Shane Michael Elfering, 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This opinion will be unpublished and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 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A03-320

 

Shane Michael Elfering,

petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed November 25, 2003

Affirmed
Klaphake, Judge

 

Dakota County District Court

File No. C4-02-15702

 

R. Glenn Nord, 20686 Holyoke Avenue, P.O. Box 427, Lakeville, MN  55044 (for appellant)

 

Mike Hatch, Attorney General, Darren DeJong, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2134 (for respondent)

 

            Considered and decided by Klaphake, Presiding Judge, Willis, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N

KLAPHAKE, Judge

            Appellant Shane Michael Elfering challenges the district court decision sustaining the revocation of his driver's license, alleging that his right to counsel was not vindicated because he was not permitted to consult with his attorney a second time.  Because appellant successfully contacted his attorney, who advised him of his rights, thus vindicating his limited right to counsel, we affirm.

D E C I S I O N

            We review de novo the district court's decision on the vindication of a defendant's right to counsel.  McNaughton v. Comm'r. of Pub. Safety, 536 N.W.2d 912, 914 (Minn. App. 1995).  A driver deciding whether to submit to chemical testing has a limited right to consult with counsel before making that decision.  Id.  The right to counsel is limited "to the extent that it cannot reasonably delay administration of the test."  Id.  Delay in test administration raises concerns about dissipation of evidence and police efficiency.  Palme v. Comm'r. of Pub. Safety, 541 N.W.2d 340, 344 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996). 

            This limited right to counsel is vindicated if the driver is provided with a telephone and given a reasonable amount of time to contact and speak with an attorney.  State v. Slette, 585 N.W.2d 407, 409 (Minn. App. 1998).  It does not include a right to "make multiple calls to attorneys until [a defendant] receives information that he perceives to be helpful or satisfying."  McNaughton, 536 N.W.2d at 915. 

            Here, appellant spoke with his attorney for 12 minutes.  After terminating the call, appellant asked if he could call his father, whom he described as "almost like an attorney."  The officer allowed him to make this call, and appellant spoke with his father for several minutes.  After this second call, the officer told appellant that he had to make a decision on whether to submit to chemical testing.  The following dialogue ensued:

Officer:          What's your decision? Are you going to test or not?

[Appellant]:    I want to talk to my attorney.

Officer:          OK.  I ask you one more time.  Are you going to take the test or not?

[Appellant]:    I can talk to an attorney, right?

Officer:          You already talked to an attorney.  You've had 25 minutes to talk to your attorney. 

[Appellant]:    I want my attorney to speak on my behalf.

Officer:          That's not an option.  . . . Test or no test.

[Appellant]:    Why do I have to do that?

Officer:          Test or no test, Shane?

[Appellant]:    I will just answer if . . . I have rights.

Officer:          I'm assuming that's a no test. 

[Appellant]:    OK.

 

            While the officer filled out paperwork and explained the use of the seven-day temporary license, appellant continued to argue about the legality of his arrest.  He did not express any confusion about his testing decision.  Some 12 minutes later, appellant asked if he could take a chemical test, but the officer refused to permit it. 

            Appellant argues that this proves he was confused about his rights and needed an opportunity to talk a second time with his counsel.  But the source of his confusion appears to be his discussion with his father or his own inebriation.  It is clear from the record that appellant had sufficient opportunity to consult with an attorney.

            Appellant also asserts that because only 25 minutes had elapsed since he made his first call, the officer should have allowed him to call his attorney a second time.  Appellant cites Kuhn v. Comm'r. of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992), for the proposition that 24 minutes is not enough time to contact an attorney.  In Kuhn, however, the defendant was unable to contact any attorney.  Id. 

            Appellant further relies on Palme, 541 N.W.2d at 345, to argue that he should have been permitted to call his attorney a second time.  In Palme, the defendant was able to contact his attorney, who told him to wait for a criminal defense attorney to call him back.  Id. at 342.  The criminal defense attorney, however, did not contact the defendant until after he refused the test.  Id.  Despite the fact that the defendant never received advice from an attorney about his rights, this court sustained the revocation of his driver's license.  Id. at 345.  In dicta, this court stated that the defendant could have called the first attorney back or sought the advice of a second attorney.  Id.  Here, unlike Palme, appellant was fortunate enough to have contacted his attorney of choice immediately and received appropriate legal advice.

            We therefore conclude that the district court did not err in determining that appellant's right to counsel was vindicated when he successfully contacted and consulted an attorney of his choice.  The district court's order sustaining the revocation of appellant's driving privileges is affirmed.

            Affirmed.