This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-97-969

Daniel Bernard Hedberg, Jr., petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed February 17, 1998

Affirmed

Crippen, Judge

Chisago County District Court

File No. C4961641

Richard L. Swanson, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN 55318 (for appellant)

Hubert H. Humphrey, III, Attorney General, Sean R. McCarthy, Assistant Attorney General, Suite 200, 525 Park Street, St. Paul, MN 55103-2106 (for respondent)

Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Schumacher, Judge.

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

CRIPPEN, Judge

Appellant challenges the revocation of his driving privileges, arguing that his right to consult with an attorney was not vindicated. We affirm.

FACTS

On December 19, 1996 at 2:30 a.m., appellant was arrested for driving while under the influence of alcohol. At the county jail, after the arresting officer read the standard implied consent advisory, appellant indicated he wanted to consult an attorney. At 2:59 a.m., appellant was furnished with a telephone and telephone book. He failed to reach two attorneys, but he left a message for the second lawyer. For the next 30 minutes, appellant made no further attempts to reach an attorney. After the officer indicated it was getting late and that appellant needed to make a decision, appellant called a third attorney and again left a message on the attorney's answering machine. Three minutes later, the officer testified that appellant indicated he was through attempting to contact an attorney. Testifying that he believed he had no choice, appellant submitted to an alcohol concentration test and his license was subsequently revoked.

D E C I S I O N

Whether a driver's right to counsel has been vindicated is a mixed question of law and fact. Parsons v. Commissioner of Pub. Safety, 488 N.W.2d 500, 501 (Minn. App. 1992). Establishing historical events presents a question of fact and once those facts are established, their significance becomes a question of law that we review de novo. Id.

Upon request, an individual has a limited right to obtain legal advice before deciding whether to submit to chemical testing, provided the administration of the test is not unreasonably delayed. Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).

Time is a consideration in determining the issue in this case; the courts also must consider the nature of appellant's opportunities to contact counsel in the time that elapsed. In circumstances like these, we find no authority suggesting that 38 minutes is too little time for vindication of the right to counsel. And time is immaterial if no good faith effort is made to reach an attorney. Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992) (holding that as a threshold matter a driver must make a good faith and sincere attempt to contact counsel), review denied (Minn. Oct. 20, 1992). In this case, appellant fails to show that he made a good faith effort. It is undisputed that he left a message with an attorney and then for the next 30 minutes made no further attempts to reach an attorney. The fact that appellant thereafter made a third call, leaving another message, and then proceeded to wait for an answer, albeit for only two minutes, under the totality of these circumstances only further diminishes the merit of his claim. See Parsons, 488 N.W.2d at 502 (holding that the totality of the circumstances must be considered in determining whether a given amount of time was reasonable). In this case, the trial court properly concluded that "the right to counsel does not mean * * * [I can] say I called, I left a message, and I'm now entitled to wait until they return my phone call."

Affirmed.

Dated: February 9, 1998