A05-1482

State of Minnesota,

Respondent,

vs.

David P. Burmayer,

Appellant.

Filed September 5, 2006

Affirmed

Hudson, Judge

Hubbard County District Court

File No. TX04002361

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

Gregory D. Larson, Hubbard County Attorney, Hubbard County Courthouse, 301 Court Avenue, Park Rapids, Minnesota 56470 (for respondent)

Rich Kenly, Kenly Law Offices, P.O. Box 31, Backus, Minnesota 56435 (for appellant)

Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Hudson, Judge.

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

HUDSON, Judge

Appellant challenges a pretrial order denying his motion to suppress the results of an Intoxilyzer test in his prosecution for driving while impaired, arguing that police failed to vindicate his right to counsel. Because the record reflects that police provided a telephone and a reasonable time for appellant to contact an attorney, and did not actively mislead appellant as to the consequences of waiving his right to speak with an attorney, we affirm.

FACTS

A Hubbard County deputy observed a vehicle proceeding on Highway 200 in the late evening with only one headlight lit and no light over the rear license plate. The officer followed the vehicle and saw it make a sharp turn, nearly going into a ditch on the left side of the road. He then activated his emergency lights and attempted to make a stop. When the vehicle did not stop but appeared to pick up speed, the officer activated his siren, and the vehicle stopped. The officer identified appellant David Burmayer and had him perform field sobriety tests, which he failed. A preliminary breath test registered an alcohol concentration of .163, and the officer arrested appellant for driving while impaired (DWI). A search of the vehicle revealed eleven empty beer cans and a partial case of unopened beer.

A transcript of appellant’s interview with police after his arrest reflects that after the officer transported appellant to the Hubbard County jail, the officer read appellant the implied consent advisory and asked him if he understood it. Appellant indicated that he understood and asked the officer about the legal consequences of taking the test. The officer stated that appellant’s prior convictions were over ten years old, that the results of the preliminary breath test indicated a charge of fourth-degree DWI, and that test refusal would increase the offense to a gross misdemeanor. Appellant expressed that he would lose his job whether he took the test or not because he would lose his “cdl” (commercial driver’s license). He asked if the police had the phone number of his attorney. The officer replied that he needed to know whether appellant wished to consult an attorney. When appellant stated that he did, the officer directed him to the location of the phone books and stated that if he could not reach his attorney, there were other attorneys. Appellant then stated, “yeah well he’s my he the main man I guess something else he done but you know the whole things is the bottom line is in your opinion I’m still going to go to court for a [DWI] right [?]” The officer replied, “Correct.” Appellant then gave his consent for the Intoxilyzer test, which showed an alcohol concentration of .15.

Appellant was charged with fourth-degree DWI and an open-bottle violation. He moved to suppress the results of the Intoxilyzer test, arguing that the police officer did not vindicate his limited right to counsel because the officer did not provide time to use the phone books or a telephone and misled appellant by indicating that he would go to court regardless of an attorney’s advice. The district court denied the motion to suppress.

Appellant was tried and convicted of fourth-degree DWI on stipulated facts under the procedure in State v. Lothenbach, 296 N.W.2d 854, 857 (Minn. 1980). The open-bottle charge was dismissed. After this court affirmed the denial of the suppression motion on a limited record, appellant petitioned the supreme court for further review, obtained a transcript, and clarified the procedural history of the case. The supreme court, in the interests of justice, remanded to this court for reconsideration of the appeal.

D E C I S I O N

Drivers have a limited right to counsel before deciding whether to submit to chemical testing. Minn. Const. art. I, § 6; Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). “The right to counsel will be considered vindicated if the person is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.” Friedman, 473 N.W.2d at 835 (quotation omitted). On undisputed facts, this court considers de novo 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).

Appellant argues that he was denied the use of a telephone to contact his attorney because the police interview transcript following his arrest does not affirmatively indicate the presence of a telephone in the interview room. But the transcript shows that the police officer asked appellant twice if he wished to consult with an attorney, showed him where there were available phone books, and stated that if he could not reach his attorney, there were other attorneys. Appellant declined to use the phone books to look for an attorney. Because the record shows that the officer provided phone books for appellant to use to find an attorney, the fact that the interview transcript does not affirmatively show the presence of a telephone in the interview room does not give rise to an inference that appellant was denied the right personally to use a telephone.

Appellant also argues that he was induced to waive his right to speak with an attorney because he was actively misled by the police officer’s positive response when he asked the officer’s opinion on whether he would “still be going to court for a DWI.” An officer’s response to a defendant’s questions about the implied consent advisory is actively misleading and in violation of due process if it threatens charges the state lacks authority to impose. McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848, 855 (Minn. 1991). But the police report indicates the officer’s observation of appellant’s erratic driving behavior and appellant’s failure of three field sobriety tests. An officer may issue a citation for DWI that is not based on breath test results. See Minn. R. Crim. P. 1.04(c); 4.02, subd. 5(3); and 6.01, subd. 1(1)(a) (providing that officers may issue citations for DWI); Minn. Stat. § 169A.20, subd. 1(1) (2004) (prohibiting driving while under the influence of alcohol). Therefore, the officer’s statement did not threaten charges that the state was unauthorized to impose, and we conclude that the officer did not actively mislead appellant into waiving his right to consult an attorney.

Appellant finally argues that he was not given reasonable time to consult with an attorney before taking the test. But the transcript shows that appellant unequivocally agreed to waive his right to consult with an attorney and take the breath test. The officer verified this waiver before giving the test. The record provides no indication that appellant changed his mind or attempted to withdraw the waiver in the presence of the officer. Cf. State v. Slette, 585 N.W.2d 407, 409 (Minn. App. 1998) (holding that officer’s refusal to recognize withdrawal of waiver was error when appellant changed mind within a few minutes). Because the record does not support a finding that appellant attempted to withdraw his waiver of the right to consult with an attorney in the presence of the officer, the officer appropriately terminated the interview at that point, and we affirm.

Affirmed.