Opinion
No. A03-349.
Filed May 4, 2004.
Appeal from the District Court, Koochiching County, File No. 36TX02885.
Jennifer J. Hasbargen, (for respondent).
Steven A. Nelson, (for appellant).
Considered and decided by Peterson, Presiding Judge; Lansing, Judge; and Halbrooks, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
In this appeal from a conviction of refusing to submit to a chemical test, appellant argues that (1) the district court erred when it denied his pretrial motion to suppress evidence because the officer did not have a basis to stop his vehicle and (2) his right to counsel was not vindicated. We affirm.
FACTS
Shortly before midnight, Deputy Charles Saari was on routine patrol on a two-lane state highway when he saw appellant Carl Emil Brown's vehicle coming from the opposite direction. As the two vehicles approached and passed one another, Saari saw that appellant's vehicle was driving over the fog line by about a quarter of the vehicle's width. In his rearview mirror, Saari saw the vehicle continue to straddle the fog line. Saari pulled over to let a vehicle behind him pass and then turned his squad car around in order to catch up to appellant's vehicle. Upon approaching appellant's vehicle, Saari saw it cross and drive over the fog line for approximately three to four seconds as appellant met on-coming traffic. Saari activated his emergency red lights and initiated a stop. Saari testified that he suspected that "the driver is either tired or the driver is fiddling with the radio, cigarette or something, not paying attention basically."
Sarri approached the vehicle and recognized appellant. Saari smelled an odor of alcoholic beverage coming from appellant and saw that appellant's eyes were bloodshot. Saari conducted three field sobriety tests, which appellant failed. Saari arrested appellant for driving under the influence of alcohol and transported him to the law enforcement center.
Saari read appellant the implied-consent advisory at 12:21 a.m. Appellant told Saari that he wanted to speak with his attorney, and a telephone was made available to appellant at 12:22 a.m. Appellant called his attorney twice. Both times, there was no answer, and appellant left a message. At 12:53 a.m., the phone was taken from appellant. Saari noted on the implied consent advisory form that appellant would not take a breath test until he talked with his attorney.
Appellant was charged with driving under the influence of alcohol and refusing to submit to testing in violation of Minn. Stat. §§ 169A.27, 169A.20, subd. 2 (2002). Appellant moved to dismiss the charges, arguing that all evidence should be suppressed because Saari had no lawful basis to stop appellant's vehicle. The district court found that Saari had reasonable, articulable suspicion to effect an investigatory stop of appellant's vehicle and denied appellant's motion.
A jury found appellant guilty of refusing to take a chemical test and not guilty of driving while under the influence of alcohol. The district court denied appellant's motion for a new trial. Appellant was sentenced, and this appeal from the judgment of conviction followed.
DECISION
When reviewing pretrial orders on motions to suppress evidence where the facts are not in dispute, appellate courts may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing — or not suppressing — the evidence. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). Underlying factual findings are subject to a clearly erroneous standard of review. State v. George, 557 N.W.2d 575, 578 (Minn. 1997). Upon review of a district court's determination of the legality of a limited investigatory stop, an appellate court reviews questions of reasonable suspicion de novo. State v. Britton, 604 N.W.2d 84, 87 (Minn. 2000). In determining whether a stop is justified, courts consider the totality of the circumstances. State v. Richardson, 622 N.W.2d 823, 825 (Minn. 2001).
Appellant challenges the district court's denial of his pretrial motion to suppress evidence, arguing that Saari did not have probable cause to stop his vehicle. But Saari did not need probable cause to stop appellant's vehicle.
"A brief investigatory stop requires only reasonable suspicion of criminal activity, rather than probable cause." State v. Pike, 551 N.W.2d 919, 921 (Minn. 1996). "A limited investigative stop is lawful if the state can show the officer to have had a `particularized and objective basis for suspecting the particular person stopped of criminal activity.'" Id. (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S.Ct. 690, 695 (1981)).
An actual violation of the vehicle and traffic laws need not be detectable. The police must only show that the stop was not the product of mere whim, caprice or idle curiosity, but was based upon "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."
Id., at 921-22 (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 So. Ct. 1868, 1880 (1968)).
Saari stopped appellant after seeing appellant's vehicle cross and straddle the fog line for several seconds twice in a short period of time. Appellant's unusual driving behavior was a specific, particularized, and objective basis that reasonably warranted Saari's stopping appellant. See State v. Ellanson, 293 Minn. 490, 490-91, 198 N.W.2d 136, 137 (1972) (officer who saw vehicle weaving within its lane in manner that officer did not believe constituted a traffic-law violation had right to stop vehicle to investigate the cause of the unusual driving).
Appellant argues that his right to counsel was not vindicated because he was not given a reasonable time to consult with counsel before Saari declared that he refused the test.
A driver has a limited right to consult with an attorney before deciding whether to submit to chemical testing for alcohol concentration. Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). A driver's right is vindicated when the driver is provided with a telephone and given reasonable time to contact and talk with an attorney. Id. Whether a driver's right to counsel was vindicated is a mixed question of fact and law. Hartung v. Comm'r of Pub. Safety, 634 N.W.2d 735, 737 (Minn. App. 2001), review denied (Minn. Dec. 11, 2001). Where 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." Kuhn v. Comm'r of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).
Courts consider several factors in determining whether a driver had a reasonable opportunity to consult with an attorney, including whether the driver was given reasonable time, whether the driver made a sincere and good-faith effort, whether the officer assisted the driver, whether the officer provided the driver a telephone directory, whether the driver was allowed to contact anyone the driver selected, the hour at which the driver was attempting to contact counsel, and the length of time the driver had been under arrest. See Kuhn, 488 N.W.2d at 842 (establishing nonexclusive list of factors); Parsons v. Comm'r of Pub. Safety, 488 N.W.2d 500, 502 (Minn. App. 1992) (recognizing competing factors to be considered).
Appellant argues that he was not advised what a reasonable time would be. But this court has determined "that basing the `reasonable' time criteria on a specific number of elapsed minutes alone is improper." Id. Therefore, there is no specific period of time that Saari could have advised appellant was a reasonable time.
Appellant argues that he should have been allowed more time to contact an attorney because of the time of day he was placing the calls. "A driver should be given more time in the early morning hours [to contact an attorney] when [locating] an attorney may be more difficult." Kuhn, 488 N.W.2d at 842. However, appellant did not even use the time that he was given to place calls; he made only two calls in 31 minutes.
Appellant also argues that the time that he was given was not reasonable because Saari asked for his final decision on the breath test more than one hour before the statutory period for testing elapsed. We recognize that it is a crime for a person to operate a motor vehicle "when the person's alcohol concentration at the time, or as measured within two hours of the time, of driving . . . is 0.10 or more." Minn. Stat. § 169A.20, subd. 1(5) (2002). But the fact that an alcohol-concentration test administered within two hours after driving could produce evidence of an offense does not mean that requiring a driver to make a decision about testing before the end of the two-hour statutory period denies the driver a reasonable opportunity to consult counsel. The test is not whether an officer could have done more to permit a driver to consult with counsel; the test is whether the things that the officer actually did accorded the driver a reasonable opportunity to consult with counsel.
Saari gave appellant a telephone and allowed him to make calls for 31 minutes. During that time, appellant made two calls to one attorney. Appellant understood that if he could not reach an attorney, he would have to make the decision on his own within a reasonable period of time. Appellant was also told that if he refused to make a decision, he would be considered to have refused the test. Appellant apparently chose not to make additional calls because he wanted to consult with a specific attorney. But even though appellant did not continue to make calls, he continued to have an opportunity to do so. We conclude that by giving appellant a telephone for 31 minutes and allowing appellant to make whatever calls he wished to make, Saari accorded appellant a reasonable opportunity to consult with counsel. See Linde v. Comm'r of Pub. Safety, 586 N.W.2d 807, 810 (Minn. App. 1998) (holding that driver did not make good-faith effort when he did not contact other attorneys after being unable to reach specific attorney), review denied (Minn. Feb. 18, 1999); Palme v. Comm'r of Pub. Safety, 541 N.W.2d 340, 345 (Minn. App. 1995) (stating that "driver cannot be permitted to wait indefinitely for a call that may never come"), review denied (Minn. Feb. 27, 1996).
Appellant states in his appellate brief that he was not advised that he would have to make the decision on his own if he were not able to obtain counsel. But this assertion directly conflicts with appellant's trial testimony. At trial, appellant was asked, "You are also not disputing that [Saari] told you if you were unable to contact an attorney, you would have to make your own decision, correct?" Appellant responded, "That's correct."