Opinion
No. C0-98-1829.
Filed April 27, 1999.
Appeal from the District Court, Washington County, File No. C6-98-3497.
David L. Ayers, David R. Newcomb, Jr., Ayers Riehm, (for appellant)
Mike Hatch, Attorney General, Peter R. Marker, Assistant Attorney General, (for respondent)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Dean F. Lindgren appeals from an order sustaining revocation of his driving privileges under Minn. Stat. § 169.123 (1998). He challenges the trial court's conclusion that the arresting officer vindicated his right to counsel. Because Lindgren's right to counsel was vindicated, we affirm.
DECISION
When facts are undisputed, we review de novo to determine whether a driver's right to counsel was violated. State v. Christiansen , 515 N.W.2d 110, 112 (Minn.App. 1994), review denied (Minn. June 15, 1994). Under the Minnesota Constitution, a driver has the limited right to consult with counsel before deciding whether to comply with the statutory requirement of implied consent testing. Davis v. Commissioner of Pub. Safety , 517 N.W.2d 901, 902 (Minn. 1994); Friedman v. Commissioner of Pub. Safety , 473 N.W.2d 828, 837 (Minn. 1991). This limited right is vindicated if a driver "is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel." Friedman , 473 N.W.2d at 835.
Appellant argues that his right to counsel was not vindicated because Deputy Berg-Lindsey, the arresting officer, did not allow him to dial the telephone himself.
This court has never held, in the absence of other procedural deficiencies that limit a driver's ability to contact an attorney of the driver's own choosing, that mere refusal to allow a driver to dial the telephone personally constitutes a per se denial of the limited right to counsel.
Linde v. Commissioner of Pub. Safety , 586 N.W.2d 807, 809 (Minn.App. 1998), review denied (Minn. Feb. 18, 1999). Here, Deputy Berg-Lindsey made telephone books available to Lindgren and dialed the numbers he requested. Although Lindgren was not allowed to dial the telephone personally, he effectively had personal use of the telephone and a telephone directory for 14 minutes before he decided to waive his right to counsel. His right to contact counsel was not otherwise limited by law enforcement officials. Thus, we conclude that Lindgren's right to counsel was vindicated. See id. at 810.
Lindgren also claims that Deputy Berg-Lindsey interfered with his right to counsel by providing incomplete and misleading information. While attempting to reach an attorney, he asked her why he was calling an attorney, and she responded by paraphrasing a portion of the standard implied consent advisory which she had previously read to him. In response to his ensuing question of whether that was all she was going to be asking, she responded that that was all he would be answering.
Police officers are under no duty to give advice regarding the implied consent law beyond that required by statute. State v. Gross , 335 N.W.2d 509, 510 (Minn. 1983); see also Friedman , 473 N.W.2d at 833 (recognizing attorney, not police officer, is appropriate source of legal advice). A state does not violate the fundamental fairness inherent to due process by choosing not to advise individuals of all the possible consequences of refusing an alcohol concentration test. Moe v. Commissioner of Pub. Safety , 574 N.W.2d 96, 98 (Minn.App. 1998), review denied (Minn. April 14, 1998); see also Catlin v. Commissioner of Pub. Safety , 490 N.W.2d 445, 447 (Minn.App. 1992) (holding due process does not require advisory to explain every potentially unclear application of law).
Lindgren argues that his case is similar to State v. Slette , 585 N.W.2d 407 (Minn.App. 1998). In Slette , the defendant's right to counsel was violated, in part, because the police failed to clarify the defendant's request regarding whether he should talk to an attorney before taking the test and entered into a lengthy discussion that resulted in the police enumerating the defendant's legal rights. Id. at 410. In this case, however, Deputy Berg-Lindsey did not try to dissuade or coerce Lindgren from attempting to contact an attorney, but merely answered his two questions accurately. Although Deputy Berg-Lindsey did not fully explain the advantages of speaking to an attorney, a police officer does not shoulder that responsibility. Because Deputy Berg-Lindsey's statement was an accurate answer and not legal advice, she did not interfere with Lindgren's right to counsel.
We therefore affirm the order sustaining revocation of Lindgren's driver's license.