Ryan James Tobin, 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This opinion will be unpublished and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

A03-1705

 

Ryan James Tobin, petitioner,
Appellant,
 
vs.
 
Commissioner of Public Safety,
Respondent.

 

Filed August 3, 2004

Affirmed

Wright, Judge

 

Washington County District Court

File No. C8-03-4313

 

 

Mark D. Nyvold, 332 Minnesota Street, Suite W-1610, St. Paul, MN  55101 (for appellant)

 

Mike Hatch, Attorney General, Willow Najjar, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge; Wright, Judge; and Forsberg, Judge*.

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

Appellant challenges the district court's decision to sustain the revocation of his driver's license under the implied consent law.  Appellant contends that, because he was not given a reasonable amount of time to consult with an attorney, the district court erred in determining that his right to counsel was vindicated.  We affirm.

FACTS

 

Minnesota State Patrol Trooper David Kalinoff stopped appellant Ryan Tobin for speeding at approximately 1:20 a.m. on June 13, 2003.  During the stop, Kalinoff observed signs indicating that Tobin had been drinking.  Kalinoff administered field sobriety tests, which Tobin failed.  Kalinoff then administered a preliminary breath test (PBT) and subsequently placed Tobin under arrest. 

At the Washington County Jail, Kalinoff read Tobin the Minnesota Implied Consent Advisory.  Kalinoff advised Tobin that his time to consult with an attorney was limited and that, if he could not contact an attorney, Tobin would have to decide on his own whether to take a breath test.  Tobin requested an opportunity to consult with an attorney. 

At 1:59 a.m., Kalinoff provided Tobin access to a telephone and telephone directories.  Tobin then asked to go to the restroom.  Kalinoff allowed Tobin to use the restroom but reminded him that this was his time to consult with an attorney.  Tobin began placing calls to attorneys at 2:03.  Tobin placed five calls between 2:03 and 2:19.  For seven minutes, between the second and third calls, Tobin ceased his attempts and asked Kalinoff several questions.  At 2:20, Kalinoff warned Tobin that he had nine minutes remaining to consult with an attorney, after which he would have to decide whether to take the test. 

At 2:24, Tobin spoke with an attorney who directed Tobin to obtain the results of his PBT from Kalinoff.  Kalinoff declined to provide the information.  The attorney then asked Tobin to find out whether Tobin's alcohol-concentration reading on the PBT was more than .20.  Again, Kalinoff declined to disclose the PBT results.  The attorney refused to give Tobin advice without the PBT results.  Kalinoff advised Tobin when three minutes and one minute, respectively, remained to consult with an attorney.  After the one-minute warning, the attorney told Tobin, "I can't help you on this, in this time period."  The attorney then advised Tobin to request more time to consult with an attorney who would advise him without the PBT results.  Tobin relayed this message to Kalinoff but did not specifically request additional time.  After his consultation with the attorney ended, Tobin attempted without success to contact another attorney.  Kalinoff advised Tobin that his time was up and asked him to take a breath test.  Tobin consented to take the test, which registered an alcohol concentration of .12.[1] 

Tobin's driver's license was revoked under Minn. Stat. § 169 A. 52, subd. 4(a) (2002).  Tobin requested judicial review of the revocation order, arguing that his right to consult with counsel was not vindicated.  The district court sustained the license revocation, concluding that, under the totality of the circumstances, Tobin was given a reasonable amount of time to consult with an attorney, such that his limited right to counsel was vindicated.  This appeal followed. 

D E C I S I O N

 

Whether a driver's right to counsel was vindicated is a mixed question of law and fact.  See Kuhn v. Comm'r of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).  We review questions of law de novo.  Groe v. Comm'r of Pub. Safety, 615 N.W.2d 837, 841 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000).  When, as here, the facts are not in dispute, we consider whether, in light of the facts, a driver was afforded a reasonable opportunity to consult with counsel.  See id. 

A person arrested for driving while impaired has a limited right to consult with an attorney before deciding whether to submit to chemical testing, provided that the consultation does not unreasonably delay the testing.  Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991) (holding that the right to counsel is limited due to the "evanescent nature" of alcohol).  This limited right to counsel affords the driver the right to consult with an attorney of his or her choice.  Gergen v. Comm'r of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996).  If counsel cannot be contacted within a reasonable time, the driver is required to make a decision regarding testing without the benefit of counsel.  Groe, 615 N.W.2d at 841.

"There is no definitive rule on what constitutes a reasonable amount of time."  Gergen, 548 N.W.2d at 309.  When determining whether a driver has had a reasonable amount of time to consult with counsel, we consider the totality of the circumstances.  Palme v. Comm'r of Pub. Safety, 541 N.W.2d 340, 344 (Minn. App. 1995), review denied (Minn. Feb. 26, 1996).  In doing so, we weigh the officer's actions in vindicating the right to counsel against the driver's diligence in attempting to exercise the right to counsel.  Kuhn, 488 N.W.2d at 842. 

An officer must advise the driver of the right to counsel and assist in vindicating this right by providing a telephone and a reasonable amount of time to contact and speak with an attorney.  Gergen, 548 N.W.2d at 309.  An officer, however, need not ensure that the driver has received adequate counsel.  McNaughton v. Comm'r of Pub. Safety, 536 N.W.2d 912, 915 (Minn. App. 1995).  In turn, "the driver must make a good faith and sincere effort to reach an attorney."  Palme, 541 N.W.2d at 344 (quotations omitted).  We consider the time of day and the length of time the driver has been under arrest.  See Jones v. Comm'r of Pub. Safety,660 N.W.2d 472, 475 (Minn. App. 2003). 

Tobin argues that he made a sincere, good-faith effort to contact an attorney, as evinced by the seven calls he placed in the 32 minutes that he was given.  A driver makes a good-faith effort to contact an attorney when the driver spends the time allotted actively calling attorneys.  Davis v. Comm'r of Pub. Safety, 509 N.W.2d 380, 385-86 (Minn. App. 1993), aff'd, 517 N.W.2d 901 (Minn. 1994); Kuhn, 488 N.W.2d at 839; see also Umphlett v. Comm'r of Pub. Safety, 533 N.W.2d 636, 639 (Minn. App. 1995) (no good-faith effort found where driver paged through phone book for 15 minutes and made only two phone calls), review denied (Minn. Aug. 30, 1995). 

The record establishes that Kalinoff advised Tobin that his time to consult with an attorney would be limited.  At 1:59, Tobin was given access to a telephone and phone directories to assist him in contacting an attorney.  Prior to placing any calls, Tobin used the restroom.  Tobin then attempted to reach an attorney at 2:03, 2:06, 2:14, 2:16, 2:19, 2:21, and 2:29.  For seven minutes, from 2:06 to 2:13, he asked Kalinoff questions rather than looking through the phone directories or making calls.  Based on the facts as a whole, however, we conclude that Tobin made a good-faith effort to contact an attorney. 

Arguing that he needed more time to consult with an attorney because of the time of day, Tobin contends that, once the attorney he consulted declined to advise him without knowing the PBT results, Kalinoff should have given him more time.[2]  A driver should have more time to contact an attorney in the early morning hours when such contact is more difficult to make than during business hours.  Kuhn, 488 N.W.2d at 842.  But a driver is not entitled to unlimited time, nor is a driver entitled "to wait indefinitely for a call that may never come."  Palme, 541 N.W.2d at 345.  An officer may "reasonably determine that the driver has had enough time."  Id. 

Generally, when a driver receives access to a telephone and directories and a reasonable amount of time, in light of the circumstances, to contact an attorney, we have concluded that the right to counsel is vindicated.  See Gergen,548 N.W.2d at 310 (holding that the officer vindicated the driver's right to counsel when, for 36 minutes, the officer provided a telephone and telephone directories to the driver, offered to dial any phone number other than 800-numbers, which were blocked by the phone, and repeated parts of the implied consent advisory to the driver); Palme,541 N.W.2d at 341, 345 (holding that the right to counsel was vindicated when the officer provided the driver with access to a telephone and directories for 29 minutes before requiring him to decide whether to test); Parsons v. Comm'r of Pub. Safety, 488 N.W.2d 500, 502 (Minn. App. 1992) (holding that the right to counsel was vindicated when the officer explained that the time to consult with counsel was limited and the driver received access to a telephone and directories for 40 minutes), review denied (Minn. Feb. 26, 1996).  But when the officer's actions arbitrarily or unreasonably hinder the driver's attempts to contact an attorney, the right to counsel is not vindicated.  See Jones,660 N.W.2d at 476 (holding that the driver's right to counsel was not vindicated when a dispatcher falsely advised the attorney that the consultation time had expired); Duff v. Comm'r of Pub. Safety, 560 N.W.2d 735, 737-38 (Minn. App. 1997) (holding that the driver's right to counsel was not vindicated when the officer directed the driver to end the call with his attorney before the driver was able to obtain advice regarding additional testing); Kuhn, 488 N.W.2d at 842 (holding that the right to counsel was not vindicated when the officer required a driver to decide whether to test arbitrarily after 24 minutes while the driver was making a good-faith effort to contact an attorney). 

Here, the record establishes that Tobin received access to a telephone and directories and 32 minutes to contact an attorney.  Kalinoff warned Tobin at the outset that the available time would be limited and warned Tobin again when he had nine and three minutes remaining.  Kalinoff testified that he had three reasons for limiting the time to consult with counsel:  He needed to ensure that the Intoxilyzer test was successfully administered within two hours after Tobin's driving; he was concerned that Tobin's alcohol concentration would fall below .10 if more time elapsed; and, because his department was understaffed, he needed to return to his patrol for public safety. 

Tobin challenges the sufficiency of these reasons to establish that 32 minutes was a reasonable amount of time to vindicate the right to counsel.  We disagree.  An officer must be allowed to make a reasonable determination that a driver has had sufficient time to consult with counsel.  Palme, 541 N.W.2d at 345.  Implied consent laws are liberally interpreted in favor of the public's interests and against the private interests of drivers.  Parsons,488 N.W.2d at 502.  The risk to public safety created by a reduced number of officers on patrol is a legitimate public-interest consideration.  Id.  Because alcohol is evanescent, preventing the deterioration of evidence also is a reasonable concern.  Id.  Accordingly, we conclude that the amount of time afforded Tobin was reasonable under the circumstances and that Kalinoff's actions were not arbitrary.

Affirmed.

*  Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

 

[1]  Although Tobin was advised to ask for more time to contact another attorney, Tobin declined to do so and consented to take the breath test because he assumed that the time was not negotiable.

[2]  It is undisputed that Kalinoff was not required to provide him with the results of the PBT.  See Hartung v. Comm'r of Pub. Safety, 634 N.W.2d 735, 738 (Minn. App. 2001) (holding that police are not required to disclose a driver's PBT results), review denied (Minn. Dec. 11, 2001).