Hubert H. Humphrey, III, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Crippen, Judge, and Harten, Judge.

Appellant Tamara J. Capello disputes the trial court order sustaining the revocation of her driver's license, contending that her right to counsel was not vindicated and that the arresting officers did not have probable cause to believe that she had been driving while under the influence. We affirm.

FACTS

After appellant was arrested for driving while under the influence, an officer read her the implied consent advisory. She asserted her right to contact an attorney before deciding whether to take the alcohol concentration test.

At the police department, the officers provided appellant with a telephone. The officers testified that she had telephone books to use, but she claims she did not. Instead, she testified that she gave the telephone number of her attorney, which she had memorized, to one of the officers, who dialed it for her. That officer testified he could not recall whether he dialed the number for her.

Capello was unable to contact her attorney. She testified that she told the officers she reached an answering machine and asked them, "Now, what?" She recalled that one officer told her to take the test, while the other told her she would have to decide whether to take the test. Remembering she had been told that if she did not take the test she would lose her license, and because she did not believe she could call another attorney or make additional telephone calls, she agreed to take the test.

The officers testified that appellant's phone call attempt lasted for two minutes and that she was then asked to take the alcohol test. The less experienced officer explained that appellant had a certain attorney with whom she wanted to consult and that she became upset when she was unable to contact him. The officers asked her to take a breath test because they did not want to continue to argue with her. But the less experienced officer was not sure how many calls she made or whether she asked for more time.

The more experienced officer testified that if appellant had wanted more time, they would have given it to her. He explained that he always gives people adequate time to contact counsel, which sometimes may be more than 20 minutes, and he will go out of his way to assist them in obtaining an attorney. In this case, he determined that appellant had given up trying to contact an attorney, although she did not say so explicitly.

D E C I S I O N

Conclusions of law will not be reversed unless the trial court erred. Dehn v. Commissioner of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986). Whether the police have given a driver a reasonable amount of time to contact counsel is a legal question that requires balancing a number of factors. Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 840, 842 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992); Parsons v. Commissioner of Pub. Safety, 488 N.W.2d 500, 502 (Minn. App. 1992). Where the evidence and inferences to be drawn from the evidence conflict on underlying fact questions, the trial court must make findings and these will not be set aside unless clearly erroneous. Minn. R. Civ. P. 52.01; State, Dep't of Highways v. Beckey, 291 Minn. 483, 486-87, 192 N.W.2d 441, 445 (1971).

As a threshold matter, the driver must make a good faith and sincere attempt to contact counsel. Kuhn, 488 N.W.2d at 842. The trial court here was troubled by the two-minute period that appellant used to contact counsel. But the court concluded that she had been given the opportunity to contact an attorney, that she could have had much more than two minutes to make this contact, and that she had exercised poor judgment when she used so little time. It found the officers' testimony credible, noting that it had heard them testify in previous cases and was familiar with their general practices. It also acknowledged it was influenced by the fact that appellant had been drinking, despite her medical condition. It declined to make a finding as to whether or not the officer had dialed the telephone for her.

Appellant challenges the trial court's factual decision that credits the officers' testimony over her testimony as to whether she wanted more time to contact counsel. She faults the officer who concluded she had given up trying to contact an attorney because he was unable to testify that she had said so explicitly and because he had not asked her whether she was done making phone calls. The officer demonstrated that appellant, without expressly saying so, had made it clear she wanted no further efforts to contact an attorney. She made only a single attempt to reach an attorney, said she was unable to reach anyone, and was unconditional in suggesting she was ready to go ahead with the test. The absence of evidence that appellant explicitly stated that she gave up her efforts to contact a lawyer is not so compelling as to make the trial court finding clearly erroneous.

Appellant complains that the trial court improperly cited its prior experiences with the officers in other cases. But one officer provided support in the record for this comment when he specifically testified as to his usual practice of assisting drivers in finding counsel in implied consent cases. Appellant also faults the trial court for failing to make a finding as to whether the officer dialed the telephone for her, charging that in this case the officer should have allowed her to do so. See Mulvaney v. Commissioner of Pub. Safety, 509 N.W.2d 179, 181 (Minn. App. 1993) (holding that absent extraordinary circumstances, drivers must be allowed to personally use telephone when trying to contact counsel). In this case, the trial court declined to make a finding. This issue would not be determinative in any event because the trial court found appellant no longer sought counsel. See id. at 181-82 ("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.").

Appellant contends that the Commissioner failed to meet his burden of proof as a matter of law, because the officers were unable to remember many details of the incident. See Davis v. Commissioner of Pub. Safety, 509 N.W.2d 380, 387 (Minn. App. 1993) (noting the importance of the right to counsel under current law, to give information once given an implied consent advisory, and stating the judicial resolve to ensure that the limited right to counsel is vindicated), aff'd on other grounds, 517 N.W.2d 901 (Minn. 1994). While more specific evidence would be desirable, the record is not so deficient as to make the trial court findings clearly erroneous. We uphold the trial court determination that the license revocation should be sustained despite appellant's claim that she had insufficient time to contact an attorney.

Appellant also contends there was insufficient evidence for the trial court to make a finding of probable cause. The officers testified that two taillights on appellant's van were not working and that she crossed the center line three times. They also cited the indicia of intoxication, including the odor of alcohol, bloodshot, watery eyes, slurred speech, poor balance, and her failure of the field sobriety and preliminary breath tests. See Martin v. Commissioner of Pub. Safety, 353 N.W.2d 202, 205 (Minn. App. 1984) (finding probable cause based on speeding offense, unusual action of stopping car on travelled portion of highway, odor of alcohol, and difficult conduct when stopped). Appellant, while not disputing the officers' observations, cited her medical condition as an alternative explanation for all of these indicia of intoxication. An innocuous explanation by a driver as to indicia of intoxication does not negate an officer's probable cause determination at the time the implied consent law is invoked. Poppenhagen v. Commissioner of Pub. Safety, 400 N.W.2d 799, 801-02 (Minn. App. 1987). Furthermore, appellant's medical condition was not such as to explain away all of the characteristics showing the presence of alcohol.

Affirmed.