may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Commissioner of Public Safety,
Filed January 14, 1997
Carver County District Court
File No. C896501
Richard L. Swanson, 1059 Stoughton Avenue, Post Office Box 85, Chaska, MN 55318 (for Appellant)
Hubert H. Humphrey III, Attorney General, Peter R. Marker, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for Respondent)
Considered and decided by Norton, Presiding Judge, Lansing, Judge, and Huspeni, Judge.
Alan Zicaro appeals a district court order that sustained the revocation of his driver's license. We conclude that a reasonable basis existed for the arresting officer's initial investigatory stop and that Zicaro's right to counsel was vindicated. We affirm.
After making the stop, Officer Duzan transported Zicaro to the Carver County Jail, where the officer read Zicaro the implied consent advisory, informing him of his limited right to consult with an attorney before deciding whether to submit to testing. The officer made a telephone and telephone books available to Zicaro for forty minutes between 1:54 a.m. and 2:34 a.m. Zicaro claims to have attempted to call between ten and fifteen attorneys during that period, but he was successful in reaching only two. According to Zicaro's testimony, he spoke with one attorney for approximately five to ten minutes at around 2:15 a.m.
At approximately 2:34 a.m., Officer Duzan asked Zicaro if he would be willing to submit to a breath test. Zicaro responded that he would do so only in the presence of an attorney. Zicaro's driver's license was subsequently revoked for failure to submit to testing. The district court sustained the revocation, and Zicaro appeals.
The district court determined that the following observations by Officer Duzan provided an articulable suspicion justifying the stop: (1) the vehicle was driving over the center line on Highway 212, and (2) the vehicle straddled the driving lanes on County Road 17. Both of these are violations of Minnesota law. See Minn. Stat. § 169.18, subds. 1, 7 (1994) (requiring that vehicles be driven "upon the right half of the roadway" and "as nearly as practicable entirely within a single lane").
Zicaro argues that the officer's observation of a center line violation did not provide a reasonable basis for the stop, because "the road conditions"--the presence of multiple yellow lines on Highway 212--"provided an alternative explanation" to the officer's conclusion that intoxication was the reason that Zicaro was driving over the center line. But a motorist's assertion of an alternative explanation for his conduct does not automatically invalidate a stop made by an officer who reasonably suspected the driver of a criminal violation. Shull v. Commissioner of Pub. Safety, 398 N.W.2d 11, 14 (Minn. App. 1986) (affirming decision to sustain revocation when officer based stop on driver's "excessively slow speed and weaving over the center line," even though driving conduct occurred on "snowpacked and slippery" road). Although Zicaro's driving conduct arguably could support the inference that he was driving over the center line in the belief that a different set of double yellow lines marked the center of the road, the existence of that inference does not make Officer Duzan's contrary conclusion unreasonable.
Moreover, even if the officer had improperly determined that Zicaro was driving over the center line on Highway 212, a second observation provided him with an independent basis for an investigatory stop: his observation of Zicaro straddling two lanes on County Road 17. Zicaro does not dispute that Officer Duzan testified that he made this observation, but Zicaro suggests that the district court erred by including it in its findings because the officer did not report the violation on Zicaro's implied consent advisory form. We do not find clearly erroneous the district court's decision to base its findings on the officer's overall testimony rather than on only the notations that he made on the implied consent advisory form. See Minn. R. Civ. P. 52.01 (stating that reviewing court should give due regard to opportunity of district court to judge witness credibility).
A driver in an implied consent case has a limited right to counsel: he "has the right, upon request, to a reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing." Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). Determining the reasonableness of the opportunity requires more than simply a measurement of the time allowed in minutes. Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). Other relevant factors include the time of day of the attempted contact and the length of time of the driver's arrest. Id. We also may consider whether the driver was provided with a telephone and telephone directories, and whether the driver was free to call an attorney of his own choosing. Parsons, 488 N.W.2d at 502; see also McNaughton v. Commissioner of Pub. Safety, 536 N.W.2d 912, 915 (Minn. App. 1995) (holding that right to counsel was not vindicated when officer did not provide driver with phone books, but only provided a list of five attorneys' names and telephone numbers).
We have stated that a "threshold matter" in evaluating a driver's right to counsel in an implied consent case is the issue of whether the driver has made "a good faith and sincere effort to reach an attorney." Kuhn, 488 N.W.2d at 842. Zicaro asserts that he has satisfied this threshold question, and that, therefore, his right to counsel was not vindicated. The Commissioner does not dispute that Zicaro made a good faith effort to contact an attorney, but argues that Zicaro's right to counsel was vindicated because he contacted an attorney before his ultimate refusal to submit to testing. We agree.
The record demonstrates that Zicaro had access to a telephone and to telephone books for forty minutes between 1:54 and 2:34 a.m. During that time he was free to call an attorney of his own choosing. Zicaro not only successfully reached two attorneys, but he also consulted with one of them for approximately five to ten minutes. The district court found that the latter consultation took place at around 2:15 a.m., a finding that is consistent with Zicaro's own testimony. Having ended after ten minutes, the consultation would have ended by 2:25 a.m., leaving Zicaro with nine minutes to make further legal inquiries over the telephone before Officer Duzan recorded Zicaro's final refusal. The officer was not required to provide Zicaro with an additional opportunity to consult with an attorney after 2:34 a.m. We therefore conclude that the district court did not err in holding that Zicaro's right to counsel was vindicated.
[ ]1 Zicaro argues that Warrick v. Commissioner of Pub. Safety, 374 N.W.2d 585 (Minn. App. 1985), supports a contrary conclusion. We disagree. Although there we affirmed the district court's rescission of the revocation of a driver's license "[i]n view of the wind and the impaired visibility" on the road at the time of an investigatory stop, the officer in that case did not observe any conduct amounting to "a violation of law." Id. at 586 (officer observed driver subtly weaving within one lane and slightly fluctuating his speed within acceptable limits).