This opinion will be unpublished and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

A04-2279

 

State of Minnesota,

Respondent,

 

vs.

 

Robert John Rother,

Appellant.

 

Filed October 4, 2005

Affirmed

Gordon W. Shumaker, Judge

 

Blue Earth County District Court

File No. K1-03-1975

 

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Eileen M. Wells, Mankato City Attorney, Christopher D. Cain, Assistant City Attorney, 10 Civic Center Plaza, P.O. Box 3368, Mankato, MN 56002 (for respondent)

 

Peter J. Timmons, 2000 Wells Fargo Plaza, 7900 Xerxes Avenue South, Minneapolis, MN 55431 (for appellant)

 

            Considered and decided by Kalitowski, Presiding Judge; Shumaker, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

            Appellant Robert John Rother challenges his convictions of gross-misdemeanor and misdemeanor counts of driving while impaired, arguing that the results of a blood test should have been suppressed because his limited right to counsel was not vindicated when the arresting officer gave him insufficient time to consult with an attorney before submitting to the test.  Because Rother was given a sufficient opportunity to contact an attorney and declined to try to make such contact after one unsuccessful attempt, we affirm.

FACTS

On August 27, 2003, Mankato police officer Shawn McClinton stopped a car and arrested the driver, appellant Robert John Rother, for driving while impaired.

McClinton took Rother to the police station and read to him the Implied Consent Advisory at 3:29 a.m.  Rother said he wanted to consult with an attorney before deciding whether to submit to blood-alcohol testing.  McClinton gave him a telephone book and access to a telephone.  Rother called an attorney but did not reach him and instead left a message.

Eight or nine minutes later, while Rother was still waiting for a return call from the lawyer he contacted, McClinton asked him if he wanted to try to contact a different attorney.  Rother stated that he did not, but he did not affirmatively indicate that he was giving up his limited right to counsel.  McClinton then terminated Rother’s use of the telephone.

McClinton initially offered a breath test but then found that the Intoxilyzer was not working.  Rother then agreed to take a blood test, which was administered at a hospital 20 minutes later at about 4:00 a.m.  The test showed a blood-alcohol concentration of .18.

            At an omnibus hearing, Rother moved to suppress the test result on the ground that his limited right to counsel had not been vindicated.  The court denied the motion.  The parties then submitted the case to the court under State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980), and the court found Rother guilty of alcohol-related driving offenses.  Rother appealed. 

D E C I S I O N

            The determination of whether an officer has vindicated a driver’s right to counsel is a mixed question of law and fact.  Kuhn v. Comm’r of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).  This court reviews the district court’s findings for clear error on the issue of whether a driver has made a good- faith effort to contact an attorney.  Gergen v. Comm’r of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996).  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.”  Kuhn, 488 N.W.2d at 840.

Rother argues that his right to contact an attorney was not vindicated because he was not afforded a reasonable amount of time in which to contact the attorney of his choice.  Rother attempted to contact an attorney at 3:31 a.m., and Officer McClinton terminated his use of the phone at 3:40 a.m. 

A driver has a limited right to counsel before submitting to chemical testing for alcohol concentration, as long as the consultation does not unreasonably delay the testing.  Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).  There is no “definite or exclusive set of factors” for determining whether an officer provided a driver with a reasonable amount of time to contact an attorney.  Kuhn, 488 N.W.2d at 842.  The courts balance the officer’s vindication of the right to counsel against the driver’s good-faith efforts to exercise that right.  Id.  In order to make a good-faith effort to contact an attorney, the driver must diligently use the time the officer has allowed.  A driver may wait for a return call from an attorney but “cannot be permitted to wait indefinitely for a call that may never come,” 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).  If a driver tries to call an attorney but is unsuccessful and does not want another attorney, the driver’s limited right to counsel has been vindicated.  Mulvaney v. Comm’r of Pub. Safety, 509 N.W.2d 179, 181-82 (Minn. App. 1993).

Rother was given the opportunity to contact an attorney of his choice.  By 3:40 a.m. he was unable to reach his chosen attorney, but he was not prevented from contacting any other attorney.  In fact, Officer McClinton specifically asked Rother if he wanted to contact another attorney and Rother said “no.”  In Kuhn, this court stated that “refusing to try to contact more than one attorney or giving up trying to contact an attorney is fundamentally different than making a continued good-faith effort to reach an attorney.”  488 N.W.2d at 841.  Here, Rother did not make a “good faith and sincere effort to reach an attorney.”  Id. at 842.  Finally, the blood test was not administered until 4:00 a.m., 20 minutes after Officer McClinton terminated the use of the phone.  The attorney had not called Rother by that time, and Rother did not request any further opportunity to call that attorney or another before the blood test was administered.

Upon cursory review, it might appear that the allowance of only eight or nine minutes to contact a lawyer at 3:30 a.m. is unreasonable.  But the time allowed is only one factor in our analysis.  What Rother manifested to McClinton was that he tried unsuccessfully to reach a particular lawyer but was not interested in trying to contact another.  With that indication, the officer could have reasonably concluded that the allowance of additional time would be without purpose.  On this record, the district court did not err in determining that Rother’s limited right to counsel had been vindicated.

            Affirmed.