State v. White

493 N.W.2d 611, 1992 Minn. App. LEXIS 1230, 1992 WL 374031

• Court: Court of Appeals of Minnesota
• Decided: December 22, 1992
• Docket: No. C3-92-841
• Status: Published

Opinions

OPINION

DAVIES, Judge.

This appeal is from a judgment of conviction and sentence for gross misdemeanor DWI. Minn.Stat. § 169.121, subds. 1(d), 3(b), 3a (1990). We affirm.

FACTS

Appellant Arnold White was stopped after police received a telephone tip that he was driving while intoxicated. After White failed a preliminary breath test, he was arrested and taken to the county jail, where police read him the Implied Consent Advisory.

White was asked if he wanted to consult with an attorney. He responded that he did. But after the officer gave him a phone book and after they discussed whether White could call someone other than an attorney, the officer again asked White if he wanted to contact an attorney and White responded, “No.”

White then agreed to take an Intoxilyzer test. The test showed an alcohol level of .25. White moved to suppress the test result on grounds that he was denied his right to counsel under Friedman because he was not advised that, as an indigent, he had a right to a free consultation with an attorney. The trial court denied the motion.

The parties stipulated to the facts and White waived a jury trial. See State v. Lothenbach, 296 N.W.2d 854, 857 (Minn.1980) (method for expediting appellate review of suppression rulings). The state stipulated that White is indigent. The stipulation further states, “The defendant did not contact an attorney because he is not employed and knew that he could not afford to pay for an attorney.”¹

The trial court found White guilty of gross misdemeanor DWI. White appeals.

ISSUE

Did the trial court err in denying the motion to suppress?

ANALYSIS

White argues that the state constitutional right to counsel, announced in Friedman v. Commissioner of Public Safety, 473 N.W.2d 828 (Minn.1991), is denied to an indigent driver unless the driver is informed that an attorney is available at no cost.

The supreme court in Friedman held that

under the right-to-counsel clause in article I, section 6 of the Minnesota Constitution, an individual has the right, upon request, to a reasonable opportunity to obtain legal advice before deciding whether to submit to chemical testing.

Id. at 835. Friedman sets out what must be done to “vindicate” the right to counsel, and it does not explicitly require a statement that the indigent driver can obtain a free consultation.

White did not inform the officer that he was indigent. Unlike the right to counsel involved in Miranda warnings, the officer did not have an unlimited amount of time to vindicate the right. See id. at 835 (accused has only a limited amount of time in which to contact counsel).

DECISION

The trial court did not err in concluding that appellant’s right to counsel under Friedman had been fully vindicated.

Affirmed.

1 . The stipulation fails to establish whether or not what White "knew" about the availability to him of an attorney was actually the case. Perhaps White's right to consult counsel could have been vindicated by calling the public defender, or an attorney advertising a free initial consultation. The stipulation does not establish that these options were not available.