Opinion
No. C7-01-379.
Filed September 25, 2001.
Appeal from the District Court, Crow Wing County, File No. C3002037.
Dennis M. Lothspeich, (for appellant)
Mike Hatch, Attorney General, Jeffrey S. Bilcik, Max A. Keller, Assistant Attorneys General, (for respondent)
Considered and decided by Crippen, Presiding Judge, Schumacher, Judge, and Shumaker, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant Thomas John Swanson was stopped and arrested for driving under the influence. Swanson consulted with his attorney and consented to chemical testing, which revealed an alcohol concentration of .10 or more. Swanson's driving privileges were revoked, and the district court sustained the revocation. Swanson contends that his right to counsel was not vindicated. We affirm.
FACTS
On July 29, 2000, at 5:47 a.m., a Crow Wing County deputy sheriff stopped Swanson and arrested him for driving under the influence. The officer transported Swanson to the Crow Wing County Jail and read him the Minnesota implied consent advisory. At 6:08 a.m., the officer provided Swanson with a telephone and telephone book, and Swanson contacted an attorney at approximately 6:10 a.m. Swanson spoke to the attorney for approximately seven minutes. The deputy then asked Swanson to decide whether he would submit to chemical testing. Swanson did not respond and continued speaking to the attorney.
About six minutes later, the deputy again asked Swanson to decide about the testing. Having spoken to the attorney for approximately 13 minutes at that point, Swanson then stated "all right," ended the conversation, and agreed to submit to a chemical test. Swanson did not ask for more time to consult with the attorney. Swanson testified that he felt he had no choice but to terminate his conversation and make a decision because the deputy "was getting fairly irate," "looking at his watch[,]" and "[b]anging on the desk." The court found it was clear that Swanson voluntarily ended the telephone conversation.
DECISION
The implied consent statute provides that any person who drives a motor vehicle consents to a chemical test to determine the presence of alcohol. Minn. Stat. § 169.123, subd. 2(a) (1998). Once an officer has lawfully invoked the implied consent procedure, a driver has the right, upon request, to a reasonable opportunity to consult with an attorney before deciding whether to submit to a chemical test. Minn. Stat. § 169.123, subd. 2(b)(4) (1998); Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).
Swanson contends that his right to counsel was not vindicated because the officer prematurely terminated his conversation with the attorney. Whether a driver has been allowed a reasonable time to consult with an attorney is a mixed question of law and fact. Parsons v. Comm'r of Pub. Safety, 488 N.W.2d 500, 501 (Minn.App. 1992). Establishing the chronology of events is a question of fact, and the significance of those facts becomes a question of law. Id. The district court's findings of facts will be reversed only if they are clearly erroneous. State v. Christiansen, 515 N.W.2d 110, 112 (Minn.App. 1994), review denied (Minn. June 15, 1994).
An officer may vindicate a driver's limited right to an attorney by providing a telephone and a reasonable amount of time to contact and speak with an attorney. Gergen v. Comm'r of Pub. Safety, 548 N.W.2d 307, 309 (Minn.App. 1996), review denied (Minn. Aug. 6, 1996). Reasonableness of the time does not depend on a specific number of elapsed minutes. See Kuhn v. Comm'r of Pub. Safety, 488 N.W.2d 838, 842 (Minn.App. 1992) ("the relevant factors focus both on the police officer's duties in vindicating the right to counsel and the defendant's diligent exercise of the right"), review denied (Minn. Oct. 20, 1992); Parsons, 488 N.W.2d at 502 ("totality of the facts" determine whether driver had opportunity to exercise constitutional right to consult with attorney).
Both Kuhn and Parsons, however, addressed the length of time that elapsed before an attorney was contacted rather than the reasonableness of the length of the phone conversation itself. A driver has a right to a meaningful consultation with an attorney. McNaughton v. Comm'r of Pub. Safety, 536 N.W.2d 912, 915 (Minn.App. 1995); see also Duff v. Comm'r of Pub. Safety, 560 N.W.2d 735, 738 (Minn.App. 1997) (holding that plaintiff's right to consult with attorney was not vindicated because officer terminated conversation and plaintiff was not given reasonable time to have meaningful consultation with attorney).
Swanson was stopped, brought to the police station, and provided a telephone and telephone directory. He was allowed to call the attorney of his choice. He contacted his attorney on the telephone fairly quickly and spoke to the attorney for approximately 13 minutes. Swanson claims that the officer was becoming impatient and irate and indicated by his words and actions that Swanson must terminate the conversation.
Review of the videotape confirms the district court's findings that Swanson voluntarily ended the telephone conversation. Although the officer looked at his watch and tapped on the desk with his fingers, he did not bang on the desk or appear to be irate. He appeared calm in manner and tone of voice. The officer asked Swanson three times to make a decision about testing, but the statements appear to be reminders to focus the subject of the conversation rather than directives to terminate the conversation. The district court's factual findings are not clearly erroneous. Swanson had reasonable time to consult an attorney. His limited right to counsel was vindicated.