James Edward Bodin, 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This opinion will be unpublished and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

A03-297

 

 

James Edward Bodin,

petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

 

Filed December 9, 2003

Affirmed
Crippen, Judge*

 

Dakota County District Court

File No. C8-02-3259

 

 

Samuel A. McCloud, Carson James Heefner, McCloud & Boedigneimer, P.A., Suite 1000, Circle K, Box 216, Shakopee, MN  55379 (for appellant)

 

Mike Hatch, Attorney General, Sean Ryan McCarthy, Assistant Attorney General, Suite 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)

 

            Considered and decided by Wright, Presiding Judge, Shumaker, Judge, and Crippen, Judge.

 

U N P U B L I S H E D   O P I N I O N

CRIPPEN, Judge

            Appealing from a trial court order sustaining the revocation of his driver's license, appellant James Bodin contends that his right to counsel was not vindicated when the arresting officer refused to provide his attorney with the exact results of a preliminary breath test.  Because appellant was given what the law demands to vindicate his right to counsel, a reasonable amount of time to consult with a lawyer, we affirm.

FACTS

            During appellant's telephone consultation with his attorney, the lawyer asked for the exact preliminary breath test (PBT) result.  Told this, the officer stated that the PBT showed appellant's alcohol concentration was over .10, but he refused to disclose the exact result.[1]  Appellant refused to submit to further testing and his driving privileges were revoked.  In subsequent judicial proceedings he unsuccessfully challenged the revocation of his driving privileges.

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.  See Kuhn v. Comm'r of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).  When the material facts are not in dispute, as in this case, we review the trial court's application of the law de novo.  Igo v. Comm'r of Pub. Safety, 615 N.W.2d 358, 361 (Minn. App. 2000), review denied (Minn. Oct. 17, 2000).

            Under the Minnesota Constitution, a driver has a right to consult with an attorney before deciding whether to submit to chemical testing, provided the consultation does not unreasonably delay the testing.  Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).  A police officer must inform the driver of the right to counsel and assist in vindicating this right.  Gergen v. Comm'r of Pub. Safety, 548 N.W.2d 307, 309 (Minn. App. 1996), review denied (Minn. Aug. 6, 1996).  A driver's right to counsel is vindicated if the driver "is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel."  Friedman, 473 N.W.2d at 835 (quotation omitted). 

            Appellant argues that he was denied the right to have a meaningful consultation with his attorney because the arresting officer did not disclose his exact PBT result.[2]  Specifically, he claims that his attorney was "unable to properly and meaningfully advise" him on whether to submit to additional testing without the exact result.

            In Hartung v. Comm'r of Pub. Safety, 634 N.W.2d 735 (Minn. App. 2001), review denied (Dec. 11, 2001), this court addressed the issue of whether a driver's right to counsel is vindicated when a police officer refuses to provide a driver with his exact PBT result.  In circumstances not unlike those in this case, the officer in Hartung also informed Hartung that he had failed the PBT but declined to provide the exact result.  Id. at 737.  This court held that because Hartung's right to contact counsel was otherwise properly vindicated, he was not denied the value of consultation when the officer refused to provide him with his exact PBT result.  Id. at 738.

            Appellant attempts to distinguish his case by arguing solely that there was more good faith exhibited by the officer in Hartung, who did not know Hartung's exact PBT result.  Although this distinction may have something to do with the equity of the result in Hartung, the case establishes that, except for the time to consult, the question of vindication does not extend to matters in which it must be determined whether the officer assisted in making the contact with counsel meaningful.

            Appellant also contends that the Hartung decision is ill advised, citing other authority referring to meaningful consultation with counsel.  See Duff v. Comm'r of Pub. Safety, 560 N.W.2d 735 (Minn. App. 1997) (holding appellant's right to consult with attorney not vindicated because he was not given reasonable time to have meaningful consultation due to officer's termination of conversation).  As respondent states, although cases such as Duff refer to meaningful consultation, related precedent demands only the provision of time and opportunity to contact and consult with counsel.  The root of the consultation right rests in Friedman, which deals with the occasion and not the quality of consultation.  Id., 473 N.W.2d at 835.

            Affirmed.

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

[1] Appellant explains that the importance of obtaining an exact PBT result was greatly diminished by 2003 statutory amendments that were not in effect at the time of the police contact in this case.  Prior to these amendments, a driver with an unusually high PBT result could escape some penalties by refusing further testing.  The amendments enlarge refusal penalties.  See 2003 Minn. Laws 1st Spec. Sess. ch. 2, art. 9, §§ 4-6.

[2] Respondent asserts that this issue is raised for the first time on appeal, but we proceed in light of the breadth of issues posed to the trial court and the specific order of the court that appellant's right to a meaningful consultation with an attorney was vindicated.