Parsons v. Commissioner of Public Safety
Decision Date | 11 August 1992 |
Docket Number | No. C4-92-508,C4-92-508 |
Citation | 488 N.W.2d 500 |
Parties | Sarah Starr PARSONS, Petitioner, Respondent, v. COMMISSIONER OF PUBLIC SAFETY, Appellant. |
Court | Minnesota Court of Appeals |
Syllabus by the Court
1. The Minnesota Constitution gives a driver a limited right to consult an attorney before deciding whether to submit to a chemical test. Where the facts are undisputed, it is a legal determination whether the driver was accorded a reasonable opportunity to consult with counsel.
Thomas E. Bauer, Minneapolis, for respondent.
Hubert H. Humphrey, III, Atty. Gen., Nancy J. Bode, Asst. Atty. Gen., Joel A. Watne, Sp. Asst. Atty. Gen., St. Paul, for appellant.
Considered and decided by FORSBERG, P.J., and SHORT and HARTEN, JJ.
The driver's license of Sarah Starr Parsons was revoked pursuant to Minn.Stat. Sec. 169.123, subd. 4 (1990). Upon her petition for review of that revocation, the trial court ordered the revocation rescinded. On appeal, the Commissioner of Public Safety argues Parsons' limited right to counsel was vindicated when she was provided access to a telephone and telephone books and was allowed over forty minutes in which to consult an attorney. We agree and reverse.
Parsons was arrested for driving while under the influence of alcohol and was transported to the Eden Prairie Police Department for testing. At 1:36 a.m., the arresting officer read the standard implied consent advisory to Parsons. Parsons told the arresting officer she understood the advisory form and wished to consult with an attorney.
At 1:39 a.m., the officer provided Parsons with a telephone and the Minneapolis white and yellow page telephone directories. Parsons telephoned a non-lawyer friend and talked to him until 1:58 a.m. Parsons told the officer her friend would contact an attorney for her.
At 2:17 a.m., the officer advised Parsons she would have to make the decision on her own. After some discussion, Parsons refused to submit to testing. The refusal was recorded at 2:28 a.m., over forty minutes after Parsons was provided a telephone. Nine minutes later, an attorney called and advised Parsons to submit to testing. The officer stated the refusal was not subject to reconsideration and refused to administer the test. Parsons' driver's license was revoked for refusing testing under the implied consent law.
I. Did the police officer violate Parsons' constitutional right to consult with an attorney prior to deciding to take an alcohol concentration test?
II. Did Parsons' subsequent change of mind cure her earlier refusal to take the test?
The question of whether a person has been allowed a reasonable time to consult with an attorney is a mixed question of law and fact. Establishing the historical events is a question of fact. Once those facts are established, their significance becomes a question of law. See, e.g., Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn.1985). The Commissioner challenges only the trial court's application of law to the facts, so our review of whether Parsons was allowed a reasonable time to consult with an attorney is de novo.
The availability of a driver's right to consult an attorney prior to deciding whether to take an alcohol concentration test has evolved over time. In Prideaux v. State, Dep't of Pub. Safety, 310 Minn. 405, 419, 247 N.W.2d 385, 393 (1976), the Supreme Court found a statutory right to counsel existed. Several cases addressed the issue of whether a driver was given a reasonable amount of time in which to exercise that statutory right. See State, Dep't of Pub. Safety v. Kneisl, 312 Minn. 281, 286, 251 N.W.2d 645, 648-49 (1977) ( ); State, Dep't of Pub. Safety v. Early, 310 Minn. 428, 430, 247 N.W.2d 402, 403 (1976) ( ); Jones v. Commissioner of Pub. Safety, 364 N.W.2d 854, 856-57 (Minn.App.1985) ( ); Clough v. Commissioner of Pub. Safety, 360 N.W.2d 428, 430 (Minn.App.1985) ( ); Martin v. Commissioner of Pub. Safety, 358 N.W.2d 734, 736 (Minn.App.1984) ( ); Eveslage v. Commissioner of Pub. Safety, 353 N.W.2d 623, 627 (Minn.App.1984) ( ).
Because of a statutory amendment to the implied consent advisory in 1984, the Supreme Court found a driver no longer had a statutory right to counsel before submitting to testing. See Nyflot v. Commissioner of Pub. Safety, 369 N.W.2d 512, 515 (Minn.1985), appeal dismissed, 474 U.S. 1027, 106 S.Ct. 586, 88 L.Ed.2d 567 (1985). The court specifically rejected the driver's claim to a federal constitutional right to consult with counsel prior to deciding whether to submit to testing. Id. at 513. In Friedman v. Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn.1991), the Supreme Court addressed the driver's right to counsel under Minn. Const. art. I, Sec. 6, and held an individual has a limited right to obtain legal advice before deciding whether to submit to chemical testing. The question of what constitutes a reasonable time to exercise this state constitutional right is now before this court in several cases. See, e.g., Kuhn v. Commissioner of Pub. Safety, --- N.W.2d ---- (Minn.App. Aug. 11, 1992).
In analyzing this issue, we recognize a number of competing factors. First, the choice of whether to submit to the chemical testing procedures is a very important one to an individual driver. Friedman, 473 N.W.2d at 832. The driver must make a critical and binding decision that will affect subsequent proceedings. Prideaux, 310 Minn. at 411, 247 N.W.2d at 389-90. Second, the purpose of the right to counsel is to protect lay persons who lack both skill and knowledge to defend themselves. Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932). When asked to submit to a chemical test, a driver will look for guidance. An attorney, not a police officer, is the appropriate source of legal advice at this critical stage. Friedman, 473 N.W.2d at 833. Third, alcohol in the blood stream dissipates at an average of .015 percent per hour. See Donald H. Nichols, The Drinking Driver in Minnesota 113-20 (2d ed. 1989). Proof of the offense is evanescent, and deterioration of evidence concerns the legislature and the courts. Friedman, 473 N.W.2d at 835. A driver's rights should not be interpreted so as to interfere unreasonably with the evidence gathering purposes of the statute. State, Dep't of Pub. Safety v. Wiehle, 287 N.W.2d 416, 419 (Min...
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