State of Minnesota, Respondent, vs. Christopher Charles Tupper, Appellant.

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State of Minnesota, Respondent, vs. Christopher Charles Tupper, Appellant. A06-1805, Court of Appeals Unpublished Decision, December 31, 2007.

This opinion will be unpublished and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
A06-1805
 
State of Minnesota,
Respondent,
 
vs.
 
Christopher Charles Tupper,
Appellant.

 

Filed December 31, 2007

Reversed

Willis, Judge

 

Hennepin County District Court

File No. 06022124

 

 Lori Swanson, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and

 

Jay M. Heffern, Minneapolis City Attorney, Christopher J. Dixon, Assistant City Attorney, 333 South Seventh Street, Suite 300, Minneapolis, MN 55402 (for respondent)

 

Robert D. Sicoli, 8000 Flour Exchange Building, 310 Fourth Avenue South, Minneapolis, MN 55415 (for appellant)

 

            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Wright, Judge.


 

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant challenges his conviction of third-degree refusal to submit to chemical testing.  We conclude that appellant's limited right to counsel was not vindicated because the police stopped his attempts to contact an attorney based solely on a time limit imposed by Minneapolis Police Department policy, and we reverse.

FACTS

In the early morning of April 1, 2006, a Minneapolis police officer arrested appellant Christopher Charles Tupper on suspicion of driving while impaired (DWI) and administered a preliminary breath test that showed Tupper's alcohol concentration to be .145.  The officer transported Tupper to a police station, where he read the implied-consent advisory to Tupper.  At 2:45 a.m., before asking Tupper to submit to chemical testing, the officer gave Tupper a telephone and telephone books to assist him in contacting an attorney.  During the next 30 minutes, Tupper made several unsuccessful attempts to contact and consult with an attorney.  At 3:16 a.m., the officer told Tupper that he could make no more calls and that he would need to decide whether he would submit to chemical testing without the advice of counsel.

            Unsure of how to proceed and confused about the effect that the decision would have on his commercial driver's license, Tupper asked for "another 15 minutes to try to contact another lawyer out of the [phone] book."  The officer denied the request.  Tupper then refused the test and was subsequently charged with third-degree refusal to submit to chemical testing, in violation of Minn. Stat. §§ 169 A. 20, subd. 2, .26 (2004). 

Before trial, Tupper moved to suppress evidence of his refusal on the ground that his right to consult with counsel was not vindicated.  The district court denied Tupper's motion, concluding that Tupper was given a fair and reasonable opportunity to contact an attorney and that his limited right to counsel was vindicated.  Tupper then agreed to a bench trial on stipulated facts under State v. Lothenbach, 296 N.W.2d 854, 858 (Minn. 1980).  The district court found him guilty, and this appeal follows.

D E C I S I O N

The determination of whether a driver's limited right to counsel has been 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).  Once the facts are established, this court makes an independent legal determination of whether the defendant "was accorded a reasonable opportunity to consult with counsel . . . ."  Id.

Tupper contends that he was not afforded a reasonable time to consult with an attorney.  If a driver's right to counsel is not vindicated before he is required to submit to chemical testing, evidence obtained as a result of such testing cannot be admitted against him.  State v. Stradcutter, 568 N.W.2d 545, 547 (Minn. App. 1997).

The supreme court has held that the Minnesota Constitution guarantees an accused driver the right to a reasonable opportunity to get legal advice before deciding whether to submit to chemical testing.  Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).  This limited right to counsel will be considered vindicated if "the person is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel."  Id. (quoting Prideaux v. Dep't of Pub. Safety, 310 Minn. 405, 421, 247 N.W.2d 385, 394 (1976)).  But "[i]f 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.

What period of time is reasonable depends on the totality of the circumstances.  See Parsons v. Comm'r of Pub. Safety, 488 N.W.2d 500, 502 (Minn. App. 1992) (stating that "[i]n the final analysis, it is from the totality of the facts that one judges whether a driver had the opportunity to exercise the constitutional right to consult with an attorney").  As a threshold matter, the district court must decide whether the driver made "a good-faith and sincere effort to reach an attorney."  Kuhn, 488 N.W.2d at 842.  If so, the district court examines other relevant factors, including the time of day and the length of the detention, to determine whether the amount of time afforded was reasonable.  Id.

Here, Tupper argues that the district court's findings demonstrate his good-faith efforts to contact an attorney.  We agree.  The district court found that Tupper first contacted a friend, an attorney who practices labor law.  That friend was unable to give Tupper any legal advice but did give him the telephone number of a DWI attorney, whom Tupper unsuccessfully tried to contact.  Tupper then tried to contact a third attorney chosen randomly from the telephone book, again unsuccessfully.  "[R]efusing to try to contact more than one attorney or giving up trying to contact an attorney is fundamentally different than making a continued good-faith effort to reach an attorney."  Palme v. Comm'r of Pub. Safety, 541 N.W.2d 340, 345 (Minn. App. 1995) (quotation omitted), review denied (Minn. Feb. 27, 1996). 

The state contends that the district court's finding regarding the third attorney is clearly erroneous because the officer testified that Tupper attempted to contact only two attorneys.  Tupper testified that he attempted to contact three.  We defer to the district court's credibility determinations.  Sefkow v. Sefkow, 427 N.W.2d 203, 210 (Minn. 1988).  In any event, based on the district court's findings, we conclude that Tupper has satisfied the threshold requirement of showing that he made a good-faith effort to reach an attorney.

We now proceed to the other factors articulated in Kuhnthe time of day and the length of the detentionto determine if the amount of time that the officer afforded Tupper was reasonable.  We have concluded that if a driver is attempting to contact an attorney "in the early morning hours when contacting an attorney may be more difficult," the driver "should be given more time."  Kuhn, 488 N.W.2d at 842.  But when the length of the detention threatens to reduce the probative value of the chemical test, police are justified in limiting the time available to a driver to contact an attorney.  Id.; see also Friedman, 473 N.W.2d at 835 (stating that "the evanescent nature of the evidence in DWI cases requires that the accused be given a limited amount of time in which to contact counsel").

Here, Tupper made his telephone calls between 2:45 a.m. and 3:16 a.m.  Because of the inherent difficulty in reaching an attorney in the early-morning hours, Tupper should have been allowed more time than if he had been arrested during daytime hours.  And the officer testified that he was not concerned that Tupper's alcohol concentration would fall below the legal limit if the test were not administered at 3:16 a.m.  In Duff v. Comm'r of Pub. Safety, we stated that "it was unnecessary to terminate" a driver's conversation with his attorney when the officer testified "that he was not concerned that Duff would slip under the legal limit . . . if the test was not administered immediately."  560 N.W.2d 735, 737-38 (Minn. App. 1997). 

Accordingly, we turn to the question of whether the officer had some other legitimate basis for ending Tupper's attempts to reach an attorney.  Kuhn recognizes that the factors it describes are not "definitive or exclusive."  488 N.W.2d at 842.  And other cases have concluded that additional factors may affect the analysis.  E.g. Parsons, 488 N.W.2d at 502.  Here, the only rationale articulated by the officer for ending Tupper's attempts to contact an attorney at 3:16 a.m. was a 30-minute limit imposed by Minneapolis Police Department policy, which applies regardless of the time of day that a driver is attempting to contact an attorney.  This court has decided that "basing the ‘reasonable' time criteri[on] on a specific number of elapsed minutes alone is improper."  Kuhn, 488 N.W.2d at 842 (emphasis added).  Accordingly, we conclude that the officer's decision to stop Tupper's attempts to contact an attorneybased solely on the 30-minute policydid not afford Tupper a reasonable time to contact and consult with an attorney.  Consequently, Tupper's limited right to counsel was not vindicated.

            The state submits that regardless of the amount of time afforded to Tupper, his conversation with his friend, the labor lawyer, was sufficient to vindicate Tupper's right, notwithstanding the fact that the friend was unable to provide any advice.  In McNaughton v. Comm'r of Pub. Safety, we held that a driver's limited right to counsel was not vindicated when the driver spoke to an attorney who "refused to represent McNaughton or otherwise give him any advice."  536 N.W.2d 912, 915 (Minn. App. 1995).  The facts are substantially similar here.

Reversed.