Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Raymond F. Schmitz, Olmsted County Attorney, Kaarin Long, Assistant County Attorney, 151 Fourth Street Southeast, Rochester, MN 55904 (for respondent)

Brandon Lawhead, 301 South Main Street, Austin, MN 55912 (for appellant)

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

Appellant challenges the admission of DWI test results in violation of his constitutional right to consult with counsel prior to making a decision whether to submit to testing. We reverse.

On September 20, 1997, appellant Terry Day was involved in a one-car accident; he was the driver and sole occupant of the vehicle. Police and an ambulance were called to the scene and Day was taken to the hospital. At the hospital, Deputy Kirby Long read the implied consent advisory to Day and received permission to take a blood or urine sample. However, Day was not read the statement regarding his right to consult an attorney. Deputy Long felt that Day's medical condition prevented any reasonable opportunity Day may have had to consult an attorney, hence Deputy Long decided not to read that part of the advisory. After several attempts to draw blood resulted in a sample too small to test, Deputy Long had the nurse take a urine sample from Day's catheter tube. Deputy Long did not inform Day that he was taking the urine sample, nor ask his permission.

At an omnibus hearing, Day moved to suppress the test results, arguing that his due process rights were violated by the procedure used to obtain the sample.

Where facts are undisputed, appellate courts apply de novo review to determine 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). The Minnesota Constitution gives a person the limited right to consult with an attorney before deciding whether or not to submit to chemical testing for blood-alcohol content. Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). A person must be informed of the right to consult with an attorney and the police officers must assist in the vindication of that right. Friedman, 473 N.W.2d at 835 (quoting Prideaux v. State, Dept. of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976)). If the attorney cannot be contacted within a reasonable time, the driver may be required to make a decision regarding testing in the absence of counsel. Id. The right to counsel is limited by "the evanescent nature of the evidence in DWI cases," but "[t]he defendant shall have the right to counsel." Friedman, 473 N.W.2d at 835.

Here, the district court determined that because there was no practical way to vindicate Day's right to counsel, the deputy was justified in not reading the section of the advisory notifying Day of this right. However, a police officer not only must inform the driver of the right to counsel but also must assist in vindicating this right. Butler v. Commissioner of Pub. Safety, 348 N.W.2d 827, 829 (Minn. App. 1984). Deputy Long did neither; he did not read that part of the advisory nor did he allow Day any time to consult an attorney. This is a clear violation of Day's constitutional rights. Police are required to give the information mandated by the implied consent statute. State v. Gross, 335 N.W.2d 509, 510 (Minn. 1983). Where a defendant's right to counsel is not vindicated, the court must suppress test results. State v. Nordin, 571 N.W.2d 242, 244 (Minn. App. 1997).

The district court justified Deputy Long's failure to inform Day of his right to counsel because of the doctor's hurry to take Day to another part of the hospital for further testing. However, Deputy Long could have informed Day of his right to speak to an attorney and explained that he had to make a decision quickly because the doctor wanted to do further tests. While sustaining a serious injury can be a reason to fail to read a right to counsel notice, Day was not so debilitated that he was incapable of making a decision, therefore, Deputy Long violated Day's right to counsel. Because Day's right was not vindicated, we reverse the district court and suppress the evidence used against him.

Reversed.