Opinion
No. C7-97-1090.
Filed February 3, 1998.
Appeal from the District Court, Sibley County, File No. C19727.
Thomas C. Gallagher, (for appellant)
Hubert H. Humphrey III, Attorney General, Joel A. Watne, Assistant Attorney General, (for respondent)
Considered and decided by Schumacher, Presiding Judge, Foley, Judge, and Forsberg, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Paul Edward Bird appeals from a trial court order sustaining the revocation of his driver's license under the implied consent statute. Minn. Stat. § 169.123 (1996). He contends that (1) the officer's reading of the implied consent advisory 30 minutes prior to the administration of the test was improper, (2) his right to counsel was not vindicated, and (3) his right to due process was violated. We affirm.
FACTS
On January 18, 1997, a Sibley County deputy arrested appellant for DWI after he failed a preliminary breath test (PBT). At the scene of the arrest, the officer read appellant the implied consent advisory. Appellant stated that he understood the advisory and replied "not really" when asked if he wished to contact an attorney. Appellant agreed to take the test. Approximately 30 minutes after reading the advisory, police administered the breath test that revealed a blood alcohol content of greater than .10.
The Commissioner of Public Safety revoked appellant's driver's license and the trial court affirmed the revocation. This appeal followed.
DECISION
On appeal, this court will reverse conclusions of law if the trial court erroneously construed and applied the law to the facts. Dehn v. Commissioner of Pub. Safety , 394 N.W.2d 272, 273 (Minn.App. 1986).
1. Implied Consent Advisory
Appellant's contention that the advisory should be given when the test is administered, not when the test is requested, is erroneous. See Minn. Stat. § 169.123, subd. 2(b) (1996) (requiring police to read advisory "at the time a test is requested"). The police properly read the advisory at the time the test was requested. Appellant indicated that he understood the advisory and declined the opportunity to speak to an attorney. The fact that the test was not administered until 30 minutes later at the police station is immaterial, because appellant was properly advised of his rights before he consented to take the test.
2. Right to Counsel
The Minnesota Constitution provides drivers with a limited right to consult with an attorney before deciding whether to submit to chemical testing for blood alcohol. Minn. Const. art. 1, § 6; Friedman v. Commissioner of Pub. Safety , 473 N.W.2d 828, 835 (Minn. 1991). In this case, appellant waived his right to counsel when he said, "not really" when asked if he wanted to consult an attorney. Thus, appellant's right to counsel was vindicated by his own waiver. See State v. Von Bank , 341 N.W.2d 894, 895-96 (Minn.App. 1984) (holding that defendant who replied, "Don't know" when asked if she wanted to consult counsel was adequately informed of her right to counsel).
3. Due Process
There is no evidence to show that appellant's due process rights were violated. Appellant never indicated at the time he consented to the test that he did not understand the advisory. He did not ask any questions and told the officer that he understood his rights. The officer never said or did anything to mislead or confuse appellant about his rights. Moreover, the officer had no reason to believe that appellant was confused about his rights. Thus, the officer did not violate appellant's due process rights.