This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1116

A04-1508

 

Douglas Gerald Blaine, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

AND

 

State of Minnesota,

Respondent,

 

vs.

 

Douglas Gerald Blaine,

Appellant.

 

Filed April 12, 2005

Affirmed

Gordon W. Shumaker, Judge

Dissenting, Minge, Judge

 

Stearns County District Court

File No. C4-04-858 (A04-1116)

File No. K7-04-661 (A04-1508)

 

 

Paul B. Ahern, Paul B. Ahern, P.A. 5101 Thimsen Avenue, Minnetonka, MN 55345 (for appellant)

 

Mike Hatch, Attorney General, Sheila M. Fitzgerald Steichen, Melissa Eberhart, Assistant Attorneys General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

Jan F. Petersen, St. Cloud City Attorney, Laura L. Gray, Assistant City Attorney, 400 Second Street South, St. Cloud, MN 56301 (for respondent)

 

            Considered and decided by Toussaint, Chief Judge; Shumaker, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

On consolidated appeals from a May 12, 2004 order sustaining the revocation of his driver’s license under the implied-consent law and his August 2, 2004 conviction of criminal refusal of testing in the second degree, appellant raises the singular issue of whether the peace officer failed to vindicate his limited right to counsel.  We affirm.

FACTS

At 6:33 p.m. on Sunday, February 15, 2004, police officer Aaron Stellmach arrested appellant Douglas Blaine in Stearns County for driving under the influence of alcohol.  At 6:45 p.m., Stellmach read to Blaine the implied-consent advisory and Blaine said he wanted to consult an attorney.  Stellmach then took Blaine to the Stearns County jail.

When they arrived at the jail at 7:09 p.m., Stellmach gave Blaine the use of a telephone, from which he could make both long-distance and directory-assisted calls, and provided tri-county telephone books and the “Blue Pages.”  Although Blaine asked for a Minneapolis directory, Stellmach did not give him one.

For the next 15 minutes, Blaine made several telephone calls, including to his two brothers in the Twin Cities area, in an effort to reach his own attorney, whose name he did not recall.  He did not reach his brothers, and he made calls to other attorneys whom he did not reach either.  He recalled playing golf with attorney Michael Burns, called his number, reached a receptionist, and left a message with her to have Burns call him at the jail.  While he waited for the return call he did not try to reach any other attorney, nor did he use phone books or directory assistance to continue to search for a lawyer.

After Blaine stopped trying to find a lawyer, Stellmach told him that he would have ten more minutes for a return call from Burns.  At 7:36 p.m., 25 minutes after Stellmach had given a telephone and directories to Blaine, Stellmach re-read the implied-consent advisory and asked Blaine if he would take a breath test.  Blaine replied by stating four times that he had not yet consulted with his attorney.  Stellmach treated his response as a test refusal.  Blaines’ driver’s license was revoked and the district court sustained the revocation.  Contending that his right to consult with counsel had not been vindicated, Blaine appealed.

D E C I S I O N

 

A motor vehicle driver arrested for driving under the influence of alcohol has a limited right to consult an attorney before deciding whether to submit to blood-alcohol testing, but he cannot thereby unreasonably delay the testing.  Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).  A peace officer must tell the driver of his right to consult an attorney and must assist in vindicating that right.  Butler v. Comm’r of Pub. Safety, 348 N.W.2d 827, 829 (Minn. App. 1984).  In determining whether the peace officer has vindicated the driver’s limited right to counsel, we focus “both on the police officer’s duties in vindicating the right to counsel and the defendant’s diligent exercise of the right.”  Kuhn v. Comm’r of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).  That determination is a mixed question of law and fact.  Hartung v. Comm’r of Pub. Safety, 634 N.W.2d 735, 737 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001).  We review the district court’s findings for clear error on the issue of whether the driver has made a diligent and good-faith effort to contact an attorney.  Id.  Once the facts are established, we make a legal determination of whether or not the driver “was accorded a reasonable opportunity to consult with counsel based on the given facts.”  Kuhn, 488 N.W.2d at 840.

The district court ruled that Blaine “did not diligently attempt to contact any available attorney; he merely attempted to contact attorneys with whom he was acquainted.”  The court also found that Blaine “chose not to attempt to seek counsel from other local attorneys listed in the directories provided.”  Blaine disputes the court’s finding that he did not make a diligent effort to contact a lawyer, but that finding is supported by the record.

A driver is deemed to have made a good-faith effort to contact a lawyer when he diligently used the opportunity provided by the officer to contact a lawyer.  Linde v. Comm’r of Pub. Safety, 586 N.W.2d 807, 809 (Minn. App. 1998).  A driver may await a return call but “cannot be permitted to wait indefinitely for a call that may never come . . . .”  Palme v. Comm’r of Pub Safety, 541 N.W.2d 340, 345 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996).  “[R]efusing to try to contact more than one attorney or giving up trying to contact an attorney is fundamentally different from making a continued good faith effort to reach an attorney.”  Kuhn, 488 N.W.2d at 841.

Blaine’s desire was to reach his own attorney and he made several calls to try to find his telephone number.  He was unsuccessful.  He did succeed in reaching a receptionist of some sort connected with Burns’ office and, after leaving a message with her, he ceased his effort to contact a lawyer.

In the 25 minutes Stellmach allotted to Blaine to contact a lawyer, Blaine called only one lawyer and did not reach him directly.  There was nothing to prevent Blaine from continuing his search while waiting for Burns to return his call.  Stellmach concluded, as did the district court, that Blaine’s effort to reach an attorney was not diligent, at least as of the time he ceased his search and opted to wait to see if Burns would call him back.

An officer may vindicate a driver’s right to consult counsel by providing him with a telephone and allowing him a reasonable time to contact a lawyer.  Id.at 840.  But the officer need not ensure that the driver actually contact a lawyer, especially if the driver elects to stop making calls.  McNaughton v. Comm’r of Pub. Safety, 536 N.W.2d 912, 915 (Minn. App. 1995).  If the driver is unable to contact a lawyer within a reasonable time, the officer may require the driver to decide to submit to testing in the absence of counsel’s advice.  Friedman, 473 N.W.2d at 835.

Generally, where an officer has given a driver access to a telephone and telephone directories, along with a reasonable amount of time to make calls, we have concluded that the officer has vindicated the driver’s right to counsel.  See Gergen v. Comm’r of Pub. Safety, 548 N.W.2d 307, 310 (Minn. App. 1996) (officer vindicated driver’s right by providing driver with telephone and directories for 36 minutes and offered to dial numbers), review denied (Minn. Aug 6, 1996); Palme,541 N.W.2d at 342 (officer vindicated driver’s right by providing driver with telephone and directories for 29 minutes before requiring driver to decide whether to test); Parsons v. Comm’r of Pub. Safety, 488 N.W.2d 500, 502 (Minn. App. 1992) (officer vindicated driver’s right by explaining that time to consult with counsel was limited and providing telephone and directories for 40 minutes).  Only arbitrary actions or actions that unreasonably hinder the driver’s exercise of the right fail to constitute officer vindication.  See Jones v. Comm’r of Pub. Safety,660 N.W.2d 472, 476 (Minn. App. 2003) (right not vindicated when dispatcher falsely advised attorney that time had expired); Duff v. Comm’r of Pub. Safety, 560 N.W.2d 735, 737-38 (Minn. App. 1997) (right not vindicated when officer instructed driver to end call with attorney before driver was able to obtain sufficient advice); Kuhn, 488 N.W.2d at 842 (right not vindicated when officer required driver to decide whether to test while driver was making efforts to contact attorney).

Although not legally impermissible, Blaine made choices that carried the risk that his reasonable time for consulting a lawyer would expire.  He spent much of his time trying to reach his brothers instead of a lawyer.  When he reached a receptionist for Burns’ office, he chose to wait in hopes of receiving a return call from Burns.  He made no effort at all to continue to contact a lawyer, despite the fact that he had not yet actually reached a lawyer.  And when Stellmach warned him that he had only ten minutes left, he chose not to call Burns again and impress upon the receptionist the urgency of the return call, and he chose not to look for other lawyers while he waited.

Considering the time allotted Blaine to contact a lawyer, and what he did and failed to do during that time, we hold that the district court did not commit clear error in ruling that Blaine did not make a good-faith effort to contact counsel and that the officer had vindicated his right to do so.

Affirmed.

 

MINGE, Judge (dissenting)

I respectfully dissent.  It is important that the right of the accused to consult with an attorney before submitting to a test include a reasonable time to attempt to reach counsel.  The right to counsel is fundamental.  Our supreme court has stated that “because of Minnesota’s lengthy and historic recognition of human rights, human dignity, and the procedural protection for the rights of the criminally accused, detention of drivers suspected of driving while under the influence is a criminal proceeding invoking the right to counsel.”  Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 836 (Minn. 1991).

The Friedman court identified the underlying tension at issue in these cases as a defendant’s right to counsel versus “the evanescent nature of the evidence in DWI cases.”  Id. at 835.  What has emerged from this tension is a limited right to counsel by which a defendant may, within a “reasonable time” and without “unreasonabl[e] delay,” consult with an attorney.  Id. at 835-36 (quotation omitted).  Out of respect for the right itself, we have refrained from “basing the ‘reasonable’ time criteria on a specific number of elapsed minutes” and instead employed a set of non-exclusive factors for analysis, among them the time of day at which a driver attempts to contact an attorney.  Kuhn v. Comm’r of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). 

During regular working hours, it is optimistic to expect a call back from an attorney within 10 minutes after leaving a message.  To expect that during the evening or on the weekend an attorney will both receive a message from and then return the call within 10 minutes is unrealistic.  As the law presently stands, the maximum time a driver may wait for a return call is capped at “indefinitely,” and “an officer must be allowed to reasonably determine that the driver has had enough time.”  Palme v. Comm’r of Pub. Safety, 541 N.W.2d 340, 345 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996).  Unless there are other important considerations until the time limit for obtaining a valid breath, urine, or blood sample is imminent, an accused who in good faith is actively seeking counsel or is awaiting a call back shall be allowed the available time to complete his effort to confer with counsel.  If this time is an hour, an hour ought to be available.  In addition, reasonable requests for resources available on the premises at the law enforcement center should be afforded the accused.

In this case, 10 minutes was too short a time for a call back.  There is no showing that any circumstances at the police station or otherwise dictated the 10-minute limit for a call back.  Respondent concedes that approximately an hour remained to obtain a valid sample.  In addition, appellant requested a Minneapolis telephone directory.  Although I do not suggest that every law enforcement center is obligated to have a full array of phone books, from the record it appears that appellant’s request was ignored.  Under these circumstances, I conclude appellant was not afforded a reasonable opportunity to locate or consult with legal counsel.