Opinion
No. C8-00-686
Filed January 30, 2001.
Appeal from Hennepin County District Court, File No. IC-477833
Caroline Durham, (for appellant)
Mike Hatch, Attorney General, Sheila M. Fitzgerald, Jeffrey F. Lebowski, Assistant Attorneys General, (for respondent)
Considered and decided by Stoneburner, Presiding Judge, Lansing, Judge, and Peterson, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Stephanie Zimmer appeals from a district court order sustaining the one-year revocation of her driving privileges under the implied-consent law. Zimmer contends that she was denied her limited right to counsel when she initially waived that right but later attempted to withdraw her waiver. Because Zimmer was accorded a reasonable right to consult with counsel, we affirm.
FACTS.
Stephanie Zimmer was arrested for driving while under the influence of alcohol (DWI) and transported to the Mound Police Department for alcohol testing. Orono Police Officer Correy Farniok finished reading the implied-consent advisory to Zimmer at 11:33 p.m. Zimmer answered "yes" to Farniok's questions asking if she understood the implied- consent advisory and if she wished to consent to testing. In response to his question on whether she wished to consult with counsel before taking the Intoxilyzer test, Zimmer initially stated "yes," but three to five seconds later, Zimmer changed her answer to "no," saying that she did not wish to consult with an attorney before taking the test.
After checking Zimmer's mouth for substances that might interfere with the test and waiting 15 minutes, as prescribed by the testing procedures, Farniok administered the test. Farniok testified that although he explained how to blow into the instrument and told Zimmer that she had to blow for a certain length of time, Zimmer would begin to blow, then look at the display on the Intoxilyzer and stop blowing shortly after beginning. Although Zimmer attempted to blow into the machine 23 times, the Intoxilyzer repeatedly registered a deficient sample.
Farniok told Zimmer that the test would be considered a refusal but that she could take the test a second time. Zimmer agreed to give the second test a good-faith effort. But because Farniok believed that Zimmer would stop blowing when the instrument displayed a reading, he slid a piece of paper over the Intoxilyzer's numeral display before Zimmer blew into the instrument so that Zimmer was unable to read the display. Zimmer argued that she had a "right" to see the display, and Farniok stopped the test, telling Zimmer that this second attempt also would be treated as a refusal. Zimmer stated that she wished to call an attorney and indicated the name of a Minneapolis attorney. Farniok did not know that the person named was an attorney. Farniok did not allow Zimmer to call an attorney.
The Commissioner of Public Safety revoked Zimmer's driver's license for one year under Minn. Stat. § 169.123, subd. 4(c) (1998) (repealed 2000 and recodified at Minn. Stat. § 169A.52, subd. 3(a) (2000)). Zimmer sought judicial review, and after an implied-consent hearing, the district court sustained the revocation of Zimmer's driver's license.
DECISION
On undisputed facts, whether a person was accorded a reasonable opportunity to consult with counsel is a legal determination subject to de novo review. Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 840 (Minn.App. 1992) , review denied (Minn. Oct. 20, 1992). The facts in this case are undisputed.
Minnesota's Constitution gives persons accused of driving while under the influence of alcohol a limited right to counsel before deciding whether to submit to chemical testing. Minn. Const. art. 1, § 6; Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). That right is vindicated if the police provide the person with a telephone prior to testing and allow the person a reasonable time to contact and talk with counsel. Id. A police officer must assist in the vindication of the right to counsel. Id. But because of alcohol's evanescent nature, that right is "limited to the extent that it cannot unreasonably delay administration of the test." Minn. Stat. § 169.123, subd. 2(b)(4) (1998) (repealed 2000 and recodified at Minn. Stat. § 169A.51, subd. 2(4) (2000)); Friedman, 473 N.W.2d at 835.
Zimmer does not dispute that she refused testing. Instead, she argues that her right to counsel was violated because the police officer did not allow her to contact an attorney when she changed her mind and attempted to withdraw her waiver of counsel during her second test.
When a person arrested for DWI initially waives counsel but then changes his or her mind, police officers must recognize the waiver withdrawal if it is made immediately and does not interfere with the processing of the case or the Intoxilyzer test administration. State v. Slette, 585 N.W.2d 407, 409 (Minn.App. 1998); see also Schultz v. Commissioner of Pub. Safety, 447 N.W.2d 17, 19 (Minn.App. 1989) (finding that when accused initially refused the test and then changed his mind almost instantaneously and before the officer had completed case processing, breath test should have been administered). In the circumstance of an immediate waiver withdrawal that does not interfere with police work, police are required to either provide a telephone and a reasonable opportunity to consult with an attorney or to clarify the request for counsel. Id.
In Slette, the driver changed his mind and asked for counsel only a few minutes after waiving the right to counsel and before testing began. Unlike Slette, Zimmer waited to withdraw her waiver until approximately 23 minutes after Farniok read the implied-consent advisory to her and after she had refused testing. Imposing time limitations on a withdrawal of a waiver helps to preserve the validity of the testing process and respects the orderly conduct of police business that allows attention to duties other than alcohol testing. See Parsons v. Commissioner of Pub. Safety, 488 N.W.2d 500, 502 (Minn.App. 1992) (listing factors to consider when determining what constitutes a reasonable time period for an accused to consult with counsel).
The facts in this case demonstrate that Zimmer's late withdrawal of her waiver would have interfered with the officer's case processing and test administration. Zimmer had repeatedly attempted to thwart the test and had shown by her actions that she was not making a good-faith attempt to comply with the testing procedures. Under these circumstances, had she wished to change her mind, the officer was not required to provide another test. Parsons, 488 N.W.2d at 502-03. The district court did not err in concluding that Zimmer's limited right to counsel was vindicated.