Hunter Daniel Hanlon v. Commissioner of Public Safety

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2014).

STATE OF MINNESOTA
IN COURT OF APPEALS
A14-1541

Hunter Daniel Hanlon, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed August 10, 2015
Affirmed
Johnson, Judge

Scott County District Court
File No. 70-CV-14-1810

Max A. Keller, Keller Law Offices, Minneapolis, Minnesota (for appellant)

Lori Swanson, Attorney General, Kristi Nielsen, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Bjorkman, Presiding Judge; Johnson, Judge; and

Rodenberg, Judge.

UNPUBLISHED OPINION

JOHNSON, Judge

The commissioner of public safety revoked Hunter Daniel Hanlon’s driver’s

license after he was arrested for driving while impaired and a breath test showed that his

alcohol concentration exceeded .08. Hanlon sought judicial review of the

commissioner’s revocation, arguing that his limited right to counsel was not vindicated
before he was required to decide whether to submit to a breath test. The district court

denied Hanlon’s petition to rescind the revocation. We conclude that Hanlon’s limited

right to counsel was vindicated and, therefore, affirm.

FACTS

At 2:30 a.m. on January 1, 2014, Office Bryce Schuenke of the Prior Lake Police

Department stopped Hanlon’s vehicle for a moving violation. During the stop, Officer

Schuenke noticed indicia of impairment, suspected Hanlon of driving while impaired

(DWI), and conducted a road-side investigation. Officer Schuenke arrested Hanlon for

DWI and transported him to the police station.

At the police station, Officer Schuenke read Hanlon the implied-consent advisory,

which informed him that refusal to submit to chemical testing is a crime and that he had a

limited right to consult with an attorney. Hanlon said that he understood the advisory and

wished to consult with an attorney. Officer Schuenke provided him with a telephone and

multiple telephone books at 3:20 a.m. Hanlon waited for about ten minutes and then

called his father, who is not an attorney. Hanlon’s father did not answer Hanlon’s first

call but answered when Hanlon called again a few minutes later. The two men spoke for

a few minutes. Hanlon’s father said that he would try to find an attorney and then called

his wife for assistance.

Hanlon later called his father a third time. Hanlon’s father spoke directly with

Officer Schuenke. Hanlon’s father then spoke with Hanlon and told him that he should

take the breath test. Hanlon’s father discontinued his efforts to find an attorney.

Hanlon’s father later testified that Officer Schuenke said to him that the time for

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consulting with an attorney was ending, so he told his son to take the test because he was

“fearful of any other things that could happen if [Hanlon] didn’t.” Hanlon agreed to take

a breath test at 3:51 a.m. The test revealed an alcohol concentration of .20.

The commissioner of public safety revoked Hanlon’s driver’s license. See Minn.

Stat. § 169A.52, subd. 4(a) (2014). Hanlon petitioned the district court for judicial

review of the commissioner’s revocation. The district court held a hearing on the petition

in May 2014. The sole issue at the hearing was whether Hanlon’s limited right to counsel

was vindicated. The commissioner called Officer Schuenke as a witness; Hanlon and his

father testified on his behalf. The district court found that Hanlon’s limited right to

counsel was vindicated. Accordingly, the district court denied Hanlon’s petition and

sustained the revocation of his license. Hanlon appeals.

DECISION

Hanlon argues that the district court erred by concluding that his limited right to

counsel was vindicated. Specifically, Hanlon argues that Officer Schuenke violated his

limited right to counsel when he “prematurely cut off” Hanlon’s consultation time.

A driver who is suspected of driving while impaired has a limited right to consult

with an attorney before deciding whether to submit to chemical testing. Friedman v.

Commissioner of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991) (citing Minn. Const.

art. I, § 6). The driver’s limited right to consult with an attorney before testing is

“vindicated if the person is provided with a telephone prior to testing and given a

reasonable time to contact and talk with counsel.” Id. (quotation omitted). If the driver is

unable to consult with an attorney within a reasonable time, “the person may be required

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to make a decision regarding testing in the absence of counsel.” Id. (quotation omitted).

This court applies a clear-error standard of review to the district court’s factual findings

and a de novo standard of review to a district court’s conclusion as to whether a driver’s

limited right to counsel was vindicated. State v. Christiansen, 515 N.W.2d 110, 112

(Minn. App. 1994), review denied (Minn. June 15, 1994).

In deciding whether a driver’s limited right to counsel was vindicated, a court

should consider the totality of the circumstances surrounding the implied-consent

advisory and the driver’s opportunity to consult with an attorney. Mell v. Commissioner

of Pub. Safety, 757 N.W.2d 702, 713 (Minn. App. 2008). The caselaw has recognized a

few factors that generally are relevant to the question whether a driver was given a

reasonable opportunity to consult with counsel: whether the driver made a good-faith and

sincere effort to reach an attorney, the time of day when the driver attempted to contact

an attorney, and the length of time the driver had been under arrest when his consultation

time was ended. See Palme v Commissioner of Pub. Safety, 541 N.W.2d 340, 345 (Minn.

App. 1995), review denied (Minn. Feb. 27, 1996); Kuhn v. Commissioner of Pub. Safety,

488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Minn. Oct. 20, 1992).

In this case, the totality of the circumstances supports the district court’s

conclusion that Hanlon’s limited right to counsel was vindicated. The most significant

factor is the relatively generous amount of time that Hanlon was given to consult with an

attorney. Officer Schuenke allowed Hanlon 31 minutes before requiring him to decide

whether to submit to chemical testing. Hanlon’s consultation time is similar to the

amounts of time in prior cases in which we have concluded that the limited right to

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counsel was vindicated. See Gergen v. Commissioner of Pub. Safety, 548 N.W.2d 307,

310 (Minn. App. 1996) (36 minutes), review denied (Minn. Aug. 6, 1996); Palme, 541

N.W.2d at 342, 345 (29 minutes). Hanlon’s consultation time is not as limited as the

amounts of time in prior cases in which we have concluded that the limited right to

counsel was not vindicated. See Kuhn, 488 N.W.2d at 842 (24 minutes); Davis v.

Commissioner of Pub. Safety, 509 N.W.2d 380, 385 (Minn. App. 1993) (23 minutes),

aff’d, 517 N.W.2d 901 (Minn. 1994).

We recognize, of course, that a proper analysis must be based on the totality of the

circumstances, not “on elapsed minutes alone.” Mell, 757 N.W.2d at 713. Accordingly,

we consider whether additional time likely would have allowed Hanlon to actually

contact and consult with an attorney. The evidence in the record suggests that Hanlon

was not making meaningful progress in contacting an attorney and was not close to

making contact with an attorney. After 31 minutes, he had made contact only with his

father, his father had made contact only with his wife, and she had not made contact with

any other person and had not even identified a particular attorney. Nothing in the record

indicates that a reasonable amount of additional time likely would have resulted in

consultation with an attorney. Rather, the record indicates that Hanlon and his family

would have needed an unreasonable amount of time to identify and make contact with an

attorney and arrange for a consultation with Hanlon. The expected benefit of additional

time is a relevant factor because the caselaw recognizes that “police officers must be

allowed to return to the streets to serve the public interest.” See Parsons v.

Commissioner of Pub. Safety, 488 N.W.2d 500, 502 (Minn. App. 1992). This

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consideration is especially important during the wee hours of New Years’ Eve. Thus, the

district court’s conclusion that Hanlon’s limited right to counsel was vindicated is

justified by the amount of time actually given to Hanlon and the unlikelihood that

additional time would have been efficacious.

Hanlon relies on Davis in arguing that he was making a good faith and sincere

effort to contact an attorney when Officer Schuenke terminated his consultation time.

The district court did not make any finding as to whether Hanlon was making a good

faith and sincere effort to contact an attorney. Similarly, we do not consider that to be an

important factor in our analysis of the totality of the circumstances in this case, for the

reasons expressed above. If it were an important factor, the Davis opinion would provide

only moderate support for Hanlon’s argument. In Davis, the driver called a friend who

was a paralegal and asked the friend for help in contacting an attorney. 509 N.W.2d at

385. We affirmed the district court’s finding that the driver had made a good faith and

sincere effort to contact an attorney. Id. at 385-86. Hanlon’s reliance on Davis is

appropriate insofar as Davis illustrates that seeking assistance from another person is not

necessarily inconsistent with a good-faith and sincere effort to contact an attorney. But

Hanlon’s effort was more attenuated than the driver’s effort in Davis, which involved

only one other person. Id. at 385. Hanlon called one person (his father), who then called

another person (the father’s wife). Hanlon’s delegation of his search for an attorney goes

beyond the facts of Davis. In any event, this appeal does not turn on whether Hanlon was

making a good faith and sincere effort to contact an attorney when Officer Schuenke

terminated his consultation time.

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 At oral argument, Hanlon argued that the district court erred by not making an

express finding concerning whether Hanlon ended his consultation time voluntarily or

whether Officer Schuenke “cut him off.” Hanlon requested that we reverse and remand

for additional fact-finding. We decline to consider this argument because it was not

adequately briefed. See State v. Morrow, 834 N.W.2d 715, 724 n.4 (Minn. 2013).

Furthermore, Hanlon did not preserve that argument and that request for relief because he

did not file a motion for amended findings in the district court. Thus, even if the

argument had been properly asserted in his appellate brief, we would not consider the

possibility of a remand because our review would be limited to “whether the evidence

sustains the findings of fact, and whether the findings sustain the conclusions of law and

the judgment.” See U.S. Bank N.A. v. Cold Spring Granite Co., 802 N.W.2d 363, 370

(Minn. 2011) (citing Gruenhagen v. Larson, 310 Minn. 454, 458, 246 N.W.2d 565, 569

(1976)); see also Hartman v. Blanding’s Inc., 288 Minn. 415, 423, 181 N.W.2d 466, 470

(1970).

In sum, the district court did not err by concluding that Hanlon’s limited right to

counsel was vindicated and by denying his petition to rescind the revocation of his

driver’s license.

Affirmed.

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