Affirmed

Peterson, Judge

Hennepin County District Court

File No. IC 478460

John C. Brink, Daniel L. Gerdts, Suite 840, 401 Second Avenue South, Minneapolis, MN  55401 (for appellant)

Mike Hatch, Attorney General, Melissa J. Eberhart, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN  55103-2106 (for respondent)

            Considered and decided by Stoneburner, Presiding Judge, Lansing, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from an order sustaining the revocation of his driving privileges, appellant argues that (1) he was denied his right to counsel; (2) the statutory implied consent advisory was nullified by extraneous information provided by police; and (3) his test refusal was provoked by a police officer.  We affirm.

                                                                        FACTS

            A Minneapolis police officer stopped appellant Larry John Neck’s vehicle after observing erratic driving.  The officer arrested Neck for DWI, and Neck was brought to the chemical testing unit where Officer Ann Moryc read the implied consent advisory. Neck indicated that he understood the advisory and that he wished to consult with an attorney before making a decision regarding alcohol testing.

            Moryc and Officer DeChristopher Granger gave Neck a telephone and telephone directories and told Neck that he had 30 minutes to contact an attorney. Neck spent about ten minutes calling a friend and the friend’s wife to obtain his attorney’s telephone number.  Neck left a message with his friend’s wife to contact him with the attorney’s number.  He spent the remaining time waiting for a return call. After 30 minutes, Neck had not received a call back, and Moryc requested that he take a breath test.  Neck stated that he would not do anything without talking to his attorney, which Moryc interpreted as a refusal to take the breath test.

            While Neck was waiting for a return call, he spoke with Granger about his testing options and the consequences.  Granger testified that Neck told him that he had no prior alcohol incidents on his record. Granger then told Neck that his license would be revoked for one year if he refused testing and for 90 days if he took the test and failed. Granger also told Neck that a test result of .10 or more and refusing testing are both crimes. Granger testified that he advised Neck that he was not trying to give him advice and that he should contact his attorney to figure out what actions he should take. Granger read to Neck a part of rule 1.2(c) of the Minnesota Rules of Professional Conduct for lawyers, which provides, “A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent * * * .”

            Both Neck and Granger testified that there was animosity between them. Granger testified that Neck accused Granger of attempting to give him advice about what action he should take and that Neck was unsure about his options.  Neck testified that Granger was hostile towards him and told him to take the breath test.  Neck believed that Granger was trying to influence his decision, and he was unsure about whether to trust Granger’s advice.

            Neck’s license was revoked for refusing to take the breath test, and the district court sustained the revocation.

D E C I S I O N

            Neck argues in his principal brief that Granger’s comments to him while he waited for a return call nullified his statutory right to counsel, impermissibly interfered with his constitutional right to counsel, and deprived him of his constitutional right to due process.  Neck specifically contends that when Granger told him that both test refusal and test failure were crimes and that an attorney could not counsel a client to engage in conduct that the lawyer knows is criminal, Granger rendered consultation with counsel a useless gesture.

            A person arrested for [DWI] has a limited right to consult an attorney before deciding whether to submit to chemical testing, provided the consultation does not unreasonably delay the testing.

            A limited right to counsel means the right to consult with a lawyer of the driver’s own choosing.  A police officer not only must inform the driver of the right to counsel but also must assist in vindicating this right.  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. 

Gergen v. Commissioner of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996) (citations and quotation omitted), review denied (Minn. Aug. 6, 1996).

            When the facts are not disputed, whether a driver was accorded a reasonable opportunity to consult with an attorney is a legal determination that this court reviews de novo.  Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). 

            Neck was informed of his right to counsel and provided a telephone and telephone directories.  He was allowed to use the telephone for 30 minutes to make the calls he wished to make.  When he could not reach the attorney he wished to speak with, he stopped making calls and waited for a return call.  Neck does not claim that he was not allowed to make a call that he wished to make or that the statements Granger made after he stopped trying to call an attorney prevented him from making additional calls.  In fact, he acknowledges in his reply brief that

[i]t is not the denial of the right [to counsel] that occurred in this case, therefore, but the improper attempt to render the right hollow and to provoke [Neck’s] insistence on speaking to his own lawyer – and therefore the opportunity subjectively to declare him a “refusal.”

            Citing McDonnell v. Commissioner of Pub. Safety, 473 N.W.2d 848, 853-55 (Minn. 1991), Neck argues that Granger’s statements were actively misleading and an improper attempt to render his right to contact an attorney hollow.  We understand Neck’s argument to be that after hearing Granger’s comments, he made no further attempt to contact an attorney because he believed that doing so would be useless because an attorney could not advise him anyway.

            But in McDonnell,

the district court determined that [the driver] would have refused to submit to testing had she not felt certain that criminal penalties would result.

Id. at 855.  Here, the district court did not find that Neck would have attempted to call an attorney had Granger’s statements not confused him. There was no basis for such a finding because Neck did not testify that he stopped trying to contact an attorney due to confusion caused by Granger’s statements.  When questioned by his attorney, Neck testified as follows:

            Q         Did you have a lawyer?  Did you know a lawyer?

            A         Yes.

            Q         What I mean, is one you worked with?

            A         Ongoing basis, yes.

            Q         What is his name?

            A         Michael Chase.

            Q         All right.  Mr. Chase is who you were trying to reach?

A         Yes.

Q         As opposed to somebody out of the yellow pages or blue pages or whatever?

A         Correct.

Q         Were you confused about whether or not to take this test?

A         Absolutely, had never been in that situation before so I just didn’t know what I was supposed to do and with Officer Granger now badgering me to take the test and telling me I was going to lose my license for 90 days if I take the test and fail, you know, and that is the best way to go, and at this point I said, “It sounds like you are trying to give me legal advice,” and he said, “Just quit dicking us around.  Just take the damn test.”

Q         How did that advice from him fit with your perceived hostility?

A         Well, this guy is not my friend, not doing me any favors so I am -- I don’t know whether I should or shouldn’t.  That is why I wanted to talk to Michael.

Q         You remember reading that ethical obligation of lawyers that was a memo that was posted on the wall?

A         Not specifically, no.

Q         Do you recall the day Officer Moryc * * * read you a paper?

A         Yes.

Q         Called “The Implied Consent Advisory”?

A         Yes.

Q         Did the advice that Officer Granger was giving you confuse you further, help you or confuse you as to whether or not to take the test?

A         I just didn’t know what to do.

Q         And hence your statement was, “I am not doing anything until I talk to my lawyer?”

A         Correct.

            Neck’s testimony did not support a claim that Granger’s statements caused him to believe that it would be useless to contact an attorney.

            Neck also argues that Granger provoked his test refusal by creating a hostile atmosphere.   The district court made the following findings of fact:

3.                  [Neck] argued that the refusal was provoked by the conduct of Officer Granger.

4.                  Upon consideration of the cited case law and the testimony received at the hearing, the Court finds that [Neck’s] refusal to test was not justified.

            We understand the finding that Neck’s refusal to test was not justified to mean that the trial court rejected Neck’s argument that Granger provoked the refusal.  The record supports this finding.  Neck’s testimony indicates that he refused because he was confused and wanted to speak with his lawyer before making a decision, not because Granger provoked him.  The district court’s findings of fact must be sustained unless clearly erroneous.  Frost v. Commissioner of Pub. Safety, 348 N.W.2d 803, 804 (Minn. App. 1984).

            Affirmed.