Bradley Sterling Groehler, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent (A03-765), and State of Minnesota, Respondent (A03-792), vs. Bradley Sterling Groehler, Appellant.

This opinion will be unpublished and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

A03-765

A03-792

 

Bradley Sterling Groehler, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent (A03-765),

 

and

 

State of Minnesota,

Respondent (A03-792),

 

vs.

 

Bradley Sterling Groehler,

Appellant.

 

Filed April 27, 2004

Affirmed

Kalitowski, Judge

 

Washington County District Court

File Nos. C8-02-004642, K6-02-5434

 

David DeSmidt, 3001 Hennepin Avenue South, Suite 309B, Minneapolis, MN 55408 (for appellant)

 

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

 

Susan Danner Olson, Eckberg, Lammers, Briggs, Wolff & Vierling, P.L.L.P., 1835 Northwestern Avenue, Stillwater, MN 55082 (for respondents)

 

            Considered and decided by Shumaker, Presiding Judge; Kalitowski, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

            Appellant Bradley Groehler challenges both the implied consent order revoking his driver's license and his criminal conviction of fourth-degree refusal to submit to chemical testing claiming the police officer (1) unlawfully stopped his vehicle; (2) did not have sufficient probable cause to arrest him for driving while impaired; and (3) failed to vindicate his right to counsel.  We affirm.

D E C I S I O N

I.

            This court reviews whether an investigatory stop or seizure is lawful as a mixed question of law and fact.  Berge v. Comm'r of Pub. Safety, 374 N.W.2d 730, 732-33 (Minn. 1985).  When the facts are not in dispute, an appellate court should analyze the officer's testimony and "determine whether, as a matter of law, his observations provided an adequate basis for the stop."  State v. Waddell, 655 N.W.2d 803, 809 (Minn. 2003).

            A police officer may lawfully make a limited investigatory stop of an individual if the officer is "able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion."  State v. Holmes, 569 N.W.2d 181, 184 (Minn. 1997) (quoting Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968)). 

            Here, the officer followed and stopped appellant's vehicle as part of his investigation of a reported physical altercation outside a SuperAmerica store.  The officer testified that as he arrived at the store, he saw appellant's vehicle leaving the parking lot.  He radioed the license plate to dispatch and was told that the vehicle was believed to have had a role in the reported fight.  Minutes later, he pursued and stopped the vehicle to determine whether the occupants had been involved.  We conclude that the officer was well within the law to stop a vehicle he reasonably believed had been involved in unlawful activity moments before.  See Appelgate v. Comm'r of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987) (finding that the officer lawfully stopped a car leaving an apartment complex where a burglary had recently been reported); State v. Walker, 304 Minn. 590, 232 N.W.2d 212 (1975) (upholding the stop of a car containing two black men in the vicinity of a motel that had just been robbed, after a report indicated that two black men had fled the scene). 

II.

            To arrest an individual for driving under the influence of alcohol, an officer must have probable cause to believe that the person was driving, operating, or in physical control of a motor vehicle, and that the person was impaired by alcohol.  Minn. Stat. § 169 A. 20, subd. 1 (2000).  A reviewing court must examine the totality of the circumstances when determining whether probable cause existed.  Eggersgluss v. Comm'r of Pub. Safety, 393 N.W.2d 183, 185 (Minn. 1986).  Probable cause is assessed from "the point of view of the officer, giving deference to the officer's experience and judgment."  Delong v. Comm'r of Pub. Safety, 386 N.W.2d 296, 298 (Minn. App. 1986), review denied (Minn. June 13, 1986).

            Here, during his conversation with appellant, the officer noticed that (1) appellant's eyes were watery, glassy, and bloodshot; (2) appellant slurred his words; and (3) the odor of alcohol emanated from the passenger compartment of the vehicle.   Based on these observations, the officer believed that appellant may be driving under the influence of alcohol, and requested that appellant perform a preliminary breath test (PBT), which appellant refused.  See State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986) (officer need only possess "articulable facts" to request a PBT), review denied (Minn. May 16, 1986).  After refusing the PBT, appellant became argumentative and uncooperative with the officer.  Viewing the totality of the circumstances, we conclude that the officer's physical observations of appellant, and appellant's increasingly argumentative attitude toward the officer, gave the officer sufficient probable cause to believe that appellant had been driving under the influence of alcohol and to arrest him. 

III.

            The determination of whether an officer vindicated a driver's right to counsel is a mixed question of law and fact.  Kuhn v. Comm'r of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).  An individual has a limited right, upon request, to obtain legal advice before deciding whether to submit to a chemical test, provided that the consultation does not unreasonably delay administration of the test.  Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). 

            As a general rule, the right to counsel is vindicated if the driver is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.  Linde v. Comm'r of Pub. Safety, 586 N.W.2d 807, 809 (Minn. App. 1998) (quotation omitted).  But, if counsel cannot be contacted within a reasonable time, the person may be required to make a decision regarding testing in the absence of counsel.  Friedman, 473 N.W.2d at 835 (quotation omitted). 

            Upon arrival at the police station, the officer read appellant the implied consent advisory and informed him that he had the right to some time to consult with counsel.  The officer provided appellant with a telephone, phone books, and the after-hours callback number for the police station.  Appellant made six phone calls over the course of 28 minutes and the officer allowed him to wait 10 minutes for a possible callback.  The officer then asked appellant to submit to testing, which appellant refused to do before consulting an attorney.  After several more minutes, the officer reread a portion of the advisory and informed appellant that if he did not submit to testing, his response would be recorded as a refusal.  The refusal was recorded approximately 41 minutes after appellant was given access to a telephone.  We conclude that 41 minutes is a reasonable amount of time where appellant was allowed to make several unhindered attempts to contact an attorney.  Thus, on these facts, the officer did not violate appellant's limited right to counsel.

            Finally, although appellant alleged that the phone rang and went unanswered during the time he attempted to call an attorney, the officer testified that the phone did not ring and no calls were received.  And this court must assume that the district court believed the testimony of the officer over that of appellant.  State v. Vick, 632 N.W.2d 676, 690 (Minn. 2001). 

            Affirmed.