Opinion
No. C5-98-2183.
Filed July 20, 1999.
Appeal from the District Court, Mille Lacs County, File No. T9-97-2970.
Mike Hatch, Attorney General, and Jennifer Fahey, Mille Lacs County Attorney, Matthew Brune, Assistant County Attorney, (for respondent)
Michael L. Samuelson, (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Toussaint, Chief Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant Merlin Leif Eggen was convicted of driving under the influence of alcohol and refusal to take a breath test. He challenges those convictions, alleging his right to counsel was violated. We affirm.
FACTS
On August 23, 1997, at 10:54 p.m., Deputy William Hawley of the Mille Lacs County Sheriff's Department arrested appellant Merlin Leif Eggen for driving under the influence of alcohol. Hawley then transported appellant to the Mille Lacs County Sheriff's Department and read him the implied consent advisory. Hawley tape-recorded the reading of the advisory and later events.
Appellant told Hawley he wanted to contact an attorney. Hawley gave appellant a telephone book and telephone receiver and offered to dial attorney phone numbers for appellant. Appellant asked him to dial the number of a person appellant stated was an attorney. Hawley dialed the number. Almost immediately after starting the conversation, appellant asked Hawley whether he could make another call. Hawley asked twice whether appellant was talking to an attorney, but appellant did not respond. Hawley told appellant he did not believe he was talking to an attorney and instructed him to hang up the phone and attempt to call an attorney. Appellant did not protest or inform Hawley that he was talking to an attorney; instead he discontinued the call.
Appellant attempted several other calls, but was not able to contact an attorney. Appellant then asked to call an attorney at home and told Hawley that his attorney was Sal Spector. Appellant gave Hawley the same number he had given for the initial phone call. The sheriff's department dispatcher who overheard appellant's discussion with Hawley asked, "Isn't that the one you just dialed when you got in here?" Appellant responded, "Yep." The dispatcher stated, "That is not an attorney; you did not call an attorney," to which appellant only replied, "Oh." Appellant was not permitted to make the call.
Appellant was allowed 35 minutes to attempt calls before Hawley asked him to take a breath test. Appellant initially stated he would not comply until he consulted an attorney, but eventually agreed to take the test. When appellant was asked to give a breath sample, he began coughing and did not give an adequate sample. After several attempts, Hawley deemed appellant's failure to give an adequate sample a refusal. Appellant was issued a citation for driving under the influence of alcohol and refusal to submit to testing.
Appellant moved for an order suppressing all evidence of the request for chemical testing as well as the results of the testing, alleging a violation of his limited pretesting right to counsel. A Rasmussen hearing was held. At the hearing, appellant testified his first phone call was to Sally Spector, an attorney who had handled an earlier workers' compensation claim for appellant. Appellant also produced documentary evidence that Spector was a licensed attorney in good standing. The district court denied appellant's motion, concluding Hawley had a reasonable belief the person with whom appellant was speaking was not an attorney and, because appellant failed to respond to Hawley's inquiries, Hawley reasonably concluded appellant was not diligently exercising his right to counsel.
A trial was held on stipulated facts under Minn.R.Crim.P. 26.01, subd. 2. The trial court found appellant guilty of driving under the influence of alcohol and refusal to test. Appellant challenges his convictions, arguing the trial court erred when it determined his limited pretesting right to counsel was vindicated. Appellant contends his right to counsel was violated because: (1) he was not given a reasonable amount of time to consult with his attorney; (2) he was not given the opportunity to contact an attorney of his choice; and (3) he was not able to dial the telephone personally. Appellant also requests that we remand to the trial court for correction of clerical errors in the record.
DECISION I.
The question of whether a driver has been given a reasonable amount of time to contact an attorney is a mixed question of law and fact. Parsons v. Commissioner of Pub. Safety , 488 N.W.2d 500, 501 (Minn.App. 1992). Once the facts are established, their application is a question of law, which this court reviews de novo. Id. ; Kuhn v. Commissioner of Pub. Safety , 488 N.W.2d 838, 840 (Minn.App. 1992), review denied (Minn. Oct. 20, 1992).
A driver has a limited right to counsel before deciding whether to submit to chemical testing. Minn. Const. art. I, § 6; Friedman v. Commissioner of Pub. Safety , 473 N.W.2d 828, 835 (Minn. 1991). That right is vindicated when the driver is provided a telephone and given reasonable time to contact and speak with an attorney of his own choosing. Gergen v. Commissioner of Pub. Safety , 548 N.W.2d 307, 309 (Minn.App. 1996), review denied (Minn. Aug. 6, 1996). The determination of a "reasonable time" may not be decided solely based on the time elapsed, but rather must be decided based on the totality of the facts. Parsons , 488 N.W.2d at 502. Relevant factors include: (1) whether the driver made a good faith and sincere effort to contact an attorney; (2) what time of day the driver was attempting to contact an attorney; and (3) how long the driver was under arrest. Kuhn , 488 N.W.2d at 842.
Appellant contends his right to contact and speak to an attorney of his own choosing for a reasonable amount of time was not vindicated because Hawley instructed appellant to terminate his call to Spector after only four minutes and would not allow him to call her again. A driver's right to counsel is not vindicated where the driver's consultation with an attorney is terminated before the driver has had a reasonable time to meaningfully consult with the attorney. Duff v. Commissioner of Pub. Safety , 560 N.W.2d 735, 738 (Minn.App. 1997). But drivers may only call friends or relatives to obtain an attorney's name and number; they may not call friends or relatives for advice. State v. Christiansen , 515 N.W.2d 110, 113 (Minn.App. 1994), review denied (Minn. June 15, 1994).
In Duff , the officer ordered the driver to terminate his phone call without knowing who the driver was speaking to or how long the conversation had lasted. Id. at 737. The district court concluded the driver's right to counsel was vindicated, in part because the driver did not tell the officer he needed additional time for the consultation. Id. at 738. This court reversed, concluding the driver had no effective choice about whether to terminate the conversation because the officer's "manner in concluding the conversation made it clear to [the driver] that he was to obey." Id.
The situation in the instant case is significantly different. Although appellant told Hawley the number he was calling was that of an attorney, immediately after he began his conversation with Spector, appellant asked Hawley whether he would get another call. As the trial court found, that question gave Hawley a reasonable belief that appellant was not talking to an attorney. But, unlike the officer in Duff , Hawley did not immediately order appellant to terminate the call. Instead, he inquired twice about whether appellant was speaking to an attorney. Only when appellant did not answer, did Hawley instruct him to terminate the call.
This court has previously held a driver's right to counsel is not violated where the driver was not allowed to call his parents, but did not tell the officer he wanted to call them for the name and number of an attorney. Christiansen , 515 N.W.2d at 113. The reasoning underlying Christiansen is applicable here. A police officer cannot be expected to read a driver's mind. Further, an officer should not be required to believe the person called is an attorney when there is good reason to believe the opposite. Because Hawley reasonably believed appellant was not talking to an attorney, and made reasonable inquiries about whether appellant was talking to an attorney, appellant's failure to answer demonstrates his lack of a good faith effort to contact an attorney. Therefore, appellant's limited pretesting right to counsel was not violated when Hawley told appellant to end the phone call.
Appellant further contends his right to counsel of his own choosing was violated because he was not allowed to call attorney Spector a second time. This court has repeatedly made it clear that drivers are entitled to contact an attorney of their own choosing. See McNaughton v. Commissioner of Pub. Safety , 536 N.W.2d 912, 914-15 (Minn.App. 1995) (right to counsel not vindicated where driver was given pre-selected list of five attorneys); Delmore v. Commissioner of Pub. Safety , 499 N.W.2d 839, 842 (Minn.App. 1993) (right to counsel not vindicated where officer dialed public defender and handed driver the phone).
But in the instant case, Hawley gave appellant a telephone book and allowed him to call any number. When appellant was told he could not call Spector's number again because Spector was not an attorney, appellant did not protest that she was. He merely said, "Oh." Under these circumstances, it was reasonable for Hawley to maintain his belief that Spector was not an attorney and deny the call. Hawley did not otherwise limit appellant's choice of attorneys.
Finally, appellant contends he was denied his right to counsel because he was not allowed to dial the phone personally. Appellant relies on this court's holding in Mulvaney v. Commissioner of Pub. Safety , 509 N.W.2d 179 (Minn.App. 1993), that "absent extraordinary circumstances, drivers must be permitted to personally use the phone when trying to contact counsel." Id. at 181. But this court has subsequently explicitly held "that refusing to allow a driver to dial the telephone personally does not, by itself, deny the driver's right to counsel." Linde v. Commissioner of Pub. Safety , 586 N.W.2d 807, 810 (Minn.App. 1998) (right to counsel vindicated where driver was not allowed to dial the phone, but "effectively had personal use of the telephone, a telephone directory, and directory assistance for 38 minutes"); see also Gergen , 548 N.W.2d at 310 (right to counsel vindicated where officer provided telephone and directory for 36 minutes and offered to dial any number selected by driver). Aside from refusing to dial Spector's number a second time, which we have already determined was reasonable, Hawley dialed any number appellant requested for 35 minutes. Based on these facts, we conclude appellant effectively had personal use of the telephone.
II.
Appellant also identifies a recurring error on the tab charge, sentencing order, and sentencing transcript: the statute for refusal to test is incorrectly cited as Minn. Stat. § 169.129 (the correct citation is Minn. Stat. § 169.121, subd. 1a (Supp. 1997)).
If anything material to either party is omitted from the record by error or accident or is misstated in it, the parties by stipulation, or the trial court, either before or after the record is transmitted to the appellate court, or the appellate court, on motion by a party or on its own initiative, may direct that the omission or misstatement be corrected * * * .
The complained-of citation is clearly a clerical error; as such, we clarify that appellant was convicted for refusal to test in violation of Minn. Stat. § 169.121, subd. 1a.