State of Minnesota, Respondent, vs. Scott David Rech, Appellant.

State of Minnesota, Respondent, vs. Scott David Rech, Appellant. A04-988, Court of Appeals Unpublished, March 15, 2005.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-988

 

State of Minnesota,

Respondent,

 

vs.

 

Scott David Rech,

Appellant.

 

Filed March 15, 2005

Reversed
Klaphake, Judge

 

Hubbard County District Court

File No. K5-03-37

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134; and

 

Gregory D. Larson, Hubbard County Attorney, 301 Court Street, Park Rapids, MN  56470 (for respondent)

 

Charles L. Hawkins, Suite 2890, 333 South Seventh Street, Minneapolis, MN  55402 (for appellant)

 

            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Scott David Rech challenges his conviction for third-degree DWI, alleging that his right to consult counsel before submitting to chemical testing was not vindicated.

            Because appellant withdrew his decision not to call an attorney within a short period of time and because his decision did not unduly delay testing, the police officer's refusal to permit appellant to contact his attorney was unreasonable.  We therefore reverse appellant's conviction.

D E C I S I O N

            A DWI arrestee has a limited right to counsel before deciding whether to comply with chemical 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 time 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).  The question of whether a person's right to counsel has been vindicated is a mixed question of fact and law.   Id.

             Here, the implied consent advisory contains appellant's waiver of his right to counsel, but the implied consent transcript is incomplete.  According to the transcript, appellant initially decided not to call his attorney.  Appellant testified that after being told that he would not have the option of a Breathalyzer test, he changed his mind because he was uncertain about whether he should take a blood or a urine test; at that point he asked to speak to an attorney.  According to appellant's testimony, this occurred about two minutes after the police officer asked him to choose either a blood or urine test, but this exchange was not recorded.  The police officer testified that he did not remember appellant changing his mind, but that it was possible, and that making a telephone available to him at that point would not have unduly delayed testing. 

            In Slette, 585 N.W.2d at 409, as here, the arrestee originally waived his right to counsel, but then changed his mind after a few minutes.  This court stated that officers should honor the right of a DWI arrestee to withdraw an initial waiver of the right to consult with counsel "when the change of mind is immediate and does not interfere with police officers' processing of a case or their ability to administer [chemical testing]."  Id.; see also Parsons v. Comm'r of Pub. Safety, 488 N.W.2d 500, 503 (Minn. App. 1992) (encouraging, in dictum, officers "to be flexible and to disregard a refusal which is promptly withdrawn"); Schultz v. Comm'r of Pub. Safety, 447 N.W.2d 17, 19 (Minn. App. 1989) (holding defendant is not bound by initial refusal to test, when he immediately communicated change of mind and did not interfere with processing of case). 

            Here, the state offered no evidence to contradict appellant's testimony and no reasonable explanation for denying appellant's request.  We therefore conclude that the police officer failed to vindicate appellant's limited right to counsel and reverse appellant's conviction.  Because of our decision here, we need not consider appellant's alternative argument that the officer did not have a reasonable and particularized suspicion for making an investigative stop.

            Reversed.