Opinion
No. C8-98-1948.
Filed May 18, 1999.
Appeal from the District Court, Benton County, File No. K7-97-897.
Mike Hatch, Attorney General, (for respondent)
Michael S. Jesse, Benton County Attorney, Kirsta J. Majerus, Assistant County Attorney, (for respondent)
John D. Ellenbecker, (for appellant)
Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Schumacher, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
In an appeal from conviction and sentencing for an aggravated violation of driving while under the influence and refusal to submit to chemical testing, Douglas Haarstad challenges the district court's conclusion that his right to counsel was vindicated. Haarstad had a reasonable opportunity to consult with counsel before refusing to take a blood-alcohol test, and we affirm.
FACTS
A Benton County Deputy Sheriff arrested Douglas Haarstad for driving under the influence of alcohol. The deputy drove Haarstad to the Sauk Rapids Police Department, where he read Haarstad the Implied Consent Advisory. When Haarstad asked questions about the advisory, the deputy advised him to contact an attorney, gave him a telephone directory, and told him to select an attorney. Haarstad asked to contact a specific attorney, and the deputy assisted him in finding the attorney's telephone number. The deputy dialed the number, left a voice mail message, but then erased the message and gave the telephone to Haarstad. Haarstad accepted the telephone, paused, and then hung up. He told the deputy, "I don't need to leave a message. I'm just going to say no. I don't want to take the test."
At a pretrial hearing, Haarstad moved to suppress evidence of his refusal to submit to a test, arguing he had been denied his right to counsel. The district court denied his motion and on stipulated facts found him guilty of aggravated driving while under the influence, driving while under the influence, and refusal to submit to chemical testing. Haarstad challenges the convictions, asserting he was denied a reasonable opportunity to consult with counsel.
DECISION
Under the Minnesota Constitution, a driver stopped by an officer for suspicion of driving while under the influence of alcohol has a right to consult with counsel before deciding whether to submit to a chemical test. Friedman v. Commissioner of Pub. Safety , 473 N.W.2d 828, 832 (Minn. 1991); see Minn. Stat. § 169.123, subd. 2(b)(4) (1998). This limited right is vindicated if the driver is provided with a telephone and given a reasonable opportunity to consult with counsel. Friedman , 473 N.W.2d at 835.
In determining whether a driver had a reasonable opportunity to consult with an attorney, courts consider several factors, including whether the driver was given a reasonable time to contact counsel, whether the officer assisted the driver in contacting counsel, whether the officer provided telephone directories to the driver, whether the driver could contact anyone the driver chose to contact, the time of day the driver attempts to contact counsel, and the length of time the driver has been under arrest. See Kuhn v. Commissioner of Pub. Safety , 488 N.W.2d 838, 842 (Minn.App. 1992), review denied (Minn. Oct. 20, 1992); Parsons v. Commissioner of Pub. Safety , 488 N.W.2d 500, 502 (Minn.App. 1992); Friedman , 473 N.W.2d at 835. An officer's decision to dial the telephone personally is also a factor to be weighed. See Linde v. Commissioner of Pub. Safety , 586 N.W.2d 807, 810 (Minn.App. 1998), review denied (Minn. Feb. 18, 1999). It is from "the totality of the facts" that we determine whether a driver's right to counsel has been vindicated. Parsons , 488 N.W.2d at 502.
We reject Haarstad's claim that the deputy's dialing the number deprived him of his right to counsel. See Mulvaney v. Commissioner of Pub. Safety , 509 N.W.2d 179, 181 (Minn.App. 1993). An officer's dialing the telephone for a driver "does not, by itself, deny the driver's right to counsel." Linde , 586 N.W.2d at 810. Haarstad's action in hanging up the phone and his statement in explaining his actions indicate he had decided against exercising his right to counsel or that his stated intent to consult counsel was neither diligent nor sincere. See Eveslage v. Commissioner of Pub. Safety , 353 N.W.2d 623, 627 (Minn.App. 1984) (driver who requests specific attorney, is unsuccessful in contacting that attorney, and does not want to contact another attorney, has had right to counsel vindicated). The district court did not err in concluding that Haarstad's limited right to counsel was vindicated.