Opinion
No. A04-1593.
Filed April 5, 2005.
Appeal from the District Court, Aitkin County, File No. C4-03-864.
Ethan P. Meaney, Gerald Miller Associates, P.A., (for appellant).
Mike Hatch, Attorney General, Joan M. Eichhorst, Assistant Attorney General, (for respondent).
Considered and decided by Kalitowski, Presiding Judge, Klaphake, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2004).
UNPUBLISHED OPINION
Appellant Tracey Ernest Wiberg challenges an order issued by the district court sustaining the revocation of his driver's license by respondent Commissioner of Public Safety. He argues that his right to counsel was not vindicated because he was not provided with telephone books while he was attempting to reach an attorney before deciding whether to submit to chemical testing. Because access to telephone books is one factor to consider in determining whether the limited right to counsel has been vindicated and because, under the totality of the circumstances here, appellant was not given a reasonable opportunity to consult with counsel of his own choosing, we reverse the district court's order sustaining the revocation of his driver's license.
DECISION
A DWI arrestee has a limited right to counsel before deciding whether to submit to testing. State v. Slette, 585 N.W.2d 407, 409 (Minn.App. 1998). This limited right is vindicated if the arrestee is provided with access to a telephone and is given a reasonable opportunity to contact and talk with an attorney. Id. Police officers are obliged to assist an arrestee in vindicating this right. Jones v. Comm'r of Pub. Safety, 660 N.W.2d 472, 475 (Minn.App. 2003). An arrestee has a corresponding obligation to make a "good faith and sincere effort to reach an attorney." Kuhn v. Comm'r of Pub. Safety, 488 N.W.2d 838, 842 (Minn.App. 1992), review denied (Minn. Oct. 20, 1992).
The district court here concluded that although access to telephone books is a factor in determining whether an arrestee's right to counsel is vindicated, it is not a prerequisite. See Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991) (citing Prideaux v. State, Dep't of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976) (stating that once telephone is made available and accused has reasonable amount of time within which to consult attorney, right is considered vindicated)). While access to telephone books may not be required in all cases, particularly when the arrestee already has an attorney's number, lack of access to a directory generally places a severe limit on an arrestee's ability to consult with an attorney of his or her own choosing. See McNaughton v. Comm'r of Pub. Safety, 536 N.W.2d 912, 915 (Minn.App. 1995). Other factors to consider when determining whether the right to counsel has been vindicated include whether the arrestee was given a reasonable amount of time to contact counsel, whether the arrestee was allowed to contact anyone he or she selected, the hour at which the arrestee attempted to contact counsel, and the length of time elapsed after arrest. See Kuhn, 488 N.W.2d at 842; Parsons v. Comm'r of Pub. Safety, 488 N.W.2d 500, 502 (Minn.App. 1992).
Here, when the "totality of the facts" is considered, we cannot conclude that appellant had a reasonable opportunity to consult with counsel. See Parsons, 488 N.W.2d at 502. The trooper initially told appellant that although he would be given an unlimited amount of time if he was making a good faith effort, he would only get six or seven minutes if he was not doing anything and just sitting there. The trooper gave appellant a telephone and allowed him to contact his girlfriend to obtain a phone number for an attorney. But the trooper failed to provide appellant with any telephone books and admitted that none were in sight. After appellant's four-minute conversation with his girlfriend ended unsuccessfully, the trooper, rather than asking appellant if he wished to make another call or if he could assist appellant, immediately asked appellant if he wanted to continue to attempt to contact an attorney. When appellant responded "probably not," the trooper asked him if he would take a breath test, to which appellant replied "yes." Only seven minutes elapsed between the reading of the implied consent advisory and the administration of the test. Considering the scant assistance provided by the trooper and the short amount of time involved, we cannot conclude that appellant was given a reasonable opportunity to consult with counsel. Nor can we conclude that appellant failed to make a good faith effort or that he otherwise waived his right to counsel.
We therefore reverse the district court's order sustaining the revocation of appellant's driver's license.
Reversed.
I respectfully dissent. The district court properly determined that under the totality of the circumstances, appellant's limited right to counsel was vindicated.
In reaching this conclusion, the district court noted that (1) appellant was told he would have as much time as he needed to contact an attorney if he was making a legitimate and good-faith effort; (2) appellant stated that he wanted to contact an attorney and asked if he could call his girlfriend to get an attorney's phone number; (3) appellant was provided a telephone and called his girlfriend; (4) after appellant finished speaking to his girlfriend the officer asked if appellant wished to continue to attempt to get an attorney and appellant responded, "Probably not"; (5) appellant gave no indication of any desire to continue efforts to get an attorney; and (6) appellant made no request for additional assistance.
The supreme court has stated that "[t]he right to counsel will be considered vindicated if the person is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel." Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991) (citations omitted). Because that is what occurred here, I would affirm the district court.