State of Minnesota, Respondent, vs. Timothy John Berg, Appellant.

State of Minnesota, Respondent, vs. Timothy John Berg, Appellant. A06-643, Court of Appeals Unpublished, March 27, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-643

 

State of Minnesota,

Respondent,

 

vs.

 

Timothy John Berg,

Appellant.

 

Filed March 27, 2007

Affirmed

Shumaker, Judge

 

Otter Tail County District Court

File No. K5-04-2354

 

 

Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101; and

 

David J. Hauser, Otter Tail County Attorney, Ryan C. Cheshire, Assistant County Attorney, 121 West Junius, Suite 320, Fergus Falls, MN 56537 (for respondent)

 

Rich Kenly, Kenly Law Office, P.O. Box 31, Backus, MN 56435 (for appellant)

 

            Considered and decided by Shumaker, Presiding Judge; Klaphake, Judge; and Collins, Judge.*

 

U N P U B L I S H E D   O P I N I O N

SHUMAKER, Judge

            Appellant challenges his conviction of second-degree driving while impaired (DWI), arguing that the district court erred by admitting allegedly unlawfully obtained blood-test evidence.  Appellant contends that a sheriff's deputy violated his limited right to counsel by not clarifying whether appellant wished to consult an attorney before deciding whether or not to submit to blood-alcohol testing.  Because appellant's statement was not an equivocal or ambiguous request to consult an attorney, the deputy did not have a duty to clarify, and we affirm.

FACTS

            Appellant Timothy Berg was involved in a single-car accident in Otter Tail County.  An ambulance took Berg to the hospital for treatment.  A deputy sheriff arrived at the hospital to investigate the accident and smelled an odor of alcohol on Berg.

            The deputy read to Berg the implied-consent advisory but was interrupted by medical personnel.  The deputy read the advisory to Berg again when the treatment ended.  Berg stated that he understood his right to consult an attorney.  But when the deputy asked if Berg wished to consult an attorney, he answered, "I'm under pain medication and stuff and I don't think I'm really at a point toI'm not denying anything but I don't think it's right that I should say anything."  The deputy then asked if Berg would submit to a blood test, and Berg consented.

            Berg's test result showed a blood-alcohol concentration over the legal limit, and he was charged with second-degree DWI.  Berg filed a motion to suppress the blood-test evidence, arguing that the deputy failed to vindicate his limited right to counsel before he took the test.  The district court denied Berg's motion.

            Berg submitted the matter to the district court on stipulated facts under the procedure in State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980).  The district court convicted Berg of second-degree DWI, and this appeal followed.

D E C I S I O N

            Berg argues that the district court erred by admitting the blood-test evidence because the deputy failed to vindicate his right to counsel.

            Drivers have a limited right to counsel before deciding whether to submit to chemical testing.  Minn. Const. art. I, § 6; Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).  The driver "must be informed of the right to consult with an attorney and the police officers must assist in the vindication of that right."  State v. Fortman, 493 N.W.2d 599, 601 (Minn. App. 1992).  The court considers "the totality of the facts" in determining if a driver's right to counsel has been violated.  Parsons v. Comm'r of Pub. Safety, 488 N.W.2d 500, 502 (Minn. App. 1992).  On undisputed facts, this court considers de novo whether a defendant's right to counsel was violated.  State v. Christianson, 515 N.W.2d 110, 112 (Minn. App. 1994), review denied (Minn. June 15, 1994). 

            Berg contends that his response, "I'm under pain medication and stuff and I don't think I'm really at a point toI'm not denying anything but I don't think it's right that I should say anything," shows that he was confused, and his confusion required the deputy to clarify whether or not Berg wanted to consult an attorney.  Berg argues that the deputy's failure to clarify his desire amounts to a violation of his limited right to counsel warranting reversal of his conviction.

            Chemical testing in DWI procedures is not considered an interrogation and thus does not trigger the Fifth-Amendment privilege against compelled self-incrimination.  South Dakota v. Neville,459 U.S. 553, 564, n.15, 103 S. Ct. 916, 923 n.15 (1983); State v. Slette, 585 N.W.2d 407, 410 (Minn. App. 1998).  Nevertheless, after a driver expresses interest in consulting an attorney after hearing the implied-consent advisory, an "officer[] [is] required either to vindicate the underlying [statutory] right by providing a telephone and a reasonable opportunity to consult with an attorney or clarify [the] request."  Slette, 585 N.W.2d at 410.  An officer's duty to clarify arises only after the driver makes an equivocal or ambiguous request to consult an attorney.  Id.;  see State v. Robinson, 427 N.W.2d 217, 223 (Minn. 1988) (stating that "when a suspect indicates by an equivocal or ambiguous statement, which is subject to a construction that the accused is requesting counsel, all further questioning must stop except that narrow questions designed to ‘clarify' the accused's true desires respecting counsel may continue").

            Here, Berg stated unequivocally that he understood his right to counsel, yet when asked whether he wished to consult an attorney he did not provide a "yes" or "no" answer.  Instead, Berg responded that he was on medication and stated "I don't think it's right that I should say anything."  We conclude that Berg's response cannot reasonably be construed as an equivocal or ambiguous request for counsel that triggers an officer's duty to clarify.  See State v. Von Bank, 341 N.W.2d 894, 896 (Minn. App. 1984) (holding that the driver's response "[I] don't know" when asked if she wanted to consult an attorney was not a request to consult an attorney).  Therefore, because Berg understood his right to counsel and did not request an attorney, ambiguously or otherwise, the deputy did not have an obligation to clarify Berg's response.  We do not read the caselaw to require a law-enforcement officer to extract a "yes" or a "no" answer from the arrested person.  Other responses, as here, that are clear and that do not intimate a possible desire to consult with counsel will not prevent the vindication of the person's limited right to counsel or require the officer to clarify the person's wish in that regard.

            Berg also argues that the deputy coerced him into making a decision about testing without consulting an attorney.  But we find nothing in the record to support such a claim.  Berg stated that he understood his rights and that he did not wish to say anything when asked if he wanted to consult an attorney.  He then voluntarily agreed to take the test.  There is nothing in the record suggesting that the deputy coerced Berg at any point.

            The evidence was properly admitted.

            Affirmed.

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