State of Minnesota, Respondent, vs. Dennis Alfred Malone, Appellant.

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-97-1584

State of Minnesota,

Respondent,

vs.

Dennis Alfred Malone,

Appellant.

Filed April 21, 1998

Affirmed

Toussaint, Chief Judge

Cass County District Court

File No. K396379

Hubert H. Humphrey, III, Attorney General, Nancy Bode, Assistant Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101 (for respondent)

Earl E. Maus, Cass County Attorney, Courthouse, P.O. Box 3000, Walker, MN 56484 (for respondent)

Samuel A. McCloud, Kelly Vince Griffitts, Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (for appellant)

Considered and decided by Davies, Presiding Judge, Toussaint, Chief Judge, and Kalitowski, Judge.

U N P U B L I S H E D O P I N I O N

TOUSSAINT, Chief Judge

Appellant Dennis A. Malone appeals his conviction of driving under the influence of alcohol in violation of Minn. Stat. § 169.121, subd. 1 (a), 3 (c)(1) (1996). Because there is sufficient evidence in the record to support the district court's determination that Malone's limited right to counsel was vindicated, we affirm.

D E C I S I O N

The determination of whether an officer vindicated a driver's right to counsel is a mixed question of law and fact. Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). Once the facts are established, this court makes a legal determination as to whether the defendant was given a reasonable opportunity to consult with counsel based on the given facts. Id.

Before deciding whether to submit to chemical testing, a driver has a limited right to consult with an attorney. Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). A driver's right is considered vindicated "'if the person is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.'" Id. (quoting Prideaux v. State, Dept of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976)).

The determination of whether a driver has been given a reasonable time is not made based on the amount of time alone. Kuhn, 488 N.W.2d at 842. The driver is required to make a good faith effort to contact an attorney. Id. The officer is required to assist the driver in the vindication of this right to counsel. McNaughton v. Commissioner of Pub. Safety, 536 N.W.2d 912, 914 (Minn. App. 1995) (citation omitted). The assistance includes providing the driver with a telephone, telephone directory, and a reasonable time to contact an attorney. Id. at 915.

Malone argues that his right to counsel was not vindicated because he was not allowed to use the telephone personally. In Mulvaney v. Commissioner of Pub. Safety, 509 N.W.2d 179, 181-82 (Minn. App. 1993), this court held that "absent extraordinary circumstances, drivers must be permitted to personally use the phone when trying to obtain counsel." Id. at 181. However, Mulvaney does not stand for the proposition that the denial of a driver's right to use the telephone personally, standing alone, constitutes denial of the driver's right to counsel. In Mulvaney the driver looked up the attorney's number in the telephone directory and read it to the officer, who dialed the number and hung up the phone after letting the phone ring approximately twelve times. Mulvaney again asserted that he wanted that particular attorney. The officer responded that the attorney probably was not in his office at that hour and suggested that he try another attorney. Mulvaney did not try to contact another attorney and thereafter refused the test. This court concluded that Mulvaney's right to counsel was not vindicated because (1) the officer's failure to permit Mulvaney to use the phone personally rendered it impossible to ascertain whether Mulvaney made a good faith effort to contact the attorney; and (2) the officer phoned the attorney, refused Mulvaney's repeated request to call that attorney, and told Mulvaney to try another attorney: Mulvaney, 509 N.W.2d at 181-82. In reaching its decision, this court analyzed both the driver's and the officer's duty in vindicating the driver's right to counsel. Id.

Applying Mulvaney to the present case, we conclude that the fact that Malone was not permitted to use the phone personally, standing alone, does not conclusively show that his right to counsel was denied. After Malone requested to contact his attorney, the officer repeatedly asked him the name and number of the attorney. Despite the officers' repeated request, Malone remained silent and eight minutes after his initial request for an attorney Malone voluntarily gave up his right to counsel.

Malone also argues that the officer did not give him reasonable access to a telephone and telephone books. The district court found that there was a telephone, telephone books, and a list of attorneys in the booking room where Malone was held, and these items were visible and available to Malone. Because those findings are supported by the evidence, Malone's reliance on State v. Roll, No. C4-96-985 (Minn.App. Nov. 5, 1996) is misplaced. First, Roll is an unpublished opinion, and thus has no precedential value. See Dynamic Air Inc. v. Bloch, 502 N.W.2d 796, 800 (Minn. App. 1993) (unpublished opinions of this court are not precedential). In the present case, there was a telephone, telephone books, and a list of attorneys in the booking room and these items were visible and available to Malone.

Malone also relies on McNaughton v. Commissioner of Public Safety, 536 N.W.2d 912 (Minn. App. 1996). In that case, McNaughton was given a list of five pre-selected attorneys. He had no access to telephone books, and had no direct access to the telephone or directory assistance. Under these circumstances, this court concluded that McNaughton's limited right to counsel was not vindicated. Here, Malone had access to a telephone and telephone books, and he was not limited to the attorneys on the attorney list posted on the wall. Malone's reliance on McNaughton is misplaced.

Malone further argues that because he made the decision to take the test minutes after his request for an attorney, he was not given a reasonable amount of time to contact his attorney. "The amount of time alone" is not determinative as to whether a driver has been given a reasonable time to contact an attorney. Kuhn, 488 N.W.2d at 842. Malone was given time to contact his attorney. Instead of making a good faith effort to reach his attorney with the officer's assistance, he did not say or do anything. About eight minutes after requesting an attorney, he voluntarily gave up the right to counsel. Under the circumstances, we conclude the district court did not err in determining that Malone's right to counsel was vindicated.

Affirmed.