Opinion
No. CX-96-1221.
Filed November 26, 1996.
Appeal from the District Court, Meeker County, File No. C496198.
Douglas V. Hazelton, (for Appellant)
Hubert H. Humphrey III, Attorney General, Jeffrey F. Lebowski, Assistant Attorney General, (for Respondent)
Considered and decided by Schumacher, Presiding Judge, Klaphake, Judge, and Amundson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Kathryn Jo Olson appeals from the revocation of her driver's license by respondent Commissioner of Public Safety, arguing she was given insufficient time to contact an attorney and her right to consult an attorney was not vindicated. We affirm.
FACTS
On February 18, 1996, at approximately 1:43 a.m., Olson was arrested for driving under the influence. Officer Richard Grates transported Olson to the Meeker County Law Enforcement Center for chemical testing. Subsequent events at the center were videotaped.
Grates began reading the implied consent advisory at 1:52 a.m. Grates asked Olson if she understood each of the four questions on the advisory. Olson did not respond to any of the questions.
At 1:55 a.m., Grates asked Olson if she wished to consult an attorney. Olson did not respond. Grates asked her again if she wanted to consult an attorney but received no immediate response. At approximately 1:58 a.m., Olson finally said she wanted to consult an attorney.
At 2:00 a.m., Olson asked for her purse "so nobody has it." Grates denied her request for safety reasons. Olson vigorously argued and swore at the officers and had to be physically restrained from reaching her purse.
At 2:05 a.m., phone books and a phone were provided to Olson. Olson said her attorney's number was in her purse. At that point, Grates allowed Olson access to her purse. Olson did not immediately look in her purse, but instead continued to argue with the officers.
Olson said she did not know her attorney's telephone number, but that her husband might. At approximately 2:10 a.m., the jailer phoned Olson's husband and handed Olson the receiver. Olson's husband offered some attorney names, but Olson rejected them. Olson began looking through her purse at 2:12 a.m. while still on the phone with her husband.
At 2:20 a.m., Olson found her attorney's card and gave her husband four numbers to call for her. Grates twice told Olson that she would have to call the attorney herself. At 2:23 a.m., Grates spoke with Olson's husband. At 2:25, Grates hung up without letting Olson talk to her husband again.
After hanging up the phone, Grates asked Olson whether she would take a blood or urine test. Olson refused, stating that she had been "through this before and been railroaded through it by young hero cops." Grates ended the time for consulting an attorney at 2:25 a.m. because he thought Olson was not making a reasonable effort to contact an attorney and was very uncooperative.
Grates asked Olson to sign the advisory form and the alcohol influence report at 2:34 a.m. Olson refused. At 2:35 a.m., the interview room phone rang. Grates left as the phone was ringing because the paperwork was finished. The jailer answered and told Olson that it was her attorney. The videotape ended. Olson's attorney advised Olson to submit to testing. The jailer told Olson that she could not retract her previous refusal.
The district court upheld the revocation of Olson's license. The court concluded that Olson "did not make a diligent effort to reach an attorney." The court also concluded that the officers "only partially vindicated" Olson's right to consult with an attorney because her "rights were somewhat diminished when Grates [asked if she would submit to a test] without further inquiry immediately after the first phone call [to her husband]." The court, however, concluded that "on balance" Olson was given a reasonable amount of time to consult an attorney. Olson appeals.
DECISION
1. A person arrested for driving while intoxicated has a limited right to consult an attorney before deciding whether to submit to chemical testing, provided the consultation does not unreasonably delay the testing. Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). Whether a driver was afforded a reasonable opportunity to consult with an attorney is a mixed question of law and fact. Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 840 (Minn.App. 1992), review denied (Minn. Oct. 20, 1992). The threshold question of whether the driver made a good-faith and sincere effort to contact an attorney "is a fact-specific inquiry, and this court need only determine whether the district court's finding is clearly erroneous." Gergen v. Commissioner of Pub. Safety, 548 N.W.2d 307, 309 (Minn.App. 1996), review denied (Minn. Aug. 6, 1996).
The videotape confirms that Olson tried to delay the process. Olson purposefully remained silent when asked direct questions about the implied consent advisory and two direct questions about whether she wished to consult an attorney. Olson continually argued with the officers and said that she loved to give the officers a hard time.
Telephone books and a phone were available for 20 minutes. Olson had her purse with her attorney's number in it for approximately 14 of those minutes but did not call an attorney. Olson spent approximately 15 of those minutes on the phone with her husband but did not call an attorney. We conclude Olson had a reasonable amount of time to contact an attorney.
2. A police officer not only must inform the driver of the right to counsel but must also assist in vindicating this right. Butler v. Commissioner of Pub. Safety, 348 N.W.2d 827, 829 (Minn.App. 1984). An officer may vindicate this limited right to counsel by providing a telephone and a reasonable amount of time to contact and speak with an attorney. Prideaux v. State, Dep't of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976). The court must focus on both "the police officer's duties in vindicating the right to counsel and the defendant's diligent exercise of the right." Kuhn, 488 N.W.2d at 842. Because Olson challenges only the district court's application of law to the facts, whether Olson's right to consult with an attorney has been vindicated is a question of law that this court reviews de novo. Parsons v. Commissioner of Pub. Safety, 488 N.W.2d 500, 501 (Minn.App. 1992).
The video confirms that Grates spent approximately 30 minutes repeating sections of the implied consent advisory, explaining Olson's rights, providing phone books and a phone, and allowing her to call her husband. During this time, Olson took 10 minutes to argue with the officers about access to her purse, which she did not indicate contained her attorney's telephone number. Olson then took another 15 minutes searching her purse and talking with her husband. Olson had her attorney's card and yet made no effort to call the attorney herself. Moreover, Olson never informed Grates that her attorney was going to call back. We conclude that Grates fully vindicated Olson's right to consult an attorney.