Martin v. Commissioner of Public Safety

• Decision Date: 11 December 1984
• Docket Number: No. C7-84-635,C7-84-635
• Citation: 358 N.W.2d 734
• Parties: Scott Edward MARTIN, Petitioner, Respondent, v. COMMISSIONER OF PUBLIC SAFETY, Appellant.
• Court: Minnesota Court of Appeals

Page 734

358 N.W.2d 734

Scott Edward MARTIN, Petitioner, Respondent, v. COMMISSIONER OF PUBLIC SAFETY, Appellant.

No. C7-84-635.

Court of Appeals of Minnesota.

Dec. 11, 1984.

Syllabus by the Court

1. A driver arrested for DWI has a limited statutory right to counsel which is not denied by an arresting officer's refusal to delay testing until an attorney arrives for a private conference so long as the driver is allowed to speak with the attorney by telephone.

2. The trial court's finding that the arresting officer had probable cause to believe petitioner had physical control of a motor vehicle is not clearly erroneous where the petitioner was found in the front seat of his car legally parked on the street with the ignition keys in his possession.

Joseph W. Lawver, Robert W. Junghans & Assoc., Edina, for respondent.

Hubert H. Humphrey, III, Atty. Gen., State of Minn., Linda F. Close, Joel A. Watne, Sp. Asst. Attys. Gen., St. Paul, for appellant.

Heard, considered and decided by WOZNIAK, P.J., and FORSBERG and LESLIE, JJ.

OPINION

FORSBERG, Judge.

Following revocation of his driver's license under Minn.Stat. Sec. 169.123 (1982), Scott Edward Martin petitioned for judicial review. After a hearing a district court referee rescinded revocation of Martin's license. The district court affirmed the referee's decision upon the Commissioner's petition for review. The Commissioner appeals from both orders.

FACTS

Sometime after 1:00 a.m. on February 9, 1984, a baby sitter called her employer because she was concerned about a person in a car parked across the street at 7626 Newton Avenue in Richfield, Minnesota. She said the car had been parked there for about 15 minutes. The parents called the police who sent two officers to the scene.

Evidence of physical control of the vehicle

The officers shined a light into the unlit and motionless car and discovered respondent Martin lying across the front seat with his head on the passenger side. They also noticed that an open beer can was sitting on the car's transmission hump. The car engine was not running and the keys were not in the car ignition. Martin sat up and spoke with the officers who asked for his driver's license. He stated that he did not have his license with him but identified himself as Scott Martin. He explained that he was waiting for a woman named Bonnie whom he had met at a bar. The police verified that a woman named Bonnie lived at 7626 Newton Avenue.

The officers observed that Martin showed signs of intoxication and asked him to take a preliminary screening test. Martin did not blow a sufficient specimen for a reading. The officers decided reasonable cause existed to believe Martin had been in physical control of his car while under the influence of alcohol so they took him into custody.

Martin's consultation with his attorney

Martin was given the implied consent advisory at the police station. He indicated he understood the advisory and asked to call an attorney. At 2:12 a.m. the police furnished Martin with a telephone which he used to call attorney Joseph Lawver. Lawver and Martin decided that Lawver would promptly go to the police station to counsel Martin and attempt to gain his release. When Martin hung up the phone, he told Officer Maloney his intentions. Maloney promptly called Lawver to tell him that he would not wait for Lawver to arrive and that Martin would have to make his decision immediately. Maloney advised Lawver that Martin would not be released that night but would be transferred to the Hennepin County Adult Detention Center. Maloney permitted Lawver and Martin to confer again on the telephone. Maloney completed the advisory at 2:24 a.m. and Martin refused to submit to a breathalyzer test. At trial Lawver testified that he lived a short distance from the police station and could have been there in 10 minutes.

ISSUES

1. Did the arresting officer vindicate respondent's right to counsel when he refused to delay completing the implied consent advisory until respondent's attorney arrived at the police station to speak with respondent?

2. Does respondent's presence in his car legally parked on a street with the engine off and the keys not in the ignition establish probable cause to believe he was in physical control of the vehicle?

ANALYSIS

I. Right to Counsel

The origin of case law on the limited statutory right to counsel of a person arrested for DWI is Prideaux v. State, Department of Public Safety, 310 Minn. 405, 247 N.W.2d 385 (1976).

The Prideaux court held:

Consistent with this opinion, any person who is required to decide whether he will submit to a chemical test in accordance with Sec. 169.123 shall have the right to consult with a lawyer of his own choosing before making that decision, provided that such a consultation does not unreasonably delay the administration of the test. The person must be informed of this right, and police officers must assist in its vindication. The 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. 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. The above procedure will ensure an adequate opportunity to consult with counsel without in any substantial way delaying the administration of the test.

Id. at 421, 247 N.W.2d at 394 (emphasis added). After Prideaux was decided the legislature amended Minn.Stat. Sec. 169.123 to allow a limited right to counsel: "the person has a right to consult with an attorney but * * * this right is limited to the extent that it cannot unreasonably delay administration of the test or the person will be deemed to have refused the test * * * " Minn.Stat. Sec. 169.123, subd. 2(b)(3) (1982). Failure to vindicate this limited right is a reasonable ground for refusing to take a chemical test.

Both Prideaux and Minn.Stat. Sec. 169.123, subd. 2(b)(3) specifically limit the right to counsel by requiring it to be exercised without unreasonably delaying chemical testing. This limitation permitted a conference in State, Department of Public Safety v. Kneisl, 312 Minn. 281, 251 N.W.2d 645 (1977), but did not permit a conference in State, Department of Public Safety v. Early, 310 Minn. 428, 247 N.W.2d 402 (1976). Because concerns with unreasonable delay similar to those in Early are present here, we reverse and find Martin's right vindicated.

Martin's position resembles the appellant's position in Early. Both drivers were allowed to...