This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-99-2066

 

Shaikh Asim Gul, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

 

Filed July 3, 2000

Affirmed

Davies, Judge

 

Hennepin County District Court

File No. IC477762

 

 

Peter J. Timmons, Metro Office Park, Suite 321, 2850 Metro Drive, Bloomington, MN 55425-1411; and

Steven J. Meshbesher, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)

 

Mike Hatch, Attorney General, Matthew Frank, Sean R. McCarthy, Assistant Attorneys General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge, Davies, Judge, and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

DAVIES, Judge

            The district court sustained respondent Commissioner of Public Safety’s revocation of appellant’s driver’s license for violating the implied consent law.   Appellant challenges the stop of his boat as unconstitutional and claims his right to counsel was not vindicated.  We affirm.

FACTS

            On August 18, 1999, appellant Shaikh Asim Gul was driving his boat on Lake Minnetonka.  A deputy sheriff was patrolling the lake when appellant’s boat cut in front of the deputy’s boat at a rate of speed that made a wake in a “no-wake” zone.  The deputy had to put his boat in reverse to avoid being hit by appellant.

            Close to the same time, the deputy received a call from dispatch reporting that a boat matching appellant’s boat had come through the channel a few minutes earlier and its wake had pushed other boats around.  As the deputy followed appellant’s boat, two people yelled to him that appellant’s boat had come through earlier making a wake that pushed other boats around.  The deputy then stopped appellant’s boat.

            Appellant was arrested for driving his boat under the influence and transported to a detention center.  After arriving at the detention center, appellant said he wanted to speak with his attorney and said the attorney’s unlisted telephone number was in appellant’s wallet, which he left behind on his boat.  Appellant made three calls in an attempt to contact his attorney.  When these attempts were unsuccessful, appellant agreed to submit to an intoxilyzer test.

            Under the implied consent law, appellant’s driver’s license was revoked for an alcohol concentration over .10.  He petitioned for judicial review; the district court sustained the revocation.  Appellant challenges the initial stop and claims his right to counsel was not vindicated.

D E C I S I O N

I.

            When the district court credits the testimony of the arresting officer and facts are not in dispute, this court’s review involves an analysis of the officer’s testimony to “determine whether, as a matter of law, his observations provided an adequate basis for the stop.”  Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).

            A limited investigative stop is lawful if the officer is able to articulate a “particularized and objective basis for suspecting the particular person stopped of criminal activity.”  Appelgate v. Commissioner of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987) (citation omitted).

“Slow-no wake” means operation of a watercraft at the slowest possible speed necessary to maintain steerage, but in no case greater than five miles per hour.

 

Minn. Stat. § 86B.005, subd. 16(a) (1998).  A person is guilty of a misdemeanor when operating a “watercraft that does not conform to the requirements of this chapter.”  Minn. Stat. § 86B.811, subd. 1(2) (1998). 

The deputy observed appellant’s boat traveling at an inappropriately “high rate of speed,” which created a wake.  The deputy was also notified by a call from dispatch, and by two other people on the lake, that appellant’s boat had created a wake that pushed other boats around.  The district court did not err in finding that the stop of appellant was justified based on articulable suspicion that he violated the no-wake zone.

II.

            The determination of whether an officer vindicated a driver’s right to counsel is a mixed question of law and fact.  Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).  Once the facts are established, this court makes a legal determination as to whether the defendant “was accorded a reasonable opportunity to consult with counsel based on the given facts.”  Id.    

            A driver has a limited right to consult with counsel before deciding whether to submit to testing.  Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).  That right is vindicated if the driver “is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.”  McNaughton v. Commissioner of Pub. Safety, 536 N.W.2d 912, 915 (Minn. App. 1995) (citation omitted).  A police officer is required to assist the driver in the vindication of this right to counsel.  Id. at 914.

            Appellant argues that he was denied a reasonable opportunity to contact an attorney of his choice.  Appellant stipulated that the deputy provided appellant a telephone, telephone book, and a reasonable amount of time to contact and speak with an attorney.  But he argues that the officer violated his rights by not attempting to locate appellant’s wallet containing his attorney’s private number.  The district court did not err in concluding that appellant’s limited right to counsel was vindicated despite appellant’s inability to locate and consult with the attorney of his choice.  See Eveslage v. Commissioner of Pub. Safety, 353 N.W.2d 623, 627 (Minn. App. 1984) (driver who requests specific attorney, but is unsuccessful in contacting that attorney and does not want to contact another attorney, has had right to counsel vindicated).^[1]

            Affirmed.