A18-1732

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0698
A18-1732

Kent David Wentzel, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent (A18-0698),

and

State of Minnesota,
Respondent (A18-1732),

vs.

Kent David Wentzel,
Appellant.

Filed July 8, 2019
Reversed and remanded
Smith, Tracy M., Judge

Swift County District Court
File No. 76-CV-17-481, 76-CR-17-455

Daniel M. Mohs, Minneapolis, Minnesota (for appellant)

Keith Ellison, Attorney General, William Young, Assistant Attor ney General, St. Paul,
Minnesota (for respondent Commissioner of Public Safety (A18-0698))

Danielle H. Olson, Swift County Attorney, Benson, Minnesota (fo r respondent State of
Minnesota (A18-1732))

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Considered and decided by Schellhas, Presiding Judge; Smith, T racy M., Judge; and
Cochran, Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
In these consolidated appeals, appellant Kent David Wentzel ch allenges the district
court’s denial of his motion to suppress the result of his alco hol-concentration test in his
driving-while-impaired (DWI) case and denial of his petition to rescind the revocation of
his driver’s license, arguing that the officer who administered the test violated Wentzel’s
right to counsel. We agree. We reverse both cases and remand the license-revocation case
for further proceedings.
FACTS
In October 2017, Deputy Pat Hamme rud responded to a report of a driver asleep on
the road. Hammerud arrived on scene at around 12:57 a.m. and found Wentzel at the wheel
of his car. Wentzel was arrested for driving while impaired and was brought into a room at
the county jail where the breath alcohol-concentration tests are administered. Hammerud
began reading the Minnesota imp lied-consent advisory at 1:28 a. m. When asked if he
wanted to contact an attorney, Wentzel said, “Not at this time.” Hammerud finished reading
the advisory at 1:30 a.m. At that point, Hammerud turned on the DataMaster breath-test
machine (DMT) and began the fifteen-minute observation period, during which the driver
is observed to ensure nothing happens that could interfere with the test results. During the

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observation period, Hammerud prepared paperwork on a computer a nd ran an automated
diagnostic check1 on the DMT.
At around 1:38 a.m., about nine minutes into the observation p eriod, Wentzel asked
if Hammerud knew of any attorneys in the area and if he could l ook at his phone.
Hammerud denied the request. Se veral minutes later, appellant a sked to speak with an
attorney, and Hammerud denied the request. At 1:49 a.m., when W entzel was about to
blow into the DMT, he hiccupped. Hammerud restarted the observation period. During this
observation period, Wentzel made two more requests to speak wit h an attorney, which
Hammerud denied. At 2:08 a.m., Wentzel finally took the test. The test reported an alcohol
concentration of 0.11.
Respondent State of Minnesota c harged Wentzel with DWI in viol ation of Minn.
Stat. § 169A.20, subd. 1(5) (2016), and respondent commissioner of public safety revoked
his driver’s license pursuant to Minn. Stat. §§ 169A.50-.53 (20 18). After a consolidated
hearing, the district court issu ed an order denying Wentzel’s m otion to suppress the test
result in the DWI proceeding and his petition to rescind the li cense revocation, rejecting
his assertion that the test was obtained in violation of his limited right to counsel. Wentzel
and the state agreed that the ri ght-to-counsel issue is disposi t i v e o f t h e D W I c a s e a n d
stipulated to the state’s case, under Minn. R. Crim. P. 26.01, subd. 4, to obtain review of
the denial of the motion to suppress. These consolidated appeals follow.

1 The record suggests that the diagnostic check takes about “a couple minutes.”

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D E C I S I O N
Wentzel argues that the result of his alcohol-concentration te st was obtained in
violation of his right to counsel. Whether a driver’s right to counsel has been vindicated is
a mixed question of law and fact. Hartung v. Comm’r of Pub. Safety, 634 N.W.2d 735, 737
(Minn. App. 2001), review denied (Minn. Dec. 11, 2001). As in this case, when the parties
do not dispute the facts, appellate courts review the district court’s legal determination de
novo. Kuhn v. Comm’r of Pub. Safety , 488 N.W.2d 838, 840 (Minn. App. 1992), review
denied (Minn. Oct. 20, 1992).
A driver has a limited right to consult with counsel before de ciding whether to
submit to an alcohol-concentration test. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d
828, 832 (Minn. 1991); see also State v. Hunn, 911 N.W.2d 816, 817 (Minn. 2018) (stating
that Friedman applies only to implied-consent cases). Although limited, a driver’s right to
counsel has a basis in the Minne sota Constitution; “[t]he driver must be informed of this
right, and the police officers must assist in its vindication.” Umphlett v. Comm’r of Pub.
Safety, 533 N.W.2d 636, 639 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995).
Unless the driver waives his right, he must be “provided with a telephone prior to testing
and given a reasonable amount of time to contact and consult wi th an attorney.” Mell v.
Comm’r of Pub. Safety, 757 N.W.2d 702, 712 (Minn. App. 2008).
Even if the right to counsel is waived, police officers must r ecognize a subsequent
withdrawal of the waiver in certain circumstances. In State v. Slette, this court stated that
“officers should recognize the withdrawal of a DWI arrestee’s initial waiver of the right to
consult with counsel when the ch ange of mind is immediate and d oes not interfere with

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police officers’ processing of a case or their ability to admin ister [a breath] test.” 585
N.W.2d 407, 409 (Minn. App. 1998).
Finding that Wentzel waived his right to counsel when he told the officers, “Not at
this time,” the district court focused on whether the officer h ad to recognize Wentzel’s
subsequent withdrawal. The cour t decided that the officer did n ot have to because
“Wentzel’s change of mind did not occur immediately or within a reasonable time.”
We disagree. Both the district court and the respondents reaso n that Wentzel’s right
to counsel was vindicated in part because his change of mind was not “immediate” under
Slette. But Slette did not hold that the withdrawal of waiver has to be immediate in the
sense that it has to be made instantly. In Slette, the driver initially waived the right to
counsel and changed his mind “[a] few minutes later.” Id. at 408. Slette thus contemplates
that an effective withdrawal w ill sometimes cause a certain amo unt of delay. Id. at 410.
Wentzel changed his mind nine minutes after the waiver, when, as we discuss below, police
still had ample time both to acco mmodate his consultation with counsel and to complete
testing. We conclude that, in the circumstances of this case, Wentzel’s change of mind was
“immediate” under Slette.
Also, Wentzel’s withdrawal of his waiver did not “interfere wi th police officers’
processing of a case or their ability to administer [a breath] test.” Id. at 409. The relevant
factors for analyzing the reasonableness of any time delay are drawn from caselaw
governing whether a driver was given adequate time to consult a n attorney. See id. at 410
(citing Parsons v. Comm’r of Pub. Safety, 488 N.W.2d 500, 502 (Minn. App. 1992)). The
factors include:

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(1) the importance to the driver of the decision to submit to
testing; (2) the purpose of the r ight to counsel, which is to
protect lay persons who lack skill and knowledge to defend
themselves; (3) the driver’s rights, which should not
unreasonably interfere with police ability to gather evanescent
evidence; (4) the legislative intent to coerce drivers into taking
the test; (5) the liberal interpretation of the implied consent law
in favor of the public interest; and (6) the need to return police
to the streets to serve the public.

Id. Because Wentzel was given no attorney time, we need to determine whether giving him
any time would have unreasonably delayed the process based on t he totality of the
circumstances. See Parsons, 488 N.W.2d at 502.
The district court decided that “[a]llowing . . . Wentzel to c ontact an attorney . . .
would have unreasonably delayed administration of the test by requiring . . . Hammerud to
wait until an attorney was contacte d before restarting the obse rvation period and
Datamaster diagnostic checks.” That decision is erroneous. Giving Wentzel some time to
contact an attorney would not have required Hammerud to restart the whole 15-minute
preparation. Some impropriety or irregularity during the observ ation period may require
the breath-test operator to restart the observation period and, if the operator does not restart,
render the test result invalid. Kramer v. Comm’r of Pub. Safety , 706 N.W.2d 231, 237
(Minn. App. 2005). But no authority holds that talking to someo ne qualifies as such
impropriety or irregularity. See id. (“[A] slight interruption of the observation period or a
less than perfect observation does not invalidate the test unle ss the driver has ingested or
regurgitated a substance that affects the results . . . .” (quo tation omitted)). In fact,
Hammerud himself conversed with Wentzel several times during the observation periods,
but Hammerud did not restart the periods based on those convers ations. There was an

7
approximately 30-minute time period between when Wentzel asked for an attorney and
when he took the test. During those 30 minutes, Wentzel was not prohibited from talking,
he was only prohibited from talking to an attorney.
Also, the observation period does not have to be interrupted i n order to ensure the
privacy of an arrestee’s conversation with an attorney. “[P]rop er testing procedures
generally require that the officer remain in the presence of [a DWI] arrestee in order to
impeach any later testimony by an arrestee who submits to testi ng that ingestion of
something at the station might h ave affected the test results.” Comm’r of Pub. Safety v.
Campbell, 494 N.W.2d 268, 270 (Minn. 1992). The officer may remain in t he room even
when the arrestee is talking to an attorney on the telephone. Id. at 269-70 (“[P]olice do not
have to provide a DWI arrestee with a private telephone because the arrestee’s rights will
be sufficiently protected by the subsequent exclusion of any ov erheard statements or any
fruits of those statements.”).
The district court and respon dents do not explain why Hammerud could not let
Wentzel try to contact an attorney while observing Wentzel at the same time. Instead, they
discuss the facts that Hammerud needed to return to the streets and that Wentzel was
familiar with the implied-consent process. But Hammerud would not have returned to the
streets any later by letting Wentzel try to contact an attorney during the observation periods.
And we are not persuaded that Wentzel’s familiarity with the process, no matter how deep
it is, entirely deprives him of attorney time he would otherwise be entitled to. Here, Wentzel
was denied time to contact an attorney that would not have caused an unreasonable delay.
Because Hammerud violated Wentzel’s right to counsel, his breath test results should have

8
been suppressed and his petition to rescind the revocation of his license should have been
granted. We reverse Wentzel’s DW I conviction because the partie s agreed that the
suppression issue is dispositive of the case. We reverse and remand the license-revocation
case for further proceedings consistent with this opinion.
Reversed and remanded.