A05-354

State of Minnesota,

Respondent,

vs.

John Edward LaFond,

Appellant.

Filed January 10, 2006

Affirmed

Worke, Judge

Stearns County District Court

File No. T8-03-8015

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

Joseph M. Bromeland, Rajkowski Hansmeier Ltd., 11 Seventh Avenue North, P. O. Box 1433, St. Cloud, MN 56302 (for respondent)

Michael K. O’Tool, 18073 Bernard Trail, Brainerd, MN 56401 (for appellant)

Considered and decided by Minge, Presiding Judge; Willis, Judge; and Worke, Judge.

U N P U B L I S H E D O P I N I O N

WORKE, Judge

In this appeal from a misdemeanor DWI conviction, appellant argues that the police officer, who saw a white vehicle travel through an intersection without any headlights on and then pursued what he thought was the suspect vehicle, did not have a reasonable articulable suspicion to stop appellant’s vehicle. Appellant also argues that he was denied a meaningful consultation with counsel before deciding to submit to a chemical test and that his right to obtain an independent chemical test was not vindicated. We affirm.

FACTS

On May 9, 2003, at approximately 1:30 a.m., an officer observed a white Mazda van or pickup traveling without headlights on. The officer did a u-turn, losing sight of the vehicle for mere seconds, and then followed a white vehicle he believed to be the same vehicle he had just observed. It was raining heavily and no other traffic was in the area. The officer activated the emergency lights, and stopped the vehicle.

After stopping the vehicle, the officer made contact with the vehicle’s driver, appellant John Edward LaFond. The officer told appellant that he stopped him because he was driving without headlights on. Appellant replied: “Oh shoot.” After the officer observed indicia of intoxication and appellant admitted to having consumed alcohol, the officer asked appellant to submit to a preliminary breath test, which appellant refused. The officer told appellant that he was going to take him to the station because of appellant’s refusal and the officer’s observations. Appellant stated that he understood that the officer stopped his vehicle because he had been driving without headlights on.

At the police station, the officer asked appellant to perform field sobriety tests, which were delayed because of the rain, but appellant refused. At approximately 1:58 a.m., after the officer read appellant the Minnesota Implied Consent Advisory, appellant asked to contact an attorney. The officer provided appellant with a phone book and a telephone. Appellant sat around for awhile and then unsuccessfully attempted several times to contact his chosen attorney. The officer suggested that appellant try to contact a different attorney. Appellant finally contacted an attorney with whom he had a 15 to 20 minute conversation. At one point, appellant asked the officer for some privacy but the officer told him that because he was under observation, the officer was not leaving the room. During appellant’s conversation with his attorney, a second officer came into the room. This officer took the phone from appellant and told appellant’s attorney that they only had a couple minutes remaining for consultation. At that point, nearly an hour and a half had elapsed since the stop.

Appellant ended the conversation with his attorney at approximately 2:47 a.m. and agreed to submit to a breath test which revealed a .14 blood alcohol content. Appellant told the officer that he wanted an independent test and gave the officer a piece of paper on which he had written a telephone number to call to arrange the test. The officer told appellant that he could arrange for a test after he was transported to jail. The officer did not allow appellant to use the phone at the station because he was under arrest at the time and the officer was trained to take an arrested individual to jail and notify the jailers if a second test has been requested.

After arriving at the jail, the officer told a jailer not to put the paper with the telephone number on it into appellant’s property because appellant wanted to use it to make a call. A second jailer informed appellant that there was a phone available on a wall behind him if he needed to make any phone calls and that he needed to dial a nine to get an outside line. Appellant did not tell anyone at the jail that he wanted to call to arrange for a second test. No restrictions were placed on appellant’s use of the phone and appellant never called to arrange for an independent test.

At the evidentiary hearing, appellant moved to suppress the test result and dismiss the charges alleging the officer did not have a reasonable articulable suspicion for the stop, that his right to counsel had not been vindicated, and that he was denied an additional test. The district court denied appellant’s motion and the parties submitted the matter to the district court pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). The district court found appellant guilty of fourth-degree DWI and sentenced appellant to a stayed sentence of 90 days in jail. This appeal follows.

D E C I S I O N

Reasonable Articulable Suspicion

“When reviewing pretrial orders on motions to suppress evidence, we [] independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.” State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

Generally, officers may conduct investigatory stops if they are able to articulate a particularized and objective basis for suspecting criminal activity. State v. Smallwood, 594 N.W.2d 144, 155 (Minn. 1999). Under the Fourth Amendment of the United States Constitution, a police officer may “conduct limited stops to investigate suspected criminal activity when the police can point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.” State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000) (quotation omitted). The factual basis required to support an investigatory stop is minimal. State v. McKinley, 305 Minn. 297, 300, 232 N.W.2d 906, 909 (1975). But the stop must not be “the product of mere whim, caprice, or idle curiosity.” State v. Munson, 594 N.W.2d 128, 136 (Minn. 1999) (quotation omitted).

Here, the officer had a reasonable articulable suspicion to support an investigatory stop because appellant was driving without his headlights on at 1:30 a.m. in heavy rain, which is a traffic violation. See Minn. Stat. § 169.48, subd. 1 (2002). Appellant argues, however, that the officer did not have a reasonable articulable suspicion to believe that it was appellant’s vehicle he observed because the officer lost sight of the vehicle. While the officer admitted to losing sight of the vehicle as he completed a u-turn, and it was raining heavily, the officer also testified that there was no other traffic in the area at that time. Additionally, the officer observed a white van or truck with its headlights off and appellant was driving a white van. Moreover, when the officer stopped appellant’s vehicle he told appellant “[t]he reason why I stopped you is because you don’t have your lights on.” Appellant responded, “[o]h shoot[,]” and told the officer, “I do understand what just happened—the part about me driving without my headlights on.” The record supports the officer’s reasonable articulable suspicion for stopping appellant for driving without headlights on.

Appellant also argues that his headlights were on and the officer turned them off after he stopped appellant’s vehicle. The record, however, does not support this assertion and the district court determined that “the officer’s versions of the facts [are] most credible.” The district court did not err in determining that the officer had a reasonable articulable suspicion for stopping appellant.

Right to Counsel

A driver arrested for DWI has a limited right to consult with counsel before deciding whether to comply with the statutorily-mandated chemical testing. State v. Slette, 585 N.W.2d 407, 409 (Minn. App. 1998). An officer must provide reasonable assistance in vindicating this right to counsel. State v. Collins, 655 N.W.2d 652, 656 (Minn. App. 2003), review denied (Minn. Mar. 26, 2003). 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.

Appellant argues that his right to consult with counsel was not vindicated by merely being given an opportunity to speak with an attorney. Appellant contends that the district court only considered how much time he had access to a telephone and not how much time he actually consulted with an attorney. 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, 488 N.W.2d at 842. Generally, an officer has vindicated the driver’s limited right to counsel when the DWI arrestee is given access to a telephone and reasonable time to contact and consult with counsel. Slette, 585 N.W.2d at 409. In order to make a good-faith effort to contact an attorney, the driver must diligently use the time the officer has allowed. This right to consult with counsel, however, cannot unreasonably delay the testing. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). For example, 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).

At 1:58 a.m. appellant was given access to a phone book and a telephone. Appellant finally contacted an attorney and carried on a conversation for 15 to 20 minutes. Appellant ended the phone call with his attorney at 2:47 a.m. The district court did not err in determining that appellant had significant time in which to consult with an attorney.

Appellant argues, however, that it does not matter how much time he was afforded because the consultation with his attorney was not meaningful. Appellant contends that the officers interfered with his consultation by attempting to intimidate him by walking into the room and by one officer grabbing the phone and telling the attorney to move the conversation along. The officer, however, was only required to provide appellant access to a telephone and time to consult with an attorney. See Slette, 585 N.W.2d at 409. Appellant was afforded at least 49 minutes in which to consult with an attorney. The arresting officer testified that he could not leave the room because appellant was under observation. Further, appellant was provided meaningful consultation because he was given enough information in which to know to ask for an independent test. The second officer coming into the room, taking the phone from appellant and telling the attorney to end the conversation did not interfere with appellant’s right to consult with an attorney. An officer must be allowed to reasonably determine that the driver has had enough time, and at that point an hour and a half had elapsed since appellant’s stop. See Palme, 541 N.W.2d at 345. The district court did not err in determining that appellant’s limited right to consult with counsel before deciding whether to submit to a chemical test was vindicated.

Right to Independent Test

The question of whether a driver’s right to an independent test was prevented or denied is a mixed question of fact and law. Haveri v. Comm’r of Pub. Safety, 552 N.W.2d 762, 765 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996). Once the district court makes findings of fact, this court conducts a de novo review to determine whether, as a matter of law, the driver’s right to an independent test was prevented or denied. Id. “Generally, the district court’s findings must be sustained unless clearly erroneous.” Id.

The person tested has the right to have someone of the person’s own choosing administer a chemical test or tests in addition to any administered at the direction of a peace officer; provided, that the additional test sample on behalf of the person is obtained at the place where the person is in custody, after the test administered at the direction of a peace officer, and at no expense to the state. The failure or inability to obtain an additional test or tests by a person does not preclude the admission in evidence of the test taken at the direction of a peace officer unless the additional test was prevented or denied by the peace officer.

Minn. Stat. § 169A.51, subd. 7(b) (2002). In determining whether an additional test has been prevented or denied, we must draw a distinction between an officer’sfailing to assist and an officer’s hampering an attempt to obtain such a test. See Theel v. Comm’r of Pub. Safety, 447 N.W.2d 472, 474 (Minn. App. 1989), review denied (Minn. Jan. 8, 1990). “The only obligation an officer has in assisting the defendant in obtaining an additional test is to allow [the] defendant use of a phone.” Frost v. Comm’r of Pub. Safety, 348 N.W.2d 803, 804 (Minn. App. 1984).

Appellant argues that he was denied a second test because the officer did not give him a phone to use after he requested a second test. The facts of this case are similar to those in Short v. Comm’r of Pub. Safety, 422 N.W.2d 40 (Minn. App. 1988). In Short, the appellant argued that he had not been given timely access to a telephone while in custody and that an officer in the jail made misleading statements to him about his rights. Short, 422 N.W.2d at 42. Specifically, the appellant claimed that the officer told him that additional tests were not given at the jail. Id. at 41. While in custody for four hours, neither the appellant nor his attorney attempted to obtain an additional test. Id. This court affirmed the district court’s ruling that appellant was not prevented or denied his right to obtain a second test, noting that the record contained “no evidence that appellant was prevented or denied from arranging a test at the jail.” Id. at 42.

Here, appellant was told that he could arrange to have a second test when he arrived at the jail. Although appellant was told he had unlimited access to a telephone at the jail, appellant never told a jailer that he wanted to make a call to arrange for a second test, and appellant never used the phone at the jail. There is no evidence that appellant was prevented from arranging a second test. The district court did not err in determining that appellant’s unlimited access to a telephone at the jail provided him the opportunity to arrange for a second chemical test.

Affirmed.