State of Minnesota, Respondent, vs. James Oscar Page, Jr., Appellant.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-99-1171

 

State of Minnesota,

Respondent,

 

vs.

 

David L. Miller,

Appellant.

 

Filed April 25, 2000

Affirmed

Randall, Judge

 

Ramsey County District Court

File No. K2-99-803

 

Clayton M. Robinson, Jr., St. Paul City Attorney, Patrick G. Leach, Assistant City Attorney, Rachel Gunderson, Assistant City Attorney, 15 West Kellogg Boulevard, Room 500, St. Paul, MN 55102 (for respondent)

 

Jeffrey S. Sheridan, Strandemo & Sheridan, P.A., 320 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, MN 55121 (for appellant)

 

            Considered and decided by Amundson, Presiding Judge, Randall, Judge, and Huspeni, Judge.*

 

U N P U B L I S H E D  O P I N I O N

RANDALL, Judge

            Appellant challenges his convictions for driving with an alcohol concentration of .20 or more and driving while under the influence of alcohol.  Appellant asserts that his right to counsel was not vindicated, claiming he was not given adequate time to contact counsel before the administration of an Intoxilyzer test.  We affirm.

FACTS

            Appellant David Miller was involved in an automobile accident on the evening of March 17, 1999.  Officer Paul Ford of the St. Paul Police Department was dispatched to the scene.  After observing Miller and administering a field sobriety test, Officer Ford determined that Miller had been driving while under the influence of alcohol and transported him to the St. Paul Police Department for a breath test.

            Upon arrival at the police department, Miller indicated that he wished to speak with an attorney.  Miller was provided with telephone books and access to a telephone; he used the telephone and telephone books to place a call.  After this call was completed, Officer Ford asked Miller whether he was ready to test and told Miller that refusal to test is a crime.  At that time Miller indicated that he had not yet reached an attorney.  Now the officer gave him a copy of the Blue Pages, which is a directory of attorneys.  After looking through the Blue Pages, Miller again used the telephone.  A few minutes later Miller hung up the telephone and looked at Officer Ford.  By this time approximately 15 minutes had passed since Miller was first given access to a telephone.  Officer Ford then asked again whether Miller was ready to test.  This time Miller did not indicate that he needed more time, and he agreed to take the test.  The Intoxilyzer indicated an alcohol concentration of .24.

            Miller was charged with driving with an alcohol concentration of .20 or more, driving while under the influence of alcohol, and possession of an open bottle.  He moved to suppress the results of his Intoxilyzer test, contending that his right to counsel had not been vindicated.  The district court denied his motion.  Miller was convicted of all charges after a bench trial on stipulated facts.  He was sentenced to one year in the Ramsey County Workhouse and ordered to pay a fine of $3,000.  He now challenges his convictions for driving with an alcohol concentration of .20 or more and driving while under the influence of alcohol, asserting that the district court erred in admitting the breath test.

D E C I S I O N

            A determination of whether a person has been allowed a reasonable amount of time to consult with an attorney before submitting to a breath test 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 have been established, their significance is a matter of law.  Id.  This court reviews legal questions de novo.  Frost-Benco Elec. Ass'n v. Minnesota Pub. Utils. Comm'n, 358 N.W.2d 639, 642 (Minn. 1984).

            DWI arrestees have a right to a reasonable opportunity to obtain legal advice before making their decision on whether to comply with the statutory requirement of implied consent testing.  Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).  This limited right of the DWI arrestee is vindicated if a telephone is made available to him prior to testing and he is given a reasonable amount of time within which to contact an attorney.  State v. Slette, 585 N.W.2d 407, 409 (Minn. App. 1998).

            There is no precise rule on exactly what constitutes a reasonable amount of time.  There is no bright line that says "this amount of time is never enough" and "this amount of time is always too much."  Instead, the relevant inquiry considers both the police officer's duties in vindicating the right to counsel and the defendant's exercise of that right.  Gergen v. Commissioner of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996).  "Thus, as a threshold matter the driver must make a good faith and sincere effort to reach an attorney."  Id. (quotation omitted).  What constitutes a reasonable amount of time cannot be determined solely by the specific number of minutes that the arrestee was allowed to use the phone.  Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).  Rather the determination must be made by looking at the "totality of the facts."  Davis v. Commissioner of Pub. Safety, 509 N.W.2d 380, 385 (Minn. App. 1993), aff'd, 517 N.W.2d 901 (1994).  This court has suggested that consideration be given to factors such as the time of day and difficulty of reaching an attorney at that time, the continued good faith efforts of the driver in contacting an attorney, and the amount of time that the driver has been under arrest.  Kuhn, 488 N.W.2d at 842. 

            In asserting that he was not given adequate time to contact an attorney, Miller relies on Kuhn, where this court held that 24 minutes was not an adequate amount of time given the circumstances.  Id.  This court in Kuhn  recognized that various factors are involved in the determination of whether an arrestee has been given adequate time to contact counsel, among those factors is the time of day.  Id.  In Kuhn, the arrestee was attempting to contact an attorney at approximately 2:00 a.m. on a Monday morning.  Id.  This court conceded that under those circumstances, attorneys "are not readily available."  Id. 

            Here, Miller made his telephone calls at approximately 8:15 p.m.  Although we recognize that calls made after business hours may make it more difficult to contact an attorney, we still consider the totality of the facts.[1]  See Davis, 509 W.W.2d at 385 (recognizing the court must look at totality of facts).

            This court previously considered a similar case in Eveslage v. Commissioner of Pub. Safety, 353 NW.2d 623 (Minn. App. 1984).[2]  When the arrestee in Eveslage was asked to consent to testing he indicated that he wished to speak with an attorney.  Id. at 624.  After he was given a telephone and telephone books, Eveslage attempted to contact an attorney but was unsuccessful.  Id.  He did not attempt to contact any other attorneys.  Id.  When asked again if he was ready to test Eveslage refused, and his license was revoked.  Id.  This court found that because the driver had been given the opportunity to contact counsel, his right had been vindicated, and the revocation was upheld.  Id. at 627.

            Like the arrestee in Eveslage, Miller was given the opportunity to contact an attorney.  He did attempt to do so.  Miller discontinued his use of the phone after making more than one phone call, but his inability to find an attorney was not the fault of anything the officer did.  Appellant's basic argument is that 15 minutes is just not enough time as a matter of law.  The record shows Miller did make use of the time he was given to contact an attorney.  When given the telephone he made multiple phone calls and made use of the phone books.  After 15 minutes Miller ceased using the telephone and looked at the officer.  When the officer asked if Miller was ready to take the breath test, Miller replied in the affirmative.  The officer never told Miller that his time with the telephone was limited.  He did not cut Miller off from using the phone.  At most, the officer was persistent in his efforts to communicate to Miller that refusal to test can be a crime.

            We note that appellant looks for a bright-line rule stating that 15 minutes, as a matter of law, is just not reasonable.  We specifically do not hold that a period of 15 minutes is always adequate.  But on this record, considering the totality of the facts, the officer's actions, and Miller's actions, we affirm the trial court's conclusion that Miller's right to counsel was vindicated.

            Affirmed.

* Retired Judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

 

[1] Respondent State of Minnesota argues that "of course" counsel was readily available on the eve of Blessed St. Patrick's Day.  Respondent contends that on the evening of St. Patrick's Day (the time of the arrest), criminal defense attorneys, in anticipation of additional alcohol-related arrests, had made loose arrangements to ban together to make themselves available on an on-call basis, kind of a "St. Paddy's Day strike force."  Respondent offered no support for this argument.  We kindly disregard it.

[2] Eveslage was based on the statutory right to counsel, which no longer exists.  Parsons, 488 N.W.2d at 502.  However, Minnesota recognizes a constitutional right to consult counsel prior to testing.  Friedman, 473 N.W.2d at 833.  Thus, the factual analysis used in Eveslage is applicable to this case.