Timothy J. Becker, The Becker Law Firm, Southfork Office Center, 17645 Juniper Path, Ste. 225, Lakeville, MN 55044 (for appellant)

Considered and decided by Short, Presiding Judge, Kalitowski, Judge, and Klaphake, Judge.

KLAPHAKE, Judge

On May 3, 1997, appellant James E. Thill was stopped for speeding and arrested for driving while under the influence of alcohol (DUI). In the prior implied consent proceeding, the district court concluded that the arresting officer had failed to vindicate Thill's right to counsel and rescinded the commissioner's revocation of Thill's driving privileges.

In this criminal proceeding, Thill moved to suppress the test results, arguing that the arresting officer failed to vindicate his right to counsel. Thill also argued that the decision in the implied consent proceeding should preclude relitigation of this issue. Following an omnibus hearing, the court denied Thill's motion to suppress.

Based on stipulated facts, the court subsequently found Thill guilty of two counts of gross misdemeanor driving with a blood alcohol content of .10 percent or more, second within five years and third within ten years, counts II and IV of the complaint. Minn. Stat. § 169.121, subds. 1(e), 3(c)(1) (1996). This appeal followed sentencing.

Because collateral estoppel does not apply to preclude the state from relitigating the right to counsel issue and because Thill was given an adequate opportunity to consult with his attorney over the telephone prior to testing, we affirm.

The omnibus court overruled Thill's objections to the state's questions, stating that the evidence was relevant. Because the court was faced with credibility issues and it was unknown at the time whether Thill would be testifying following the officer, the court did not abuse its discretion in ruling this testimony relevant to Thill's condition and ability to communicate with his attorney.

Although the second requirement, existence of a final judgment on the merits, may have been met in this case, the remaining three have not been satisfied. First, while the issues in these two proceedings appear to be identical, the supreme court has cautioned that implied consent proceedings, which are civil in nature, and criminal proceedings arising out of driving while under the influence "are related only to the extent that they both generally grow out of the same set of facts." State, Dep't of Pub. Safety v. House, 291 Minn. 424, 425, 192 N.W.2d 93, 94-95 (1971). With respect to the privity requirement, this court has held that issues decided in a prior implied consent proceeding do not bind the state because the prosecutor was not a party or in privity to a party in that proceeding. Juarez, 345 N.W.2d at 802-03 (collateral estoppel does not apply to suppress breathalyzer test results in criminal DWI proceeding when prosecutor not party to prior implied consent proceeding). Finally, because the prosecutor in this case did not receive notice of the implied consent proceeding, it was not given a full and fair opportunity to be heard in that prior proceeding. Thus, the court did not err in refusing to apply collateral estoppel in this criminal case.

To the extent the facts are uncontested, the issue of whether a driver was given a reasonable opportunity to consult with counsel is a question of law that is reviewed de novo. McNaughton v. Commissioner of Pub. Safety, 536 N.W.2d 912, 914 (Minn. App. 1995); see also Parsons v. Commissioner of Pub. Safety, 488 N.W.2d 500, 501 (Minn. App. 1992) (whether person allowed reasonable time to consult with attorney is mixed question of law and fact: once facts established, application of law requires de novo review).

Thill argues that his right to counsel was not vindicated because he was not allowed an in-person consultation with his attorney. The undisputed facts establish that Thill was given a telephone when he indicated at the beginning of the implied consent advisory that he wished to speak with his attorney. Thill reached his attorney and actually spoke to him for at least 38 minutes. Thill's attorney acknowledged that he gave Thill legal advice as to whether or not he should submit to testing. Thill's attorney nevertheless testified that he believed an in-person consultation was necessary because the officer would not leave the room and allow Thill to speak with the attorney in private. When the attorney arrived at the police station, the officer refused to allow him to see Thill and continued with the advisory.

A telephone consultation with an attorney may vindicate the accused's right to counsel, and in-person contact is not necessary. Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). An officer is only required to allow and facilitate the driver's right to counsel; the officer need not insure that the driver has received the best or even proper counsel. Butler v. Commissioner of Pub. Safety, 348 N.W.2d 827, 829 (Minn. App. 1984). Nor need an officer delay testing to wait for the arrival of an attorney. Martin v. Commissioner of Pub. Safety, 358 N.W.2d 734, 736 (Minn. App. 1984) (waiting for attorney's arrival would burden officers with decision as to how long a delay is reasonable).

In this case, the attorney admitted at trial that he was unaware of case law holding that officers need not provide a driver with a private telephone, because an arrestee's rights will be sufficiently protected by the subsequent exclusion of any overheard statements or fruits of those statements. See Commissioner of Pub. Safety v. Campbell, 494 N.W.2d 268, 269-70 (Minn. 1992). Thill's attorney further admitted that he was able to give Thill some legal advice and that he discussed testing with Thill. Under these circumstances, Thill cannot argue that the telephone consultation with his attorney failed to serve its purpose of allowing him to consult with an attorney before deciding whether to submit to testing.

In State, Dep't of Pub. Safety v. Kneisl, 312 Minn. 281, 286, 251 N.W.2d 645, 649 (1977), the supreme court held that an accused has a right to speak with his attorney in person. Kneisl was decided pre-Friedman and based on Minn. Stat. § 481.10 (1996), which requires an officer to admit an attorney "to a private interview at the place of custody." This court has suggested since Friedman, which based the limited right to counsel on the Minnesota Constitution, that Minn. Stat. § 481.10 no longer applies to implied consent proceedings.[1] Gergen v. Commissioner of Pub. Safety, 548 N.W.2d 307, 311 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996). Thus, Kneisl is not controlling because Minn. Stat. § 481.10 no longer applies in implied consent or DUI proceedings.

Kneisl is also distinguishable on its facts. In Kneisl, 312 Minn. at 282, 251 N.W.2d at 647, the defendant called his attorney from jail and the attorney appeared approximately one-half hour later; the opinion does not indicate the time of arrest. The supreme court stated:

In this case a telephone call was allowed but a private conference with the attorney was prohibited at the jail. It is undisputed that the attorney arrived promptly at the jail and that a reasonable time for a conference with his client would not have affected the validity of any test administered thereafter. Under these circumstances, it would be a sham to permit the telephone call and then deny the arrested person an opportunity to consult with his attorney at the jail. * * * If the attorney arrives at the jail within a reasonable time so as to not affect the validity of the implied-consent testing, a private consultation between attorney and client must be allowed.

Id. at 285-86, 251 N.W.2d at 648-49.

In this case, the officer testified that he refused to allow an in-person consultation because he believed he was in danger of losing his opportunity to obtain a .10 reading within two hours of driving. The officer explained that if Thill had not been able to provide a valid Intoxilyzer test for some reason, the officer might have difficulty obtaining a blood or urine test within the two-hour limit because those tests had to be administered at the local hospital. Although Thill questions the officer's credibility and argues that allowing Thill to meet with his attorney for two to three minutes would not have invalidated the test, the court found the officer's testimony credible.

Under these facts, we conclude that the court did not err in determining that Thill's right to counsel was vindicated and that Thill was not entitled to an in-person consultation with his attorney. We therefore affirm Thill's conviction.

Affirmed.

[1] The purpose of Minn. Stat. § 481.10 is to ensure an attorney's right to provide legal consultation, not vindication of the right to counsel of one accused of a crime.