Charles Allen Davisson, Appellant, vs. Virgil Engelke, Respondent.

This opinion will be unpublished and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,
Respondent,

vs.

Anthony Lane Downs,
Appellant.

Stearns County District Court
No. T5-98-2883

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and

Roger Van Heel, Stearns County Attorney, Mary A. Yunker, Assistant County Attorney, 448 Administration Center, 705 Courthouse Square, St. Cloud, MN 56303 (for respondent)

Michael L. Samuelson, 925 South First Street, P.O. Box 1735, St. Cloud, MN 56302 (for appellant)

Considered and decided by Amundson, Presiding Judge, Lansing, Judge, and Peterson, Judge.

Appellant challenges his DWI conviction, arguing that he was not given enough time to contact an attorney. Additionally, appellant argues that his constitutional due process rights were violated because he was not offered an alternative test and because his breath sample was not preserved for possible future testing. We affirm.

Deputy Sheriff John Lentz observed respondent Anthony Downs's failure to come to a complete stop at a stop sign. Officer Lentz stopped Downs at a parking lot and administered several field sobriety tests. Downs failed the majority of the tests and was arrested for driving under the influence of alcohol at approximately 1:29 a.m., and was transported to the county law enforcement center, where he was read the implied consent advisory. Downs requested an attorney. At approximately 2:11 a.m., Downs was given a phone book and began making efforts to contact an attorney. At approximately 2:45 a.m., Downs was told he would have to decide whether to take the test. At 2:54 a.m., Downs submitted to the test, which yielded an alcohol concentration of .12.

Downs brought a motion to suppress his breath test results on the grounds that he was not given enough time to contact an attorney, that his breath sample was not preserved for subsequent testing, that he was not given a choice of which chemical test to take, and that he was not advised of his right to an independent test. The district court denied the motion to suppress evidence and the case was brought to trial where Downs stipulated to the facts to expedite appeal. The district court found Downs guilty of driving under the influence and this appeal followed.

The question of whether a driver has been afforded a reasonable amount of time to contact 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 importance is a question of law, which this court reviews de novo. Id.; Kuhn v. Commissioner of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992). Downs does not contest the facts of the case, only the district court's conclusions of law, therefore, this case is subject to de novo review.

A driver has a limited right to counsel before deciding whether to submit to chemical testing. Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). That right is vindicated when the driver is provided a telephone and given reasonable time to contact and speak with an attorney of his own choosing. Gergen v. Commissioner of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996). The determination of a "reasonable time" may not be decided solely based on the time elapsed, but rather must be decided based on the totality of the facts. Parsons, 488 N.W.2d at 502. Relevant factors include: (1) whether the driver made a good faith and sincere effort to contact an attorney; (2) what time of day the driver attempted to contact an attorney; and (3) how long the driver was under arrest. Kuhn, 488 N.W.2d at 842.

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. In this case, Downs was attempting to contact an attorney in the early morning hours between 2:00 and 3:00 a.m. He made 25 to 30 calls during the 34 minutes he was given to attempt to contact an attorney and he had been under arrest for almost an hour and a half. Downs's primary complaint is that the 34 minutes he was given to contact an attorney was not sufficient.

In Parsons, this court decided that the driver's right to counsel had been vindicated upon the following facts:

(a) Parsons was provided a telephone and telephone directories; (b) she was free to call anyone she wanted; (c) she had access to the telephone for approximately 40 minutes; (d) she telephoned a non-lawyer friend and spent about 13 minutes talking to him; and (e) she understood that her time to consult with counsel was limited.

Parsons, 488 N.W.2d at 502. Conversely, in Kuhn, this court affirmed the district court's rescission of the driver's revocation, holding that 24 minutes was not enough time to contact an attorney in light of the early morning hour and the driver's diligent efforts. Kuhn, 488 N.W.2d at 842. In that case, the driver had attempted to contact an attorney only three times, and no evidence indicated that the driver was stalling or had decided on his own to discontinue his efforts to reach an attorney. Id. at 839.

While Downs's situation is similar to Kuhn, time is not the only factor. Even though it was early in the morning, Downs had 34 minutes to contact an attorney, and he made between 25 to 30 calls. Therefore, Downs's right to counsel was vindicated.

Reviewing courts draw a distinction between an officer's failing to assist and an officer's hampering an attempt to obtain an additional test to determine whether the officer has prevented or denied a test. Haveri v. Commissioner of Pub. Safety, 552 N.W.2d 762, 765 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996). An arresting officer has no duty to inform a driver of the right to an independent test. Ruffenach v. Commissioner of Pub. Safety, 528 N.W.2d 254 (Minn. App. 1995). Further, the officer need not furnish supplies or transportation to facilitate an additional test. State v. Hatlestad, 347 N.W.2d 843, 845 (Minn. App. 1984).

A person has the right to chemical testing in addition to that performed by a police officer, provided the additional test is obtained where the person is in custody, after the test administered at the direction of a peace officer, and at no expense to the state. Minn. Stat. § 169.123, subd. 3(a) (1998). The failure or inability to obtain an additional test

shall not preclude the admission in evidence of the test taken at the direction of a peace officer unless the additional test was prevented or denied by the peace officer.

Minn. Stat. § 169.123, subd. 3(b) (emphasis added). Appellant argues the district court erred by finding him guilty of driving under the influence because the police did not offer him an additional chemical test or give him a choice between chemical tests.

Although an officer must allow a sample to be collected and an additional test to be administered, he or she "need not act affirmatively to facilitate the test." Haveri, 552 N.W.2d at 765. Because Downs did not assert his right to the additional testing, his rights were not violated. DeBoer v. Commissioner of Pub. Safety, 406 N.W.2d 43, 46 (Minn. App. 1987).

It is the obligation of the person arrested to make clear the intent to have a second test administered. It is the duty of attorneys, not police officers, "to explain the extent and scope of the right to an additional test while the driver is in custody." Davis v. Commissioner of Pub. Safety, 509 N.W.2d 380, 387 (Minn. App. 1993), aff'd, 517 N.W.2d 901 (Minn. 1994). Because Downs never requested an additional test his due process rights were not violated.

Finally, Downs's argument that by not saving his breath sample, the state destroyed possibly exculpatory evidence holds little weight. A breathalyzer test reading conducted by a certified operator may be admitted into evidence if it is established that the machine was in proper working order and the chemicals in proper condition. City of St. Louis Park v. Quinn, 289 Minn. 184, 188, 182 N.W.2d 843, 845 (1971). The B. C. A. has set out a 21-step procedure to insure the accuracy of a breathalyzer test. Significantly, a reading of room air is taken which should give a reading of zero and a reading from a control solution of a known concentration provided by the Bureau of Criminal Apprehension, which should give a reading between .10% and .12%. If the two tests give the expected results, "[t]his would seem to be almost incontrovertible proof not only that the chemicals are proper but that the instrument is in working order." State, Dep't of Pub. Safety v. Habisch, 313 N.W.2d 13, 16 (Minn. 1981) (quotations omitted).

Downs has made no showing that there was any exculpatory value in saving his breath test. Downs's failure to provide any exculpatory value is fatal to his argument. See Bielejeski v. Commissioner of Pub. Safety, 351 N.W.2d 664, 667 (Minn. App. 1984) (no showing by defendant that there was any apparent exculpatory value in saving breath test and other options were available to obtain comparable evidence).

Because we agree with the district court that Downs was provided enough time to contact an attorney, that he did not request an additional test, and that he has not demonstrated any exculpatory value in saving his breath sample, we affirm the district court's driving under the influence conviction.