This opinion will be unpublished and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

C9-00-132

 

Michael John Dines, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed August 8, 2000

Affirmed

Shumaker, Judge

 

Goodhue County District Court

File No. C8991013

 

 

 

David B. Lundgren, Lundgren & Shearin, 649 Grand Avenue, St. Paul, MN 55105 (for appellant)

 

Mike Hatch, Attorney General, Max A. Keller, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

 

 

            Considered and decided by Shumaker, Presiding Judge, Schumacher, Judge, and Harten, Judge.

 

 

 

U N P U B L I S H E D   O P I N I O N

 

SHUMAKER, Judge

 

Appellant contends that the district court erred in sustaining the implied consent revocation of his driver’s license because the arresting officer read the required advisory ninety minutes before requesting the test, failed to tell him the consequence of refusal, and failed to vindicate his right to counsel.  We affirm.

FACTS

            A deputy sheriffarrested appellant Michael John Dines for driving while intoxicated about three miles south of the city of Zumbrota.  The deputy placed Dines in his squad car and read Dines the Minnesota Implied Consent Advisory at 3:44 a.m.  The deputy read the applicable portions^[1] of the advisory "word for word" starting from the beginning of the introductory paragraph.  Dines indicated that he did not understand everything exactly, so the deputy reread the advisory.  At this point, Dines told the deputy that he wished to consult with an attorney.  Because there were no telephones or directories in the squad car, the deputy transported Dines to the Red Wing police station where telephones and Twin Cities directories were available.  They arrived at the Red Wing police station at 4:24 a.m.

            At the police station, the deputy gave Dines access to several telephone directories and a telephone at 4:25 a.m.  Dines was unable to use the telephone properly so the deputy assisted him in dialing.  After 10 or 15 minutes, Dines reached an answering service for an attorney.  The deputy gave Dines the sheriff's department's dispatch number so that the attorney could call back.  The deputy took Dines into the sally port to wait his turn to be booked into the jail.  The sally port had no telephones or directories.  Dines did not ask the deputy if he could make additional telephone calls, nor did he make any other attempt to contact an attorney.  At 5:15 a.m., no one had returned Dines' call.  The deputy informed Dines that "a reasonable amount of time had gone by" and that Dines needed to make a decision about testing.  Dines refused to test, stating "I believe it would not be in my best interests from a legal standpoint."  

            The Commissioner of Public Safety revoked Dines' license for refusing to submit to a test.  At an implied consent hearing, Dines sought rescission of the revocation, claiming that (1) the deputy did not tell him that his license would be revoked for a year; (2) the deputy read the implied consent advisory approximately ninety minutes before asking Dines to submit to a test; and (3) Dines' right to counsel was not vindicated because the deputy transferred him to the sally port while he awaited the attorney's call.  The district court sustained the revocation and Dines appealed.

D E C I S I O N

            Dines argues that the deputy should have told him that his license would be revoked for one year if he refused to test.  When a state statute requires that a person be informed of certain rights and obligations before testing, the reviewing court must determine whether the information given comports with fundamental fairness required by due process.  Davis v. Commissioner of Pub. Safety, 509 N.W.2d 380, 386 (Minn. App. 1993) (citing South Dakota v. Neville, 459 U.S. 553, 564-66, 103 S. Ct. 916, 923-24 (1983)), aff'd, 517 N.W.2d 901 (Minn. 1994).  The standard of review of a trial court’s due process determination is de novo.  Palme v. Commissioner of Pub. Safety, 541 N.W.2d 340, 344 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996).

            A law enforcement officer is not required to advise a motorist of all the consequences of taking or refusing an implied consent test.  State v. Abe, 289 N.W.2d 158, 160-161 (Minn. 1980); McDonnell v. Commissioner of Pub. Safety, 473 N.W.2d 848, 853 (Minn. 1991) (stating a state does not violate fundamental fairness inherent to due process by choosing not to advise individuals of all the possible consequences they could face in refusing a breath test).  In Davis v. Commissioner of Pub. Safety, 517 N.W.2d 901 (Minn. 1994), the Minnesota Supreme Court concluded that the implied consent advisory need not inform a driver of the applicable driver's license revocation period for test failure or refusal.  The role of explaining all consequences is reserved to the attorney, whom the motorist is statutorily entitled to contact under Minn. Stat § 169.123, subd. 2(b)(4) (1998), and who can give legal advice.  Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 833 (Minn. 1991) (stating “[a]n attorney, not a police officer, is the appropriate source of legal advice.”); see also Fehler v. Commissioner of Pub. Safety, 591 N.W.2d 752, 754 (Minn. App. 1999), quoting McDonnell, 473 N.W.2d at 853 ("It is not * * * a violation of due process for an officer to fail 'to advise individuals of all the possible consequences they could face in refusing a breath test.'")  Here, the deputy properly read the implied consent advisory.

            Dines also contests the revocation of his license because the deputy did not read the implied consent advisory "at the time he requested the test but instead read it at the scene of the stop."  See Minn. Stat. § 169.123, subd. 2(b) (1996) (requiring police to read advisory "at the time a test is requested").  The deputy read Dines the implied consent advisory at 3:44 a.m.  The advisory states "Minnesota law requires you to take a test * * * .”  When Dines told the deputy that he wanted to consult with an attorney, the deputy immediately transported Dines to the police station where he was given access to a telephone and phone books.  There was no unnecessary delay between the arrest and the deputy's request that Dines decide whether to submit to testing.  Most importantly, the deputy advised Dines of his rights before Dines was required to decide if he should test.  There was no impropriety in what the deputy did.

Dines next claims that his right to counsel was not vindicated.  Where facts are undisputed, appellate courts apply de novo review to determine whether a defendant's right to counsel was violated.  State v. Christiansen, 515 N.W.2d 110, 112 (Minn. App. 1994), review denied (Minn. June 15, 1994).  The relevant inquiry as to whether or not a defendant was afforded his constitutional right to counsel focuses “both on the police officer's duties in vindicating the right to counsel and the defendant's diligent exercise of the right,” and, as a threshold matter, “the driver must make a good faith and sincere effort to reach an attorney.”  Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).

In determining whether a driver had a reasonable opportunity to consult with an attorney, courts consider several factors, including whether the driver was given a reasonable time to contact counsel, whether the officer assisted the driver in contacting counsel, Friedman, 473 N.W.2d at 835; whether the officer provided telephone directories to the driver,whether the driver could contact anyone the driver chose to contact, Parsons v. Commissioner of Pub. Safety, 488 N.W.2d 500, 502 (Minn. App. 1992); the time of day the driver attempts to contact counsel; and the length of time the driver has been under arrest, Kuhn,488 N.W.2d at 842.  It is from “the totality of the facts” that we determine whether a driver’s right to counsel has been vindicated.  Parsons, 488 N.W.2d at 502.

The record shows that the deputy gave Dines a reasonable time to contact an attorney.  The deputy gave him access to a telephone and telephone directories, and the deputy assisted Dines by dialing the phone for him.  The deputy also allowed Dines privacy after he reached an attorney's office, and the deputy cooperated by giving a return-call telephone number.  The deputy did not transport Dines to the sally port until after Dines had contacted an attorney's office.  The telephone was directly outside the sally port and the deputy would have been aware of any return call.  Furthermore, Dines made no additional requests to use the telephone.  Dines was given approximately 10 or 15 minutes within which to contact an attorney, and he chose to wait for a return call rather than call other attorneys.   In light of these facts, we hold that Dines' right to counsel was vindicated. 

Affirmed.