Jeffrey Paul Nieland, 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This opinion will be unpublished and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
A17-2021

Jeffrey Paul Nieland, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed May 29, 2018
Affirmed
Kirk, Judge

Douglas County District Court
File No. 21-CV-17-697

Robert D. Stoneburner, Stoneburner Law Office, Paynesville, Minnesota (for appellant)

Lori Swanson, Attorney General, Stephen D. Melchionne, Assistant Attorney General, St.
Paul, Minnesota (for respondent)

Considered and decided by Peterson, Presiding Judge; Kirk, Judge ; and Jesson,
Judge.
U N P U B L I S H E D O P I N I O N
KIRK, Judge
Appellant challenges the 90 -day revocation of his dri ver’s license following his
arrest for driving while impaired, arguing that the district court erred in sustaining the
revocation because the arresting deputy failed to vindicate appellant’s limited right to

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counsel. Because we conclude that appellant’s limited right to counsel was vindicated, we
affirm.
FACTS
On March 25, 2017, a Douglas County sheriff’s deputy arrested appellant Jeffrey
Paul Nieland for driving while impaired (DWI). The deputy transported appellant to jail
and placed him in a holding room. A surveillance camera in the holding room recorded
the following sequence of events.
The deputy read an implied-consent advisory to appellant, but appellant expressed
confusion over contacting an attorney, so the deputy read the advisory a second time. After
the second reading, appellant indicated that he understood it. The deputy then informed
appellant that he could contact an attorney or decide on his own whether to take the breath
test. A stack of phone books and a telephone were located in the holding room within
appellant’s reach. Appellant picked up a phone book and began paging through it, but
stated, “I don’t know who I could call.” The deputy told appellant that the phone books
listed attorneys with 24 -hour availability. Appellant referenced being inexperienced and
asked for the deputy’s recommendation. The deputy explained that he did not recommend
attorneys, but that appellant could choose to call any attorney and could later switch
attorneys. The district court transcribed the following exchange between appellant and the
deputy:
[Appellant]: Okay so let’s say I call this guy ( points to the
page) and then what happens?

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[Deputy]: Ah, he’s just going to get some basic informat ion
and you can just speak with him. Kinda like let him know
where you’re at and what’s going on.

[Appellant]: ([Appellant] faces the phone, moves his hands
closer to the phone, and makes gestures with his hands ) Well,
I guess I don’t have a choice, I guess.

[Deputy]: Well, you have a choice, whether you want to
contact an attorney or not. So.

[Appellant]: ([Deputy] gets up and touches the phone ). Well,
I’d like to, not this one ( points to the page again ). I mean my
own guy eventually, but . . .

[Deputy]: Okay.

[Appellant]: You know what I mean?

[Deputy]: You don’t have your own though right now, correct?

[Appellant]: No. Indecipherable.

[Deputy]: Yeah, you can. . . . No. I know. (Lifting the receiver).

[Appellant]: Know what I mean?

[Deputy]: Let me see if I can get this here, it’s been awhile.
What’s the number?

[Appellant]: 612-[xxx-xxxx] ([Appellant] recites the number
from the page he’s been pointing at).

[Deputy]: ( Begins dialing ) . . . Oh, hold on . . . ( Continues
dialing). I think I gotta dial a code. (Looks at something on the
desk). Alright. ( [Deputy] makes sure the call connects and
hands the receiver to [appellant]). It should work. Yep.
The deputy then handed the phone to appellant, left the holding room, and observed
appellant through an open doorway while appellant spoke to a person on the phone. The
deputy reentered the room and used a computer, but did not speak to appellant during the

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phone call. After approximately 13 to 14 minutes, appellant concluded the phone call by
hanging up the receiver. The deputy asked appellant, “Alright, you had a chance to speak
with an attorney. Will you take a breath test?” Appellant responded, “Yes.” Appellant
then submitted to a breath test, which registered an alcohol concentration of 0.11, in excess
of the legal limit.
Respondent Minnesota Commissioner of Public Safety subsequently revoked
appellant’s driving privileges for 90 days. Appellant petitioned the district court for
rescission of the revocation, arguing, in part, that his rig ht to counsel was not vindicated,
which the district court denied following a contested implied-consent hearing. Appellant
filed a motion for amended findings or a new trial, which the district court construed as a
motion for reconsideration, and denied.
This appeal follows.
D E C I S I O N
Appellant argues that his limited right to counsel was not vindicated because (1) he
was not allowed to consult an attorney of his own choosing and (2) the deputy did not
afford appellant reasonable time and means to contact an attorney. We disagree.
“At the time a breath test is requested, the 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)

5
(Supp. 2017).1 “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.” Friedman v. Comm’r
of Pub. Safety , 473 N.W.2d 828, 835 (Minn. 1991). Police officers must assist in the
vindication of this right. Id.
“The right to counsel is considered vindicated when the driver is provided with a
telephone prior to testing and given a reasonable amount of time to contact and consult
with an attorney.” Mell v. Comm ’r of Pub. Safety , 757 N.W.2d 702, 712 (Minn. App.
2008). “If counsel cannot be contacted within a reasonable time, the person may be
required to make a decision regarding testing in the absence of counsel. ” Friedman, 473
N.W.2d at 835 (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, 757 N.W.2d at 712. “[We] defer to the district
court’s credibility determinations and ability to weigh the evidence.” Constans v. Comm’r
of Pub. Safety, 835 N.W.2d 518, 523 (Minn. App. 2013). We will not set aside a district
court’s findings of fact unless they are clearly erroneous. Jasper v. Comm’r of Pub. Safety,

1 Effective July 1, 2017, the legislature amended the language of Minn. Stat. § 169A.51,
subd. 2 (2016), and the implied -consent advisory 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)).

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642 N.W.2d 435, 440 (Minn. 2002) . “To the extent the facts are uncontested, whether a
driver was given a reasonable opportunity to consult with counsel is a question of law that
is reviewed de novo.” Linde v. Comm’r of Pub. Safety, 586 N.W.2d 807, 809 (Minn. App.
1998).
I. Appellant consulted with an attorney of his own choosing.

Appellant argues that the deputy selected his attor ney, and he disputes the district
court’s findings that he was not actively attempting to contact an attorney and that the
deputy only provided assistance. We disagree.
A driver has “the right to consult with a lawyer of his own choosing” before deciding
whether he will submit to a chemical test. Friedman, 473 N.W.2d at 835 (quotation
omitted). This right may be vindicated even if law enforcement does not allow the driver
to personally dial a telephone number. Linde, 586 N.W.2d at 809-10.
In Delmore, we concluded that the officer selected the driver’s attorney when in
response to the driver’s request to speak to an attorney, “[t]he officer immediately picked
up a telephone, dialed a number and handed the phone to [the driver] indicating that here
was the attorney to talk to .” Delmore v. Comm’ r of Pub. Safety , 499 N.W.2d 839, 842
(Minn. App. 1993) . In McNaughton, we concluded that the driver was not allowed to
consult with an attorney of his own choosing when the driver was g iven only a list of five
pre-selected attorneys and did not have access to a phone book or directory assistance.
McNaughton v. Comm’r of Pub. Safety, 536 N.W.2d 912, 915 (Minn. App. 1995). Finally,
in Haveri, we concluded that the driver was allowed to consult with an attorney of his own

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choosing when in response to the driver stating that he did not know any attorneys, the
officer suggested an attorney and wrote down the attorney’s phone number, but the driver
had access to a telephone and a phone book. Haveri v. Comm’r of Pub. Safety, 552 N.W.2d
762, 766-67 (Minn. App. 1996).
In this case, the district court found that (1) appellant’s gesture toward the phone
indicated his selection of an attorney and a request for assistance in placing the phone call;
(2) the deputy acted to assist appellant in contacting, rather than selecting, an attorney;
(3) appellant voiced no objection once the deputy began dialing the attorney’s number and
did not request additional attorney time after ending the phone call; and (4) in light of
appellant’s previous questions about changing attorneys at a later date, appellant’s
statement, “[N]ot this one. I mean my own guy eventually,” referred to his desire to select
a different long -term attorney, rather than his desire to cont act a different attorney that
night.
The evidence supports the district court’s findings that appellant indicated his
selection of an attorney and the deputy acted to assist appellant to contact rather than to
select an attorney. Appellant had access to a phone and to phone books. As captured by
the video recording, appellant pointed to an attorney’s advertisement while browsing a
phone book. He then looked at the phone and moved his hands towards it, and told the
deputy that he’d like to contact an attorney. When the deputy stood up and reached for
the phone, appellant stated, “[N]ot this one. I mean my own guy eventually, but . . . .” The
deputy stopped and asked appellant whether he presently had his own counsel. Appellant

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said, “No,” and then made a statement that is indeci pherable on the audio recording, to
which the deputy responded, “Yeah, you can. . . . No. I know.” The deputy then asked
appellant for the phone number, which appellant recited.
Despite appellant’s apparent indecisiveness over whether to contact an attorney, the
evidence shows that the deputy reasonably interpreted appellant’s actions as selecting an
attorney and seeking the deputy’s assistance to place a phone call. Had appellant wished
to select a different attorney, or select no attorney at all, he had ample opportunities to tell
the deputy of that decision, but he did not do so. O n this record, we conclude that the
deputy vindicated appellant’s right to counsel to the extent that appellant was allowed to
consult with an attorney of his own choosing.
II. Appellant received a reasonable amount of time and means to contact an
attorney.

Appellant argues that he was not afforded a reasonable amount of time and means
to contact an attorney because only two minutes elapsed from the deputy’s second reading
of the implied-consent advisory until the deputy dialed the phone number that appellant
recited and then handed the receiver to appellant. We are not persuaded.
We determine whether a driver received a reasonable amount of time to contact and
consult with an attorney based on the totality of the circumstances. Parsons v. Comm’r of
Pub. Safety, 488 N.W.2d 500, 502 (Minn. App. 1992 ). “A reasonable time is not a fixed
amount of time, and it cannot be based on elapsed minutes alone. ” Mell, 757 N.W.2d at
713. In our determination, we “ balance the efforts made by the driver against the efforts
made by the officer,” focusing on the officer’s duty to vindicate the driver’s limited right

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to counsel and the driver’s “diligent exercise of that right.” Id. (quotation omitted). We
may also consider other factors such as “the time of day and length of delay” from the time
at which the driver was arrested. Id.
Here, appellant, on his own, engaged the deputy with questions about which
attorney to contact and how the process worked. As discussed, appellant had access to a
phone and to phone books, and the record shows that appellant selected his attorney and
that the deputy acted to assist appellant in placing a phone call. Appellant provides no
authority to support his contention that two minutes is an inadequ ate amount of time for a
driver to select an attorney of his own choosing, and, i n fact, approximately six minutes
had elapsed from the deputy’s first reading of the advisory. Moreover, after speaking to
an attorney for 13 to 14 minutes, appellant did not ask for more time to consult with another
attorney or indicate his dissatisfaction with the attorney he spoke with. We conclude that,
under the totality of the circumstances, the deputy vindicated appellant’s limited right to
counsel to the extent that appellant received a reasonable amount of time and means to
contact an attorney.
III. Appellant forfeited his argument that t he district court erred in denying his
motion for amended findings, conclusions of law, and order.

Appellant asserts that the district court erred in denying his motion for amended
findings, conclusions of law, and order because it construed his motion as a motion to
reconsider and declined to address the merits . “Assignment of error based on mere
assertion and not supported by argument or authority i s waived unless prejudicial error is
obvious on mere inspection.” State v. Ouellette, 740 N.W.2d 355, 361 (Minn. App. 2007)

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(quotation omitted), review denied (Minn. Dec. 19, 2007). As respondent correctly points
out, appellant failed to provide any authority or argument in support of his assertion of
error in his principal brief to this court . In his reply brief, appellant attempted to support
his assertion, but he failed to address whether he had already forfeited the initial argument.
A party’s “reply brief must be confined to new matter raised in the brief of the respondent.”
Minn. R. Civ. App. P. 128.02, subd. 3. The new matter raised in respondent’s brief is
whether appellant forfeited his initial argument; it is not an opening for appellant to
resurrect a previously forfeited argument.
Moreover, the district court found that appellant acknowledged at the motion
hearing that his motion was essentially a motion to reconsider. Appellant did not contest
this finding or enter a transcript of the hea ring into the appellate record . Based on the
available record, prejudicial error is not obvious on mere inspection. Therefore, because
appellant did not adequately support his argument in his principal brief and prejudicial
error is not obvious on mere i nspection, we conclude that appellant has forfeited the
argument.
Affirmed.