Ramsey County District Court File No. C6-02-1920
Considered and decided by Wright, Presiding Judge, Randall, Judge, and
If a criminal defendant places a call to an attorney that produces a callback from that attorney, he must either be allowed to speak with the attorney or the state must show that his reasonable time to speak with counsel has expired. If the state cannot show that his time has expired and they nonetheless deny the defendant access to his attorney, they have not fulfilled their obligation to vindicate the defendant's right to counsel.
The opinion of the court was delivered by: Randall, Judge
Appellant challenges the district court's order sustaining the revocation of his driver's license arguing that his right to counsel was not vindicated because the dispatcher did not verify that appellant was out of time to contact an attorney when an attorney tried to reach him. Rather, the dispatcher prevented appellant from speaking to his attorney before deciding whether to submit to an alcohol-concentration test. Since appellant's limited right to counsel was not vindicated, we reverse.
On February 2, 2002, at approximately 12:05 a.m., the White Bear Lake Police Department ("WBLPD"), received three telephone calls reporting erratic driving. The callers indicated that the vehicle in question was a red pickup truck that "took out a stop sign and fire hydrant near an intersection." Officer Scott Mueller was dispatched to the area and discovered appellant in his driveway, which is a short distance from the damaged hydrant and sign, talking to another officer. Appellant informed Mueller that the truck had not been driven for quite awhile. However, Mueller confirmed recent driving because the vehicle's engine was warm. Eventually, appellant admitted he had driven the vehicle and that he had been drinking. Appellant indicated that he had consumed two beers, two mixed drinks and two shots at a bar. Appellant did not mention any postdriving consumption.
After failing field sobriety tests, appellant was arrested for driving while impaired (DWI) and was transported to WBLPD. Upon arrival at WBLPD, Officer Mueller brought appellant to the booking room and Mueller read appellant the implied consent advisory. Appellant indicated that he wanted to speak with an attorney and he was provided with a telephone, various telephone directories, and given approximately 38 minutes to contact an attorney. After being warned that his time was nearing an end, appellant made five or six phone calls to a friend and his sister. Thereafter, appellant called Gerald Miller & Associates, attorneys, and left a message with the answering service. Eric Nelson, an attorney then employed by Gerald Miller & Associates, received the message and immediately called WBLPD.
When Nelson called the WBLPD number that appellant had provided on the answering machine, there was no answer. Nelson then dialed information to get WBLPD's main number and made a second attempt to contact appellant by dialing the main number. Nelson spoke with a dispatcher and identified himself as an attorney attempting to contact appellant. The dispatcher placed Nelson on hold. Shortly thereafter, the dispatcher informed Nelson that appellant's time had ended and that Nelson would not be allowed to speak with appellant. Nelson again identified himself as an attorney and stated that he had just received the page within the last minute and did not understand why he was not being permitted to speak to appellant. The dispatcher placed Nelson on hold a second time and again informed him that appellant's time had expired. As a result, Nelson was prevented from talking to appellant.
Officer Mueller was in the booking room the entire time, and testified at the hearing that no one ever contacted him, or asked him if appellant's time was up. There was no evidence in the record showing that Officer Mueller, or anyone else who would know when appellant's time was up, had any contact with the dispatcher. Appellant was unable to speak with legal counsel before his allotted 38 minutes were up. He was asked to submit to chemical testing for blood alcohol or have his driving privileges revoked. Appellant consented to the test and the results showed an alcohol concentration of 0.16.
The district court sustained revocation of appellant's driver's license under Minn. Stat. § 169.123 (2002), finding that appellant was clearly under the influence of alcohol at the time of driving due to his erratic driving conduct. Further, the court found that appellant's right to counsel was vindicated because: (1) appellant was given a reasonable amount of time to contact an attorney; (2) appellant did not make a good faith and sincere effort to ...