Kenneth Jeffrey Pawelk, 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This opinion will be unpublished and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

A03-1830

 

 

Kenneth Jeffrey Pawelk, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

 

Filed August 17, 2004

Affirmed

Robert H. Schumacher, Judge

 

Wright County District Court

File No. C8032466

 

 

Eric L. Newmark, Michael K. Browne, Birrell & Newmark, Ltd., 510 First Avenue North, Suite 500, Minneapolis, MN 55403 (for appellant)

 

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

 

 

            Considered and decided by Schumacher, Presiding Judge; Halbrooks, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

ROBERT H. SCHUMACHER, Judge

            Respondent Commissioner of Public Safety revoked the driver's license of appellant Kenneth Jeffrey Pawelk's for refusing to submit to chemical testing under Minn. Stat. § 169 A. 52, subd. 3 (2002).  Pawelk appeals the district court's decision sustaining the license revocation, arguing the district court erred in concluding his right to counsel had been vindicated.

FACTS

            In the early morning hours of July 20, 2003, Pawelk reported that someone was stealing his vehicle from his residence.  Officer Kevin Weeks of the Buffalo Police Department responded to the call.  When Weeks neared Pawelk's home, he noticed that a vehicle was being driven erratically.  Weeks stopped the car and eventually arrested Pawelk's girlfriend for driving under the influence of alcohol. 

            While Weeks was speaking with Pawelk's girlfriend, Pawelk ran from his residence towards the vehicle and started yelling "arrest me, arrest me, she didn't drive, I did."  Weeks also testified that after he had Pawelk's girlfriend exit the vehicle, Pawelk yelled that he was going to drive and Weeks had better arrest him.  Pawelk then got into his truck.  Weeks arrested him for driving under the influence. 

Weeks and a deputy who had arrived at the scene to assist, transported Pawelk's girlfriend and Pawelk to the county jail.  Weeks testified that because he was the only licensed peace officer at the jail, he was responsible for providing both drivers with the implied-consent advisory.  He also testified that before any breath test can be administered the driver must be observed for 20 minutes.  Weeks was concerned about his need to process both drivers in a timely fashion and return to his patrol duties as quickly as possible. 

Because Weeks had observed Pawelk during the transport to the county jail, he decided to test Pawelk first.  Weeks gave Pawelk the implied-consent advisory, and Pawelk stated he wished to speak to an attorney.  Weeks provided Pawelk with access to a telephone and phone books and informed him that he would have 20 minutes to contact an attorney.  Weeks testified he had to limit Pawelk to 20 minutes because he would need to follow the same procedure with Pawelk's girlfriend within a reasonable period of time.

The district court found that Pawelk spoke with at least one attorney's office but did not speak with an attorneypresumably because the call was placed sometime between 5:24 a.m. and 5:47 a.m.  The district court also found that Pawelk spoke with at least one family member.  The record shows he spent approximately ten minutes talking to family members and most of the conversation was unrelated to obtaining counsel.  Additionally, Pawelk spent time arguing with Weeks about the appropriateness of his arrest.  Shortly after Pawelk finished speaking to a family member, Weeks informed him that 23 minutes had passed and requested that he submit to a breath test.  Pawelk refused to submit to testing because he had not spoken with an attorney. 

Based on Pawelk's refusal to submit to the breath test, the commissioner revoked Pawelk's driving privileges.  Pawelk appealed that decision to the district court, arguing his right to counsel had not been vindicated and his refusal was reasonable.  The district court concluded that Pawelk's right to counsel had been vindicated and his refusal to submit to testing was not reasonable.

D E C I S I O N

The determination of whether a driver's right to counsel was vindicated 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).  Establishing the historical events is a question of fact, but the significance of those facts is a question of law, which is reviewed de novo.  Parsons v. Comm'r of Pub. Safety, 488 N.W.2d 500, 501 (Minn. App. 1992).

A driver has a limited right to consult with an attorney before deciding whether to submit to chemical testing for alcohol concentration.  Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).  A driver's right is vindicated when the driver is provided with a telephone and given reasonable time to contact an attorney.  Id.  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.  Id.

Whether a person has been allowed a reasonable amount of time to contact an attorney must be determined by the totality of the circumstances.  Parsons, 488 N.W.2d at 502.  There is "no definite or exclusive set of factors" to determine whether a driver was provided a reasonable amount of time, but the "threshold question" is whether the driver has made "a good faith and sincere effort to reach an attorney."  Kuhn, 488 N.W.2d at 842. 

Pawelk argues that the district court's finding that he was not intentionally attempting to delay the test means he must have acted in good-faith and invoked a sincere effort to contact an attorney.  We disagree.  The district court's finding is a response to suggestions that Pawelk was attempting to obstruct the legal process and is not a finding that he diligently attempted to contact an attorney. 

The requirement that the driver make a good faith and sincere effort to contact an attorney means, regardless of the amount of time a driver is allowed, that he or she must diligently use the time provided to contact an attorney.  Id.  The record shows Pawelk used a significant amount of the 23 minutes he was provided on matters unrelated to contacting an attorney.  We conclude that Pawelk did not diligently use the time he was provided and thus his limited right to contact an attorney before being required to submit to testing under the implied consent laws was vindicated.

Pawelk also asserts that his right to counsel was not vindicated because Weeks invoked a per se rule that 20 minutes was a reasonable time.  Because we have concluded that under the circumstances of this case, 23 minutes was a reasonable amount of time for Pawelk to contact an attorney, we do not consider whether Weeks's possible future decision to limit a suspected drunk driver to 20 minutes before requiring him to submit to testing is a reasonable amount of time.  See State v. Murphy, 545 N.W.2d 909, 917 (Minn. 1996) ("Issues which have no existence other than in the realm of the future are purely hypothetical and are not justiciable." (quotation omitted)).  We do not disagree that "basing the 'reasonable' time criteria on a specific number of elapsed minutes alone is improper."  Kuhn, 488 N.W.2d at 842.  We do not find that proposition controlling in this case, and we caution law enforcement personnel about setting arbitrary, unilateral time limits.

Affirmed.  

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