Opinion
No. C7-02-1543.
Filed: March 11, 2003.
Appeal from the Hennepin County District Court, File No. 02035662.
Mike Hatch, Attorney General, and Michele R. Wallace, MacMillan Wallace, PLLP, (for appellants)
Roger Gershin, Gershin Law Office, (for respondent)
Considered and decided by Lansing, Presiding Judge, Klaphake, Judge, and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2002).
UNPUBLISHED OPINION
The State of Minnesota appeals from a pre-trial order suppressing evidence under Minn.R.Crim.P. 28.04, subd. 1(1). The state argues that the district court erred in determining that respondent Cory Roger Anderson's right to counsel was not vindicated, although a police officer gave him 32 minutes to contact an attorney and he repeatedly tried to reach only one attorney. Because the district court's order is not clearly erroneous, we affirm.
DECISION
A person arrested for driving while impaired has, upon request, a limited right to consult with counsel before deciding whether to submit to chemical testing, provided that right does not interfere with proper administration of the test. Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991) (holding that right to counsel is limited because of evanescent nature of evidence); see Minn. Const. art. I, § 6 (in all criminal prosecutions, accused shall enjoy the right to assistance of counsel in own defense). Whether a driver's right to counsel has been vindicated is determined by the totality of the circumstances. Groe v. Comm'r of Pub. Safety, 615 N.W.2d 837, 841 (Minn.App. 2000), review denied (Minn. Sept. 13, 2000). When appealing a pretrial order, the state must show clear and unequivocal error in the district court's judgment. State v. Reckinger, 603 N.W.2d 331, 333 (Minn.App. 1999).
As a threshold matter, a driver must make a good-faith and sincere effort to reach an attorney. Gergen v. Comm'r of Pub. Safety, 548 N.W.2d 307, 309 (Minn.App. 1996) (quotation omitted), review denied (Minn. Aug. 6, 1996). The state argues that Anderson did not make a good-faith effort to reach an attorney because he attempted to reach just one attorney. The record demonstrates that: (1) Anderson was stopped at 1:32 a.m.; (2) at a maximum, Anderson was given 32 minutes to contact an attorney; (3) by 2:44 a.m., Anderson was required to make a decision as to the breath test; (4) Anderson tried to call his father, but he reached an answering machine and left two messages; (5) Anderson called his attorney's office number and heard a message advising clients to call his pager; (6) the attorney's pager number was continuously busy; (7) there was a possibility that Anderson's brother, who was also in custody, could have been tying up the telephone line; (8) the possibility that his brother was occupying the telephone line was significant enough that the officer discontinued the brother's telephone usage; (9) Anderson looked at a telephone directory but did not recognize any attorneys; and (10) Anderson continuously dialed the telephone during his telephone time.
The exact amount of time in unclear because Anderson took a bathroom break and the officer asked him some questions during that time. The state did not provide this court with the audio or videotape that was viewed by the district court.
The district court found that Anderson made a good-faith and sincere effort to contact his attorney, reasoning that
[Anderson] relentlessly called several numbers attempting to contact his attorney. [Anderson's] actions were in good faith and sincere as evidenced by his obvious frustrations and disappointments captured by the audio and video tapes. No evidence indicates, nor even suggests, that [Anderson] was using stall or delay tactics.
The district court also found that Officer Krob unilaterally terminated Anderson's telephone time and that only 51 minutes passed from arrest to refusal to submit to the chemical test. The state made no showing that allowing Anderson more time would have an impact on the viability of the evidence.
We conclude that the district court's findings are not clearly and unequivocally erroneous.