Joshua Samuel Saltzman, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2000).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-00-964

Joshua Samuel Saltzman, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed December 19, 2000

Affirmed

Kalitowski, Judge

Hennepin County District Court

File No. IC478520

Steven J. Meshbesher, Rory Patrick Durkin, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)

Mike Hatch, Attorney General, Joel A. Watne, Assistant Attorney General, 500 Capitol Office Building, 525 Park Street, St. Paul, MN 55103-2106 (for respondent)

            Considered and decided by Toussaint, Chief Judge, Kalitowski, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant challenges the district court's order sustaining the revocation of his driver's license, claiming (1) the district court's finding that he was hiding from police was clearly erroneous because it was not a reasonable inference from the record, and (2) he was not afforded sufficient time to vindicate his right to counsel.  We affirm.

            Appellant first contends the district court erred in finding that after he was involved in a one-car accident appellant was hiding from police.  We disagree.  "The trial court's factual findings are subject to a clearly erroneous standard of review * * * ."  State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996).  District courts may make reasonable inferences from the facts.  New Horizon Enter., Inc. v. Contemporary Closet Design, Inc., 570 N.W.2d 12, 16 (Minn. App. 1997).  Here, the district court found that appellant was hiding from police observation.  The record indicates that appellant left the scene of a one-car accident, and after an extensive police search, was found some distance from the accident curled up under a second-floor deck facing away from the street.  We conclude the reasonable inferences from this record support the district court's finding.

II.

Appellant next argues that the district court erred in finding that his limited right to counsel was vindicated.  We disagree.  The determination of whether an officer vindicated an individual's right to consult with an attorney is a mixed question of law and fact.  Parsons v. Commissioner of Pub. Safety, 488 N.W.2d 500, 501 (Minn. App. 1992).  Once the facts are established, their significance becomes a question of law for de novo review.  Gergen v. Commissioner of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996). 

An individual has a limited right to obtain legal advice before deciding whether to submit to chemical testing, provided the consultation does not unreasonably delay administration of the test.  Minn. Stat. § 169.123, subd. 2(b)(4) (1998); Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).  A driver must be informed of this right, and a police officer must assist in its vindication.  Friedman, 473 N.W.2d at 835.  That right is vindicated if the driver "is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel." McNaughton v. Commissioner of Pub. Safety, 536 N.W.2d 912, 915 (Minn. App. 1995) (quotation omitted). 

            The determination of a "reasonable time" may not be decided solely based on the time elapsed, but rather must be decided on the totality of the facts.  Parsons, 488 N.W.2d at 502.  If counsel cannot be contacted within a reasonable time, the driver must make a decision regarding testing in the absence of counsel.  Friedman, 473 N.W.2d at 835.

Here, the record shows:  (1) appellant was involved in a car accident at approximately 1:00 a.m.; (2) appellant hid from police observation and was not found and brought to the hospital until after 3:00 a.m.; (3) at the hospital, appellant was read the implied consent advisory and was provided a phone; (4) appellant left a message with his attorney's paging service; (5) appellant was x-rayed; (6) the officer asked appellant to make a decision on testing over three and a half hours after the accident occurred and 21 minutes after appellant made a phone call to an attorney; (7) at the time of testing, neither appellant nor the officer had any information as to whether appellant had received a call back from his attorney; and (8) appellant did not ask for additional time and did not ask to make additional calls.  Under the facts of this case, we conclude appellant's limited pretesting right to counsel was vindicated.  See Linde v. Commissioner of Pub. Safety, 586 N.W.2d 807, 810 (Minn. App. 1998) (holding that driver who requests specific attorney, is unsuccessful in contacting that attorney, and makes no attempt to contact another attorney, has had right to counsel vindicated), review denied (Minn. Feb. 18, 1999); Friedman, 473 N.W.2d at 835 (holding that the evanescent nature of alcohol limits the right to contact counsel); Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992) (stating that a driver shows bad faith by using tactics to delay administration of the test), review denied (Minn. Oct. 20, 1992).  Appellant's limited right to counsel was not violated merely because he was unable to speak with his attorney before he submitted to testing. 

             Affirmed.