99-714

Joseph Edward Flaherty, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed December 28, 1999
Affirmed
Shumaker, Judge

Dakota County District Court
File No. C19815697

Robert M. Christensen, Gerald Miller & Associates, P.A., 210 North Second Street, Suite 100, Minneapolis, MN 55401-1414 (for appellant)

Mike Hatch, Attorney General, Sean R. McCarthy, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

 

Considered and decided by Lansing, Presiding Judge, Shumaker, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

Appellant Joseph Edward Flaherty appeals from the district court's order sustaining his driver's license revocation for refusal to submit to chemical testing. He contends that the police failed to vindicate his limited right to consult with counsel. We affirm.

FACTS

At about 3:49 a.m. on November 4, 1998, Inver Grove Heights police officer Jessica Danberg arrested appellant Joseph Flaherty for driving while under the influence of alcohol. She took Flaherty to the police station and read to him the implied consent advisory. Flaherty replied that he wanted to talk to an attorney.

Officer Danberg gave Flaherty a telephone and telephone directories at 4:15 a.m. Beginning at 4:26 am. the following colloquy among Danberg, Flaherty and a police sergeant took place:

OFFICER: Mr. Flaherty, you know itís 4:26 at this point and you have about 15 more minutes to attempt to make contact with an attorney? We need to show-

JF: How, how much time?

OFFICER: 15 more minutes. Youíve had 15, you need to, fif-, you have about 15 more to try to contact an attorney.

JF: Could, youíre suggesting that I had 15 and now I have 15 more?

OFFICER: You did, you se-, you started at 4:15. Itís 4:26 right now. So youíve had 11 minutes. We will give to 4:45 to try to contact an attorney. You need to show that youíre making a reasonable effort.

JF: I am. And, I didnít realize that there were some sort of limit for me to find-

OFFICER: Well, itís within a reasonable period of time.

* * *.

JF: Maíam are you telling me that I have only x amount of minutes to try to find a person on this list?

OFFICER: If you know their name, maybe, if you, do you want me to help you look? If, If, i-

JF: No. No.

OFFICER: itís a specific name?

JF; I'm tra-, I'm trying to determine whether-

OFFICER: It could take, it could take, if theyíre not in the phone book, it may end up it would, if we donít give a time, a reasonable time on it, it could take all night and we canít do that. It needs to be within a reasonable time-

JF: Iím searching.

OFFICER: ________a half an hour.

* * *.

OFFICER: Just continue to look. Itís 4:28. Iím gonna stop talking so you continue, so you can continue to concentrate on trying to look for an attorney. The phone is right here, hereís-

* * *.

OFFICER: I, I, I told you that we give a half, a half hour, a half hour is considered a reasonable time in an attempt to make contact with an attorney. Itís now 4:29. At 4:45, is when weíre going to continue with the paperwork.

* * *.

OFFICER: You have like six minutes left. Itís 4:38

JF: And what does that ____?

OFFICER: That means that thatís the time youíve had, you, when it gets to 4:45 you had a half hour to try to contact an attorney. Youíve made no attempt to pick up a phone to try to dial an attorney. If youíre unable to locate the one that youíre looking for, I would suggest calling another one if you wish to speak with one before the time is up.

* * *.

SERGEANT: Well what you need to decide right now is do you want to take a breath or a blood or a urine test?

JF: I'm not gonna give a blood or urine test. I'm gonna call an attorney.

SERGEANT: Okay, why don't you stand up there Mr. Flaherty?

JF: _________me find the number.

SERGEANT: Time is up. Stand up now.

* * *.

The sergeant placed Flaherty in a holding cell, and a few minutes later asked Flaherty if he would take a blood or urine test. Flaherty stated that he wanted to contact an attorney. When the sergeant indicated that Flaherty had already been given a reasonable time to contact a lawyer, Flaherty replied that wasn't true and he then refused to submit to a test. The refusal occurred at about 4:45 a.m.

Because of Flaherty's test refusal his driver's license was revoked. He petitioned for judicial review. The district court heard testimony and listened to a tape-recording of the colloquy among Flaherty, Danberg and the sergeant. Concluding that Flaherty's limited right to consult with counsel had been vindicated, the court sustained the revocation. Flaherty appealed.

D E C I S I O N

Whether a driver's right to counsel has been vindicated is a mixed question of law and fact. See Parsons v. Commissioner of Pub. Safety, 488 N.W.2d 500, 501 (Minn. App. 1992) (concluding question whether driver was allowed reasonable time to consult with attorney is issue of both law and fact). Establishing the historical events presents a question of fact. Id.; see Minn. R. Civ. P. 52.01 (providing trial court's findings of fact must not be set aside unless clearly erroneous, giving due regard to court's opportunity to judge witness credibility). Once the facts are established, their significance becomes a question of law for de novo review. See Gergen v. Commissioner of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996) (concluding issue whether driver's right to counsel was vindicated is question of law when facts are undisputed), review denied (Minn. Aug. 6, 1996). Here, the dispositive facts are undisputed.

Under Minnesotaís Constitution, an individual has a limited right, upon request, to obtain legal advice before deciding whether to submit to chemical testing, provided the consultation does not unreasonably delay administration of the test. Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). A driver must be informed of this right, and a police officer must assist in its vindication. Id. (quoting Prideaux v. State, Dept. of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (Minn. 1976)).

A police officer may vindicate a driver's limited right to counsel by providing a telephone and a reasonable amount of time to contact and speak with an attorney. Prideaux, 310 Minn. at 421, 247 N.W.2d at 394.

There is no definitive rule on what constitutes a reasonable amount of time. Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992) ("We propose no definite or exclusive set of factors [as to what constitutes a reasonable amount of time]."), review denied (Minn. Oct. 20, 1992). Rather, the relevant inquiry focuses "both on the police officer's duties in vindicating the right to counsel and the defendant's diligent exercise of the right." Id. Thus, "as a threshold matter the driver must make a good faith and sincere effort to reach an attorney." Id. Whether appellant made a good-faith effort to contact an attorney is a fact-specific inquiry, and this court need only determine whether the district court's finding is clearly erroneous. Gergen, 548 N.W.2d at 309. A finding of fact is clearly erroneous "only if, upon review of the entire evidence, a reviewing court is left with the definite and firm conviction that a mistake has been made." Novack v. Northwest Airlines, Inc., 525 N.W.2d 592, 597 (Minn. App. 1995) (quoting Gjovik v. Strope, 401 N.W.2d 664, 667 (Minn. 1987)).

Flaherty contends that Officer Danberg promised that he would have 30 minutes to call an attorney but then allowed him only 19 minutes to do so. However, the district court found:

From 4:15 A.M. until 4:38 A.M. petitioner did absolutely nothing in furtherance of his right to counsel other than to flip through pages of telephone directories, including pages that had nothing to do with attorneys; and, to engage in what is best described as argumentative "drunk" talk with Officer Danberg. He clearly made no good faith effort to obtain the assistance of counsel after his right to same was vindicated.

Although Flaherty presents his position in the posture of a breach of contract, the focus is properly placed on whether or not he was making a good-faith effort to contact an attorney. There are no fixed maximum or minimum time limits within which an individual must succeed in contacting an attorney. But the right to consult with counsel is a limited one that balances an individual's legal protections against the state's interest in guarding against the dissipation of evidence caused by delays in testing. Whatever time is allowed an individual to consult with counsel is premised on the assumption that the individual will make a good-faith effort to achieve the consultation.

Here, the district court, having had the benefit of live testimony, simply did not believe that Flaherty was making a good-faith effort to locate a lawyer or that he was searching for "Chas. H. Hvass" under "Voss." We give deference to the credibility determinations of the district court. Thuma v. Kroschel, 506 N.W.2d 14, 18 (Minn. App. 1993), review denied (Minn. Dec. 14, 1993).

The record shows that Flaherty spent considerable time merely flipping through the pages of the directories and engaging Officer Danberg in disputes and questions about time limits. The record also shows that Flaherty declined the officer's offers to assist him in locating a lawyer. It is reasonable to infer from such conduct that Flaherty was merely delaying and was not making a good-faith effort to locate counsel. Thus, the district court's findings are not clearly erroneous. Parsons, 488 N.W.2d at 501 (citing Eveslage v. Commissioner of Pub. Safety, 353 N.W.2d 623, 627 (Minn. App. 1984)).

Affirmed.