Opinion
No. C2-98-780.
Filed December 8, 1998.
Appeal from the District Court, Washington County, File No. CX975033.
David L. Ayers, and Dean S. Grau, (for appellant).
Hubert H. Humphrey III, Attorney General, Peter R. Marker, Jeffrey F. Lebowski, Assistant Attorneys General, (for respondent).
Considered and decided by Kalitowski, Presiding Judge, Shumaker, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Appellant James Eric Sanchez contends the district court erred in sustaining the revocation of his driver's license because he was not given sufficient time to speak with his attorney to vindicate his right to counsel. We affirm.
DECISION
Whether a person has been allowed a reasonable time to consult with an attorney is a mixed question of law and fact: once the facts have been established, the application of the law requires de novo review. Parsons v. Commissioner of Pub. Safety , 488 N.W.2d 500, 501 (Minn.App. 1992).
A driver has a right to consult with counsel before deciding whether to submit to blood or urine testing. Friedman v. Commissioner of Pub. Safety , 473 N.W.2d 828, 832 (Minn. 1991). Because of the evanescent nature of the evidence in DWI cases, the amount of time in which the accused may consult with counsel is limited. Id. at 835. The right to counsel will be considered vindicated if the accused is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel. Prideaux v. State, Dep't of Pub. Safety , 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976).
A number of competing factors are considered in determining whether a reasonable time was allowed for an accused to consult with counsel. See Kuhn v. Commissioner of Pub. Safety , 488 N.W.2d 838, 842 (Minn.App. 1992) ("[B]asing the `reasonable' time criteria on a specific number of elapsed minutes alone is improper.") Those factors focus on the police officer's duties in vindicating the right to counsel and the defendant's diligent exercise of that right. Id. The amount of time that an accused has is just one factor in determining whether a "reasonable" time was afforded the accused to consult with an attorney. Id.
Appellant argues relying on Duff v. Commissioner of Pub. Safety , 560 N.W.2d 735 (Minn.App. 1997), that he was not afforded a sufficient opportunity to have a meaningful consultation with his attorney. In Duff , this court held that because the arresting officer told Duff to end his phone conversation without knowing how long Duff had spoken, and without knowing who he was speaking to that Duff's right to counsel was not vindicated. Id. at 737.
Here, appellant had approximately 13 uninterrupted minutes to talk to his attorney, followed by an additional approximately 4 minutes to wind up the conversation. Appellant neither asked the officer who interrupted him for additional time to consult with his attorney, nor protested the interruptions. Moreover, the officer determined that appellant had an adequate time with which to consult with his attorney. Finally, appellant did not present any evidence indicating he was not sufficiently informed of his rights or that he required additional information. We conclude Duff does not control, and appellant was allowed sufficient time to have a meaningful consultation with his attorney.
Appellant contends we must reverse because the district court's decision was inconsistent with the court's observation that rights and duties as they relate to testing and DWI law are too complicated to be explained in a short amount of time. We disagree. First, the district court's observation was dicta. Further, appellant was not entitled to a full explanation of all of his rights and duties under DWI law during his consultation, only to advice on whether to submit to testing. See Friedman , 473 N.W.2d at 835 ("[U]nder the right-to-counsel clause in article I, section 6 of the Minnesota Constitution, an individual has the right, upon request, to a reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing."). We conclude the district court's observation does not constitute reversible error.
The district court properly determined that the totality of the circumstances, not just the time allowed, indicates appellant had a reasonable time in which to meaningfully consult with his attorney about whether to submit to alcohol testing, and therefore appellant's right to counsel was vindicated.