State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1818

State of Minnesota,
Respondent,

vs.

Andre Lashon Carter,
Appellant.

Filed October 30, 2017
Affirmed in part, reversed in part, and remanded
Florey, Judge

Hennepin County District Court
File No. 27-CR-15-34321

Lori Swanson, Minnesota Attorney General, St. Paul, Minnesota; and

Susan L. Segal, Minneapolis City Attorney, Heather P. Robertson, Assistant City Attorney,
Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Davi E. Axelson, Assistant Public
Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Florey, Presiding Judge; Rodenberg, Judge; and Kirk,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
On appeal from two driving-while-impaired (DWI) convictions, appellant argues
that his right to consult with counsel prior to deciding whether to submit to a breath test
2
was not vindicated and that the results of the test must therefore be suppressed. Because
appellant’s right to counsel was vindicated, we affirm in part. However, appellant was
improperly convicted of two counts of second-degree DWI , in violation of Minn. Stat.
§ 609.04 (2014), and we therefore reverse in part and remand to the district court with
directions to vacate one of appellant’s DWI convictions.
FACTS
On December 5, 2015, at around 3:00 p.m. , appellant Andre Lashon Carter was
driving on the interstate. A state trooper observed him driving on the shoulder, kicking up
a spray of water. The trooper pulled up alongside his car and observed him talking on his
cellphone and, according to the trooper, not wearing a seatbelt. The trooper pulled
appellant’s car over, and after approaching, noticed indicia of intoxication. Appellant was
arrested on suspicion of DWI.
Appellant was taken to jail and read the implied-consent advisory.1 When asked if
he wanted to speak with an at torney, he responded, “Sure.” The trooper made a landline
telephone and directories available and also permitted appellant to use a cellphone.
Appellant was informed that he needed to contact an attorney, not make personal calls.
Appellant’s attorney time lasted a pproximately 32 minutes . During that time, he
made a good-faith effort to contact an attorney, and he was successful in that endeavor, but
he also engaged in delay tactics. A ppellant was using the landline and cellphone at the

1 Effective July 1, 2017, the language of Minn. Stat. § 169A.51, subd. 2 was changed, and
the advisory at issue is now referred to as a breath-test advisory. 2017 Minn. Laws ch. 83,
art. 2, § 3, at 355.
3
same time and making personal phone calls to discuss bail and to secure his release rather
than discussing with his attorney whether to submit to testing.
Approximately 12 times, the trooper had to keep appellant on track and remind him
that he was to contact an attorney , not make personal calls . During his attorney time,
appellant repeatedly asked the trooper questions, such as what he had been arre sted for,
what c ounty he was in, and when a prior DWI conviction had occurred. The trooper
responded to these questions, and a t one point, the trooper spoke loudly to inform the
attorney on the phone that appellant had one prior DWI. Towards the end of the 32 minutes
of attorney time, the trooper told appellant to “wrap it up.” Appellant ended his phone call
shortly thereafter.
After appellant’s attorney time had concluded, the trooper asked appellant if he
would take a breath t est; appellant replied either, “I’m not sure ,” or “Why not? Sure.” 2
Appellant submitted to a breath test, consisting of two subject samples. The first breath
sample registered a blood alcohol content (BAC) of .179, and the second registered a BAC
of .19.
Appellant was charged with two counts of second -degree DWI. He moved to
suppress the results of his breath test, arguing that his right to consult with counsel was not

2 The trooper testified that he understood appellant to respond, “Why not? Sure.” A
transcript of the exchange indicates that appellant responded, “I’m not sure.” The district
court noted this inconsistency, but made no finding as to appellant’s exact res ponse. For
purposes of this review, determining appellant’s exact response is inconsequential, as the
only issue raised by appellant is whether his right to counsel was vindicated. Appellant
does not contest that he voluntarily consented to a breath test.
4
vindicated because of the trooper’s interruptions . The district co urt denied appellan t’s
motion. Appellant was ultimately convicted of both DWI charges. This appeal followed.
D E C I S I O N
I.
Appellant’s sole argument on appeal is that the trooper’s interruptions interfered
with his right to consult with an attorney prior to submitting to a breath test, and therefore
the results of his breath test should have been suppressed.
A driver has the right to obtain legal advice prior to deciding whether to submit to
chemical testing. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991).
This limited right is vindicated if a DWI arrestee “is provided with a telephone prior to
testing and given a reasonable time to contact and talk with counsel.” Id. (quotation
omitted); see State v. White , 504 N.W.2d 211, 213 (Minn. 1993) (extending right to
criminal proceedings). There is no fixed amount of time that constitutes a “reasonable
time.” Mell v. Comm’r of Pub. Safety , 757 N.W. 2d 702, 713 (Minn. App. 2008). We
consider the totality of the circumstances in determining whether a reasonable time was
provided. Groe v. Comm’r of Pub. Safety, 615 N.W.2d 837, 841 (Minn. App. 2000), review
denied (Minn. Sept. 13, 2000). We look to the officer’s duties in vindicating the right to
counsel, as well as the arrested driver’s diligence in exercising the right. Kuhn v. Comm’r
of Pub. Safety , 488 N.W.2d 838, 842 (Minn. App. 1992), review denied (Minn. Oct. 20,
1992). “The determination of whether an officer vindicated a driver’s right to counsel is a
mixed question of law and fact.” Groe, 615 N.W.2d at 841. When the facts are undisputed,
we review de novo whether a defendant’s right to counsel was v iolated. State v.
5
Christiansen, 515 N.W.2d 110, 112 (Minn. App. 1994), review denied (Minn. June 15,
1994). Here, appellant concedes that the facts are not in dispute.
Given the totality of the circumstances, we conclude that appellant’s right to consult
with counsel prior to testing was vindicated. Appellant was given a landline telephone, a
cellphone, a telephone directory, and over 30 minutes to contact and consult with an
attorney. Appellant was able to reach an attorney and speak with that attorn ey for some
time. We have previously stated that when a defendant is able to consult with an attorney,
his rights are vindicated. Kuhn, 488 N.W.2d at 841-42. But see McNaughton v. Comm’r
of Pub. Safety, 536 N.W.2d 912, 9 15 (Minn. App. 1995) (stating tha t merely speaking to
an attorney does not vindicate an arrestee’s right if the attorney is unwilling to provide
advice).
Appellant contends that the trooper invaded his personal time with his attorney,
constantly interrupted the conversation, and “created a coercive atmosphere where
[appellant] did not have the opportunity to speak unfettered with counsel.” Regarding the
interruptions, the trooper did interrupt appellant to some degree to ensure that he was
calling an attorney. However, these interruptions were limited in duration, and the record
supports the district court’s finding that the interruptions were reasonable because appellant
was making personal calls to discuss bail and to secure his release. A DWI arrestee “must
make a diligent effort to contact an attorney.” Linde v. Comm’r of Pub. Safety, 586 N.W.2d
807, 809 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999). An officer need not
allow an arrestee “unfettered use of a telephone to call friends or relatives, unless the driver
specifies that the reason for the calls is to contact an attorney.” McNaughton, 536 N.W.2d
6
at 915; see Mulvaney v. Comm’r of Pub. Safety, 509 N.W.2d 179, 181 (Minn. App. 1993)
(stating that drivers “ may not call family members for advice ”). Here, the record reveals
that appellant never told the trooper that he needed to contact someone in order to locate
an attorney. Although the trooper spoke loudly while trying to inform appellant’s attorney
that appellant had one prior DWI, this interruption was limited in duration. Moreover, the
record reflects it was appellant who engaged the officer multiple times with repeated
questions, which the trooper answered.
As to appellant’s argument that the trooper’s presence created a coercive
atmosphere, the Minnesota Supreme Court has held that officers are not required to provide
DWI arrestees with a private telephone, and though an officer’s presence may inhibit the
conversation, “proper testing procedures generally require that the officer remain in the
presence of an arrestee in order to impeach any later testimony by an arrestee who submits
to testing that ingestion of something at the station might have affected the test results.”
Comm’r of Pub. Safety v. Campbell, 494 N.W.2d 268, 269-70 (Minn. 1992).
An officer’s constant interruptions could restrict an arrestee’s right to consult with
an attorney to such a degree that the arrestee’s right is not vindicated. “Police officers must
assist in the vindication of the right to counsel.” Mulvaney, 509 N.W.2d at 181. However,
given the totality of the circumstances in this case , including the undisputed fact that
appellant engaged in delay tactics and made personal calls, the trooper’s actions were
reasonable and did not appreciably impinge upon appellant’s right to counsel, which was
vindicated.

7
II.
Examination of the record establishes that appellant was improperly convicted of
two counts of second-degree DWI, in violation of Minn. Stat. § 609.04. According to the
warrant of commitment, appellant was convicted of both driving under the influence of
alcohol and having an alcohol concentration of 0.08 or more within two hours of driving .
Minn. Stat. § 169A.20 , subd. 1(1), (5) (2014). See Spann v. State, 740 N.W.2d 570, 573
(Minn. 2007) (stating that a reviewing court may “look to the official judgment of
conviction in the district court file as conclusive evidence of whether an offense has been
formally adjudicated” (quotations omitted)). He received concurrent sentences for the two
offenses committed on the same date. Neither party raised the issue of appellant’s multiple
DWI convictions on appeal.3
In State v. Clark, the defendant was convicted of both driving under the influence
of alcohol and driving with an alcohol concentration of 0.10 or more. 486 N.W. 2d 166,
167 (Minn. App. 1992). The defendant in Clark failed to challenge his multiple convictions
before the district court or on appea l. Id. at 170. Nevertheless , this court held that
convicting him of both DWI charges, arising under different subsections of the same
statute, was prohibited by Minn. Stat. § 609.04. Id. at 170-71. We therefore vacated one
of his convictions. Id. at 171.

3 Courts are permitted “at any time” to correct sentences not authorized by law . Minn. R.
Crim. P. 27.03, subd. 9 ; see Spann, 740 N.W.2d at 573 (addressing section 609.04 issue
not raised at sentencing or on direct appeal); see also Minn. R. Civ. App. P. 103.04 (stating
that this court may review other matters “as the interest of justice may require”).
8
Likewise, a ppellant’s two DWI c onvictions violate Minn. Stat. § 609.04, which
prohibits ‘“multiple convictions under different sections of a criminal statute for acts
committed during a single behavioral incident.’” Id. at 170 (quoting State v. Jackson, 363
N.W.2d 758, 760 (Minn. 1985)). We therefore reverse and remand to the district court,
with directions to vacate one of appellant’s convictions.
Affirmed in part, reversed in part, and remanded.