Opinion
No. C5-01-1045.
Filed February 5, 2002.
Appeal from the District Court, St. Louis County, File No. C301600227.
Steven J. Meshbesher, (for appellant)
Mike Hatch, Attorney General, Melissa J. Eberhart, Assistant Attorney General, (for respondent)
Considered and decided by Willis, Presiding Judge, Crippen, Judge, and Anderson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Challenging the trial court's decision to sustain the revocation of his driver's license, appellant Robert Johnston disputes the underlying determination that his right to counsel was vindicated. Because the record supports the trial court's findings that appellant voluntarily stopped trying to contact counsel and freely decided to refuse testing, we affirm.
FACTS
The facts here are generally undisputed. On the evening of January 20, 2001, appellant was stopped for speeding, subsequently arrested for driving under the influence, and transported to the Duluth Police Department. Officer James Rodman then read appellant the motor vehicle implied-consent advisory form and asked him if he would like to speak with an attorney. Appellant replied, "I would like to try to contact Geraldine Steen, but I'm not sure if I can get a hold of her since she is in Minneapolis at this hour."
At approximately 12:25 a.m. on January 21, 2001, Officer Rodman provided appellant with a telephone directory, a telephone, and 20 minutes to contact an attorney. Appellant asked how many phone calls he was allowed to make, and the officer responded, "[a]s many as you can here in about the next 20 minutes." After appellant unsuccessfully attempted to contact his fiancé to locate the telephone number for attorney Geraldine Steen, Officer Ann Clancey obtained a business listing for Ms. Steen. Appellant called Ms. Steen but was unable to reach her and left a message indicating that he was in Duluth and that he would probably not contact her before taking the test.
After appellant was unable to reach Ms. Steen, the officers encouraged him to speak with local counsel and informed him of the consequences if he refused the breath test. Appellant indicated that any attorney he did not know was incompetent to represent him, and he refused to take the test because he did not have "competent legal help." Their conversation ended at approximately 12:35 a.m. Appellant's driving privileges were revoked under Minn. Stat. § 169A.52, subd. 3(a) (2000) for refusing to submit to a breath test.
If an officer certified that probable cause existed to believe the person had been driving while impaired and "the person refused to submit to a test, the commissioner shall revoke the person's license * * * for a period of one year."
The trial court sustained the revocation of appellant's driver's license, finding that the police vindicated his right to counsel, and that he did not make a good-faith and sincere effort to reach an attorney and "can not now claim that he was prejudiced by his own actions."
DECISION 1.
Under the Minnesota Constitution, a driver has a limited right to consult an attorney of his own choosing before deciding whether to submit to chemical testing, provided that the consultation does not unreasonably delay the administration of the test. Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991) (holding that the right to counsel is limited because of the "evanescent nature of the evidence"); see Minn. Const. art. I, § 6 ("In all criminal prosecutions the accused shall enjoy the right * * * to have the assistance of counsel in his defense."). A police officer must inform the driver of the right to counsel and must assist in its vindication. Id. The driver's right to counsel is vindicated if the driver is provided with a telephone and given a reasonable amount of time to contact and consult with an attorney before deciding whether to take the breath test. Id. If counsel cannot be contacted within a reasonable time, the driver may have to decide whether to take the test without the advice of counsel. Id.
Reasonable time is not based on the number of elapsed minutes, but on (1) the police officer's duties in vindicating the right to counsel and (2) the defendant's diligent exercise of the right. Kuhn v. Comm'r of Pub. Safety, 488 N.W.2d 838, 842 (Minn.App. 1992), review denied (Minn. Oct. 20, 1992). Other factors that are relevant to this determination are the time of day the driver attempts to contact counsel and the length of time the driver has been under arrest. Id. The totality of the facts must be examined. Parsons v. Comm'r of Pub. Safety, 488 N.W.2d 500, 502 (Minn.App. 1992).
Appellant contends that the totality of the circumstances demonstrates that his right to counsel was not vindicated because (1) although he refused to contact more than one attorney, he made a good-faith effort to contact his attorney given the time of day; (2) he was not provided with a reasonable amount of time; (3) he received minimal assistance from the officers in vindicating his right to counsel; and (4) he was coerced into making an immediate decision by the officers. The determination of whether an officer vindicated a driver's right to counsel is a mixed question of law and fact. Kuhn, 488 N.W.2d at 840. Once the facts are established, this court makes a legal determination as to whether the defendant "was accorded a reasonable opportunity to consult with counsel based on the given facts." Id.
A. Driver's good-faith effort to contact an attorney.
The central question is whether the driver made "a good faith and sincere effort to reach an attorney." Kuhn, 488 N.W.2d at 842. Whether the driver made a good-faith effort to contact an attorney is a fact-specific inquiry, and the reviewing court only needs to determine if the trial court's finding is clearly erroneous. Gergen v. Comm'r of Pub. Safety, 548 N.W.2d 307, 309 (Minn.App. 1996), review denied (Minn. Aug. 6, 1996).
The trial court here specifically found that appellant did not make a good-faith and sincere effort to reach an attorney, reasoning that appellant was given every opportunity to contact local counsel after it became apparent Attorney Steen was not available. Instead of availing himself of that opportunity, [appellant] decided on his own to stop trying to reach another attorney. [Appellant] can not now claim that he was prejudiced by his own actions.
The trial court findings are consistent with the record. The officers gave appellant a telephone directory, a telephone, and 20 minutes to contact his attorney and told him that he could make unlimited calls within those 20 minutes. The record demonstrates that appellant experienced difficulty making a long distance call to his fiancé, forgetting to dial the proper area code and "9" to get an outside line. Although appellant contends that Officer Rodman told him that he could not call his fiancé to get his attorney's phone number, the record demonstrates that after appellant explained that his fiancé would be able to help him locate his attorney's number, the officer allowed him to make the call. See State v. Christiansen, 515 N.W.2d 110, 113 (Minn.App. 1994) (a driver cannot call family members for advice, but can call them to obtain an attorney's name and number), review denied (Minn. June 15, 1994). Before he attempted to call his fiancé again, the record reflects that Officer Clancey offered to assist him in locating Attorney Steen's number, obtained her business listing, and gave the number to appellant, who reached Ms. Steen's answering machine and left a message indicating that he was in Duluth and that he would probably not be able to reach her in time.
The record includes a videotape of the officers reading the implied-consent advisory form to appellant and the subsequent activity and conversation between appellant and the officers. The trial court reviewed this tape at the hearing and received it into evidence pursuant to the parties' stipulation.
It is undisputed that appellant only wanted to speak with one attorney, and after failing to reach Ms. Steen, did not disclose any further desire to get another listing for her or continue in an attempt to reach his fiancé to obtain Ms. Steen's home number. Rather, after the officers repeatedly asked appellant if he wanted to contact local counsel, he refused, explaining that any attorney he did not know would be incompetent to represent him. Although appellant alleges that he was coerced into making a difficult decision, the record demonstrates that the officers offered to provide him with more time to think about his decision and that he refused the test explaining, "I will not take the breath test because I do not have competent legal help." Because the record supports the trial court's finding that appellant did not make a good-faith and sincere effort to reach an attorney, it is not clearly erroneous. See Novack v. Northwest Airlines, Inc., 525 N.W.2d 592, 597 (Minn.App. 1995) (a finding of fact is clearly erroneous "only if, upon review of the entire evidence, a reviewing court is left with the definite and firm conviction that a mistake has been made.").
The court's finding is also consistent with Minnesota law, which construes refusing to contact more than one attorney or giving up trying to contact an attorney as fundamentally different from making a continued good-faith effort to reach an attorney. See Kuhn, 488 N.W.2d at 841. A driver's limited right to counsel is vindicated when the driver, after failing to reach one attorney, refuses to contact any other counsel. Eveslage v. Comm'r of Pub. Safety, 353 N.W.2d 623, 627 (Minn.App. 1984); see also Linde v. Comm'r of Pub. Safety, 586 N.W.2d 807, 810 (Minn.App. 1998) (concluding that appellant did not make a good-faith effort to contact an attorney when he repeatedly refused to contact local counsel even after it became apparent that his attorney of choice could not be reached), review denied (Minn. Feb. 18, 1999). Appellant freely decided to stop contacting counsel.
Eveslage was based on a statutory right to counsel, but because of a statutory amendment to the implied consent advisory in 1984, the supreme court held that a driver no longer has a statutory right to counsel before submitting to chemical testing. See Nyflot v. Comm'r of Pub. Safety, 369 N.W.2d 512, 515 (Minn. 1985), appeal dismissed, 474 U.S. 1027, 106 S.Ct. 586 (1985). In Friedman, the supreme court held that under Minn. Const. art. I, § 6 an individual has a limited right to consult with an attorney before deciding whether to submit to chemical testing. Although the present case is based on a constitutional right to counsel, the analysis in Eveslage provides guidance in determining whether a driver reasonably exercised his right to counsel. See Kuhn, 488 N.W.2d at 841 ("it is appropriate to look at decisions based on the statutory right to counsel * * * for guidance" when deciding cases based on a constitutional right to consult with a lawyer).
Appellant contends that he did make a good-faith effort, despite the seven minutes he was allotted to contact an attorney, and alleges that he should have received more time because he was trying to contact counsel at 12:25 a.m. Although appellant is correct in stating that drivers should be given more time to contact attorneys in the early morning hours, he was offered 20 minutes. See Kuhn, 488 N.W.2d at 842 (holding driver should be given more time in early morning). The video record of the event does not indicate that the officers forced him to make a decision within seven minutes; rather, it indicates that he chose to stop trying after seven minutes elapsed. The officer offered to give appellant more time to think about the test and suggested that he contact local counsel, but appellant refused and stated, "I tried to contact my attorney and she's not available at this time, and I have to wait." This court has specifically held that an officer can determine when the driver has received enough time to contact an attorney if the driver is insisting on waiting for a specific attorney.
A driver cannot be permitted to wait indefinitely for a call that may never come, and an officer must be allowed to reasonably determine that the driver has had enough time.
Palme v. Comm'r of Pub. Safety, 541 N.W.2d 340, 345 (Minn.App. 1995), review denied (Minn. Feb. 27, 1996).
The record confirms the trial court finding that appellant did not make a sincere effort to contact counsel, and he cannot now claim that he was prejudiced by his own actions. See Gergen, 548 N.W.2d at 310 (legislature did not intend "to protect drivers who were too confused or too intoxicated to exercise their rights under the implied consent law").
B. Police officer's duties in vindicating the right to counsel.
This court must balance the officers' efforts in vindicating appellant's right to counsel with appellant's diligent exercise of that right. See Kuhn, 488 N.W.2d at 842 (relevant factors in determining whether appellant was afforded reasonable time to consult with an attorney are (1) the police officer's duties in vindicating the right to counsel, and (2) the defendant's diligent exercise of that right). Police officers must assist in the vindication of the right to counsel, and vindication occurs if the officer provides a telephone and a reasonable amount of time to contact an attorney. Linde, 586 N.W.2d at 809 (quotation omitted). An officer need not ensure that a driver actually contacts an attorney, particularly when the driver chooses to stop calling one. Kuhn, 488 N.W.2d at 841-42; see also Gergen, 548 N.W.2d at 310 (officer vindicated driver's right to counsel by providing telephone and directory for 36 minutes and offering to dial any telephone number, other than an 800 number, selected by driver).
Appellant contends that the officers provided him with minimal assistance and pressured him into making a difficult decision without the assistance of counsel. The trial court found that the officers assisted him in locating an attorney and gave him every opportunity to contact local counsel. The record reflects that Officer Rodman and Officer Clancey (1) informed appellant of his rights, including his right to counsel; (2) provided him with a telephone directory, a telephone, and 20 minutes to contact an attorney; (3) helped him find attorney Steen's number; (4) helped him dial long distance; and (5) encouraged him to seek local counsel. Moreover, the officers explained the consequences of refusing to submit to the breath test. Although the trial court focused on appellant's good-faith effort to contact counsel, the court also implied that the officers properly assisted appellant in his efforts to vindicate his right to counsel. The record demonstrates that the officer provided adequate assistance and vindicated appellant's right by giving him the opportunity to call an attorney. Appellant cannot now claim that he was prejudiced when, after approximately ten minutes, he stopped trying to contact another attorney just because Ms. Steen could not be reached. The trial court properly determined that appellant's right to consult with an attorney was vindicated and that revocation of his driver's license should be sustained.
2.
A driver's license may be revoked if the driver refuses to submit to chemical testing under the implied consent statute. Minn. Stat. § 169A.52, subd. 3(a) (2000). An affirmative defense is available to a driver if the refusal was reasonable. Minn. Stat. § 169A.53, subd. 3(c) (2000). If a driver's right to counsel is not vindicated, a refusal to test is reasonable. Frost v. Comm'r of Pub. Safety, 401 N.W.2d 454, 456 (Minn.App. 1987). "Whether one has refused testing [for the presence of alcohol] is a question of fact." Busch v. Comm'r of Pub. Safety, 614 N.W.2d 256, 258 (Minn.App. 2000) (citation omitted). "On appeal, a district court's factual findings will not be disturbed unless clearly erroneous." Id. (citation omitted). "Conclusions of law may be reversed if the district court erroneously construed the law." Id. (citation omitted).
Appellant contends that his refusal to take the test was reasonable but makes this claim only by reiterating that his right to counsel was not vindicated. He argues that he was coerced by the officers into refusing the test without the assistance of counsel. As respondent notes, appellant did not raise the affirmative defense of a reasonable refusal at trial, and the trial court did not specifically decide the issue of whether appellant's refusal was reasonable. This court will not consider issues that the trial court did not decide in an implied consent hearing. Berge v. Comm'r of Pub. Safety, 588 N.W.2d 177, 179 (Minn.App. 1999).
Furthermore, the record demonstrates that appellant was not coerced into making the decision, but rather that he voluntarily stopped trying to consult another attorney. Police, who offered appellant time to contact another attorney, vindicated his right to consult with an attorney; thus, his refusal to submit to chemical testing was not reasonable.