Jody R. Brang, petitioner, Respondent, vs. Commissioner of Public Safety, Appellant.

may not be cited except as provided by

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

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-97-2163

Jody R. Brang, petitioner,

Respondent,

vs.

Commissioner of Public Safety,

Appellant.

Filed April 28, 1998

Reversed

Short, Judge

Winona County District Court

File No. C2970760

Hubert H. Humphrey, III, Attorney General, Joel A. Watne, Peter R. Marker, Assistant Attorneys General, 525 Park Street, Suite 200, St. Paul, MN 55101 (for appellant)

Howard K. Kruger, 301 West Broadway, Winona, MN 55987 (for respondent)

Considered and decided by Huspeni, Presiding Judge, Short, Judge, and Willis, Judge.

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

SHORT, Judge

The driving privileges of Jody R. Brang were revoked pursuant to Minn. Stat. § 169.123 (1996). Brang petitioned for review and the trial court rescinded the revocation. On appeal, the Commissioner of Public Safety (commissioner) argues the trial court erred in concluding Brang's limited right to counsel was not vindicated. We reverse.

D E C I S I O N

Whether a driver's right to counsel has been vindicated is a mixed question of law and fact. See Parsons v. Commissioner of Pub. Safety, 488 N.W.2d 500, 501 (Minn. App. 1992) (concluding question of whether driver was allowed reasonable time to consult with attorney is issue of both law and fact). Establishing the historical events presents a question of fact. Id.; see Minn. R. Civ. P. 52.01 (providing trial court's findings of fact must not be set aside unless clearly erroneous, giving due regard to court's opportunity to judge witness credibility). Once the facts are established, their significance becomes a question of law for de novo review. See Washington v. Milbank Ins. Co., 562 N.W.2d 801, 804 (Minn. 1997) (concluding when facts of case not in dispute, court determines whether lower court erred in application of law).

Pursuant to Minn. Const. art. I, § 6, a person arrested for driving while intoxicated has a limited right to counsel before deciding whether to submit to chemical testing, provided that consultation does not unreasonably delay the testing. Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991) (quoting Prideaux v. State, Dept. of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976)). A driver must be informed of this right, and a police officer must assist the driver in vindication of that right. Id.

The commissioner argues Brang's right to counsel was vindicated even though the police officer did not provide her with privacy during a telephone conversation with her attorney. See State, Dept. of Pub. Safety v. Held, 311 Minn. 74, 76, 246 N.W.2d 863, 864 (1976) (concluding police officer not required to permit driver arrested under Minn. Stat. § 169.121 to telephone attorney from private booth or room); see also Commissioner of Pub. Safety v. Campbell, 494 N.W.2d 268, 270 (Minn. 1992) (reaffirming its holding in Held); see, e.g., Delmore v. Commissioner of Pub. Safety, 499 N.W.2d 839, 840-41 (Minn. App. 1993) (concluding driver's right to counsel not violated because officer was present during driver's telephone conversation with attorney). The record demonstrates: (1) after being arrested, Brang was taken to the county jail, where she received the implied consent advisory; (2) Brang was given an opportunity to contact an attorney, and called one of her choosing; (3) Brang spoke with her attorney in an unsecured area; (4) officers remained present during Brang's telephone conversation; (5) Brang's attorney asked the police officer to permit Brang privacy during her telephone conversation, but the officer declined to leave the room; (6) after the request was denied, Brang again had an opportunity to speak with her attorney; (7) the police officer did not limit the amount of time Brang was able to consult with her attorney; and (8) after speaking with her attorney, Brang agreed to take a breath test. Given these facts, we conclude Brang's limited right to counsel was vindicated. See Prideaux, 310 Minn. at 421, 247 N.W.2d at 394 (concluding person's right to counsel is vindicated when police officer provides telephone and reasonable amount of time to contact and speak with an attorney). Police officers are not required to provide DWI arrestees with privacy in using telephones. Campbell, 494 N.W.2d at 269-70. Under these circumstances, the trial court erred in reinstating Brang's driving privileges.

Reversed.