Opinion
No. C2-98-827.
Filed January 5, 1999.
Appeal from the District Court, Stearns County, File No. K8-97-2236.
Michael A. Hatch, Attorney General, Catherine M. Keane, Assistant Attorney General, and
Roger S. Van Heel, Stearns County Attorney, Administration Center, (for respondent)
Michael L. Samuelson, (for appellant)
Considered and decided by Peterson, Presiding Judge, Klaphake, 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This opinion will be unpublished and may not be cited except as provided by Minn.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UNPUBLISHED OPINION
Because appellant did not inform officers that he wanted to call his girlfriend for help in consulting an attorney, an officer's statement that appellant could only call an attorney did not violate appellant's due process rights or his Friedman right to counsel. We affirm the district court's order refusing to suppress the results of appellant's Intoxilyzer test.
FACTS
Appellant Troy Nathe was charged with driving with a blood alcohol level above .10. After he was read the implied consent advisory, appellant indicated he wanted to consult with an attorney. When appellant was transported to the police station and offered a phone, appellant stated he wanted to call his girlfriend. The officer told appellant the only call he could make was to an attorney. Appellant then said he did not want to speak with an attorney and agreed to testing. Based on this record, the district court denied appellant's motion to suppress the test results. The parties agreed to a court trial on stipulated facts, preserving the suppression issue for appeal.
DECISION
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). Under the Minnesota Constitution, drivers stopped for DWI have a limited right to a reasonable amount of time to attempt to consult with counsel by telephone before deciding whether to comply with the statutory requirement of implied consent testing. Davis v. Commissioner of Pub. Safety , 517 N.W.2d 901, 902 (Minn. 1994) (citing Friedman v. Commissioner of Pub. Safety , 473 N.W.2d 828, 837 (Minn. 1991)). This limited right is vindicated if a driver "`is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.'" Friedman , 473 N.W.2d at 835 (citation omitted).
The Friedman right to counsel may include a reasonable time to contact a family member if a driver communicates to officers that the reason for the call is to obtain an attorney's name and phone number. State v. Karau , 496 N.W.2d 416, 419 (Minn.App. 1993). Absent such a communication, a driver has only the right to consult with an attorney, not any other person. Christiansen , 515 N.W.2d at 112; Stefano v. Commissioner of Pub. Safety , 358 N.W.2d 83, 85 (Minn.App. 1984).
Here, officers provided appellant with a telephone to contact an attorney. Appellant then told officers that he wanted to call his girlfriend. There is no evidence that appellant communicated to officers that he wanted to call his girlfriend to obtain the name or number of an attorney. Absent some communication by appellant that he was calling his girlfriend for the purpose of identifying an attorney, the officer's response did not interfere with appellant's Friedman right to counsel. See Christiansen , 515 N.W.2d at 112.
Appellant also argues that his due process rights were violated because the officer misstated the law. Officers comply with state and federal due process when they read the statutory implied consent advisory. Davis , 517 N.W.2d at 904; see also Moe v. Commissioner of Pub. Safety , 574 N.W.2d 96, 99 (Minn.App. 1998) ("Due process does not require implied consent advisory to explain every potentially unclear application of law."), review denied (Minn. Apr. 14, 1998). The advisory requires that officers inform a DWI arrestee of the right to consult with an attorney. Minn. Stat. § 169.123, subd. 2(b)(4) (1996). Officers are not required to inform a DWI arrestee of the right to call a family member for help in consulting an attorney. Christiansen , 515 N.W.2d at 112. Even if the officer's statement here was an incomplete statement of appellant's rights, it did not violate due process. See id. (holding no due process violation because officers are not required to give any more advice than mandated by law). But see McDonnell v. Commissioner of Pub. Safety , 473 N.W.2d 848, 855 (Minn. 1991) (due process violated when officers threatened criminal charges not authorized by statute).