Steven Michael Wenzel, petitioner, Appellant,

This opinion will be unpublished and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
A17-0948

Steven Michael Wenzel, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed January 22, 2018
Reversed
Schellhas, Judge

Stearns County District Court
File No. 73-CV-16-10391

John L. Lucas, Minneapolis, Minnesota (for appellant)

Lori Swanson, Attorney General, Jamie Reinschmidt, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Schellhas, Pr esiding Judge; Ross, Judge; and Bratvold,
Judge.
U N P U B L I S H E D O P I N I O N
SCHELLHAS, Judge
Appellant challenges the district court’ s order sustaining the revocation of his
driving privileges. Because the state did not vindicate appellant’s right to counsel prior to
administering a breath test, we reverse the dist rict court’s order sustaining the revocation
of appellant’s driving privileges.

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FACTS
Responding to a dispatch ca ll, Officer Walters found a ppellant Steven Wenzel’s
unattended car in a ditch. Wenzel’s wife so on arrived and led Officer Walters to the
Wenzels’ home, where they lo cated Wenzel. Officers admini stered, and Wenzel failed,
various field sobriety tests. Officers then arrested Wenzel for driving while impaired
(DWI). Officer Walters transported Wenzel to jail and read him the implied-consent
advisory.1 Beginning at 1:48 a.m., Officer Walte rs offered Wenzel an opportunity to
contact an attorney. Wenzel made two calls, leaving a message during one and speaking
with his wife during the second . After speaking with his wi fe, Wenzel did not make or
request to make any additional calls. Six minutes later, at 1:54 a.m., Officer Walters asked
Wenzel if he would consent to a breath test, and Wenzel refused.
Officer Walters testified that Wenzel terminated the atto rney-consultation time
because he had “ceased making reasonable effort” to contact an attorney. At that time,
Wenzel had not received a call ba ck from the attorn ey for whom he had left a message,
from his wife, or from any attorney sought by his wife. The record does not reflect whether
Officer Walters told Wenzel that his attorney-consultation time had ended when he asked
Wenzel if he would submit to a test.

1 Effective July 1, 2 017, the legislature changed the la nguage of Minn. Stat. § 169A.51,
subd. 2 (2016), and the implied-consent adviso ry is now called a “breath test advisory.”
2017 Minn. Laws ch. 83, art. 2, 53, at 355 (codified as amended at Minn. Stat. § 169A.51,
subd. 2 (Supp. 2017)). We cite the most recent version of Minn. Stat. § 169A.51 because
its amendments do not affect the resolution of this case.

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Respondent Minnesota Commissioner of Pub lic Safety revoked Wenzel’s driving
privileges for refusing to submit to a br eath test, and Wenzel timely petitioned for
rescission of the revocation. After an implied- consent hearing, the district court denied
Wenzel’s petition.
This appeal follows.
D E C I S I O N
“At the time a breath test is requested, th e person must be informed . . . [of his or
her] right to consult with an attorney, but that this right is limited to the extent that it cannot
unreasonably delay administration of the [breath] test.” Minn. Stat. § 169A.51, subd. 2(3)
(Supp. 2017). “Under the right-t o-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.” Friedman v. Comm’r
of Pub. Safety , 473 N.W.2d 828, 835 (Minn. 1991). Th e right to counsel is considered
vindicated if a person is gi ven a reasonable time to contact and talk with counsel. Id. at
835. “If counsel cannot be contacted within a reasonable time, the person may be required
to make a decision regarding tes ting in the absence of counsel.” Id. (quotation omitted).
“The right to counsel is limited in DWI cases to ensure that consultation does not
unreasonably delay the administration of the test.” Jones v. Comm’r of Pub. Safety , 660
N.W.2d 472, 475 (Minn. App. 2003).
“The determination of whether an officer has vindicated a driver’s right to counsel
is a mixed question of law and fact.” Mell v. Comm’r of Pub. Safety, 757 N.W.2d 702, 712
(Minn. App. 2008). We will not set aside a district court’s findings of fact unless they are

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clearly erroneous. Jasper v. Comm’r of Pub. Safety , 642 N.W.2d 435, 4 40 (Minn. 2002).
Appellate courts “hold findings of fact as clearly erroneous only when [they] are left with
a definite and firm conviction that a mistake has been committed.” Id. (quotation omitted).
“Once [the] facts are established, their significance constitutes a question of law.” Parsons
v. Comm’r of Pub. Safety, 488 N.W.2d 500, 501 (Minn. App. 1992).
Wenzel argues that Officer Walters failed to vindicate his right to counsel by not
affording him a reasonable amount of time to contact an attorney. To determine if an officer
has provided a reasonable amount of attorney tim e, this court “balan ces the efforts made
by the driver against the efforts made by the officer,” focusing “both on the police officer’s
duties in vindicating the right to counsel and the defendant’s diligent exercise of the right.”
Mell, 757 N.W.2d at 713 (quotation omitted). Regarding whether a driver has been afforded
a reasonable length of time to contact an atto rney, this court has said that a “reasonable
time is not a fixed amount of time, and it ca nnot be based on elapsed minutes alone.” Id.;
see also Kuhn v. Comm’r of Pub. Safety , 488 N.W.2d 838, 842 (Minn. App. 1992)
(concluding that “basing the ‘reasonable’ tim e criteria on a specific number of elapsed
minutes alone is improper”), review denied (Minn. Oct. 20, 1992). “This court will consider
other factors, including the time of day and le ngth of delay since the driver was arrested,
but these are not exclusive factors. . . .” Mell, 757 N.W.2d at 713.
In Mell, this court rejected the driver’s argu ment that less than three minutes was
not a reasonable length of time, when Mell “attempted to contact his wife but not an
attorney,” walked away from the telephone to the attending deputy, told the deputy that he
could not reach his attorney and did not have the attorney ’s telephone number, “did not

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request another telephone directory or more time to attempt to contact an attorney,” “made
no further attempts to contact an attorney,” and nodded his head “when asked if he was
done trying to reach his attorney.” Id. “After three minutes, [the driver] ended his diligent
exercise of his right.” Id. He “changed the subject by de nying that he was driving and
disputing whether [the deputy] could force him to take the test.” Id.
In Mulvaney v. Comm’r of Pub. Safety , the driver told the a rresting officer that he
would be willing to submit to a ch emical test “if his lawyer so advised” and said that he
wanted to speak to a particul ar attorney. 509 N.W.2d 179, 180 (Minn. App. 1993). The
officer would not allow the driver to use the phone himself, but gave the driver a telephone
directory at approximately 12:22 a.m. Id. The driver gave the te lephone number to the
officer, who dialed the number, let the phone ring approximately 12 times, and hung up.
Id. The officer suggested that the driver try another attorney, but the driver said that he did
not want another attorney. Id. When the officer asked him if he would take the test, he
responded, “noper.” Id. at 180−81. The officer completed the implied-consent advisory at
12:28 a.m. and indicated that the driver refused to submit to a test. Id. at 181.
Citing Friedman, the Mulvaney court stated that “[a] driver must[] be given a
reasonable time to contact an attorney,” and that “[r]easonable time is not based on elapsed
minutes alone.” Id. The court stated that “[t]he first question is whether appellant made a
good faith and sincere effort to reach an attorney,” and “[t]he next question is whether the
officer complied with his duty to vindicate the right to counsel.” Id. at 181−82. The court
reversed the driver’s license revocation, concluding that, under the facts, the officer did not
vindicate the driver’s right to counsel. Id. at 182.

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In Kuhn, this court concluded that the driver “made a sincere effort to call and
consult with an attorney” when the driver attempted to contact an attorney three times over
24 minutes, after which the arresting officer said “you got to take the test now.” 488
N.W.2d at 839, 842. Because the driver “made a sincere effort to call and consult with an
attorney,” the record containe d nothing to indicate that the driver “was using delaying
tactics or decided on his own to stop trying to reach an attorney,” and the time of day was
2:03 a.m., this court concluded that the driv er’s right to consult with counsel was not
vindicated. Id. at 842; see also Jones, 660 N.W.2d at 476 (con cluding that, absent proof
that driver’s reasonable attorney-consultation time had expired, driver’s right to consult
with counsel was not vi ndicated when police di spatcher refused to a llow driver to speak
with attorney who responded to call); Duff v. Comm’r of Pub. Safety, 560 N.W.2d 735, 738
(Minn. App. 1997) (concluding that driver’s limited right to consult with attorney was not
vindicated because he was not given reasonable time).
In this case, the district court found that Wenzel “declined to attempt to contact
another [attorney]” and “had no intention of contacting any other attorney.” But these
findings of fact lack evidentiary support, and we therefore are left with a firm and definite
conviction that the findings ar e clearly erroneous. Officer Walte rs testified that he could
not recall if Wenzel “made any statements that stated I’m done talking with an attorney.”
And Wenzel did not testify at the implied-consent hearing. The record reflects that, before
asking Wenzel if he would submit to a breath test, Officer Walters did not ask Wenzel if
he was done trying to contact an attorney, and Wenzel made no affirmative action, such as
a nod or statement, to indicate he was done tr ying to contact an a ttorney. And the record

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contains no evidence that, during the six minut es of attorney-consultation time, Wenzel
employed delaying tactics or had decided to stop trying to contact an attorney.
The district court found that, “at a minimum [Officer Walters] was coming up
against the end of the two-hour window to obtain a breath te st and perhaps even past it,”
and the state argues that Officer Walters request ed that Wenzel consent to a breath test
after a reasonable amount of attorney-consulta tion time for that reason. But, as Wenzel
points out, Officer Walters did not testify that he was concerned about the two-hour
window of time following Wenzel’s driving or that the issue ever entered his mind.
Based on the facts in this case, we conclude that the state did not vindicate Wenzel’s
limited right to consult with an attorney. We therefore revers e the district court’s order
sustaining the revocation of Wenzel’s driving privileges.
Reversed.