Michael John Smude, petitioner, Appellant,

This opinion will be unpublished and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
A18-0784

Michael John Smude, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed March 11, 2019
Affirmed
Smith, Tracy M., Judge

Morrison County District Court
File No. 49-CV-18-268

Steven K. Budke, Leverson Budke, P.A., Eagan, Minnesota (for appellant)

Keith Ellison, Attorney General, William Young, Assistant Attor ney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Halbr ooks, Presiding Judge; Worke, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Michael John Smude challenges the district court’s d ecision sustaining
the revocation of his driver’s license for refusal to submit to alcohol-concentration testing
under Minnesota’s implied-consent law, Minn. Stat. §§ 169A.50-.53 (2018). Smude argues

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that the district court (1) erred by concluding that his limited right to counsel was vindicated
and (2) clearly erred by finding that he refused testing. We affirm.
FACTS
Following a traffic stop shortly before midnight on February 1 2, 2018, Trooper
Samuel Catlin arrested Smude on suspicion of driving while impaired and transported him
to the Morrison County Jail. The re, Catlin read Smude an implie d consent advisory,
informing him that he was required by law to take an alcohol-concentration test; that refusal
was a crime; that he had a right to contact an attorney before deciding whether to take the
test, but would be required to make a decision within a reasonable period of time, even if
he was unable to contact an attorney; and that unreasonable delay or refusal to decide would
be considered refusal to take the t e s t . S m u d e a s k e d t o c o n t a c t an attorney. Using jail-
supplied phone books and his personal cell phone, Smude made two phone calls. He left a
message during one of the calls but did not speak with an attorney during either call. Catlin
testified that, during the time that Smude was given to contact the attorney, Smude was not
“playing games” or trying to avoid contacting an attorney.
Ten to 15 minutes after the s econd call, and 44 minutes after S mude’s time to call
an attorney began, Catlin told Smude that it was time to decide and asked whether he would
take the test. Smude responded that he wanted to talk to an attorney. Catlin interpreted his
response as refusal to submit to t he test. Smude’s refusal was submitted to respondent
commissioner of public safety, who—as required by statute—revoked Smude’s license to
drive. See Minn. Stat. § 169A.52.

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Smude petitioned the district cour t to rescind the revocation o f his license. The
district court concluded that the process vindicated Smude’s li mited right to an attorney
and that Smude’s conduct amounted to a refusal to submit to an alcohol-concentration test.
The district court sustained the revocation, and Smude appeals.
D E C I S I O N
I. Smude’s limited right to counsel was vindicated.

A driver has a limited right to consult with counsel before dec iding whether to
submit to an alcohol-concentration test. Friedman v. Comm’r of Pub. Safety, 473 N.W.2d
828, 832 (Minn. 1991). 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). When the parties do not dispute the
facts, we 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).
The right to counsel established in Friedman is the right to “a reasonable amount of
time in which to attempt to cons ult with counsel” before decidi ng whether to submit to
testing. State v. Melde, 725 N.W.2d 99, 104 (Minn. 2006). Drivers do not have unlimite d
time to attempt to contact an attorney, an absolute right to ac tually talk to an attorney, or
the right to an attorney at the state’s expense. State v. White , 504 N.W.2d 211, 213-14
(Minn. 1993).
The right to counsel is vindicated if a driver is given a reasonable amount of time to
contact an attorney of the driver’s choosing. See Linde v. Comm’r of Pub. Safety , 586
N.W.2d 807, 809 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999) (explaining that

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the exact method by which a driver is allowed to choose and con tact an attorney is not
important, so long as it does not unduly constrain the driver’s choice of attorney). This
court has declined to define a reasonable time in terms of a sp ecific number of minutes.
Kuhn, 488 N.W.2d at 842. Rather, as we explained in Kuhn, we analyze several factors that
are relevant but neither definite nor exclusive. Id. First is a threshold requirement that the
driver “make a good faith and sincere effort to reach an attorney.” Id. The next factor is the
time of day—attorneys are less lik ely to be quickly available o utside of normal working
hours, particularly in the early morning on a weekday. Id. Finally, the length of time since
the arrest is a factor, because the value of the test decreases as time goes on. Id.; Friedman,
473 N.W.2d at 835 (citing the “evanescent nature” of alcohol concentration as a reason to
limit the amount of time available to contact an attorney). In addition, as we explained in
Parsons v. Comm’r of Pub. Safety —released the same day as Kuhn—we consider other
relevant factors, such as access to a telephone, freedom to use the telephone as the driver
wishes, length of access to telephone, use of the telephone dur ing that period, and the
driver’s understanding that the time to contact an attorney is limited. 488 N.W.2d 500, 502
(Minn. App. 1992).
Smude makes two main arguments for why the process failed to vindicate his right
to an attorney. First, he argues that he was making a good-fait h attempt to contact an
attorney, so his opportunity should not have been cut off. Second, he argues that 44 minutes
was not a reasonable amount of time in his case.
As to Smude’s first argument, a driver’s reasonable time to contact an attorney does
not continue indefinitely simply because the driver is acting i n good faith. See Kuhn, 488

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N.W.2d at 842 (stating that good faith is a “threshold matter”). Rather, even assuming that
Smude was acting in good faith, we must consider the remaining factors from Kuhn and
Parsons to address Smude’s second argume nt—whether he was given reasonable time to
contact an attorney.
The first Kuhn factor—after the threshold matter of good faith—is the time of day
that a driver is attempting to contact counsel. Kuhn, 488 N.W.2d at 842. Because it was
early in the morning, contacting an attorney would take longer, so Smude was entitled to
more time than if he had been arrested during normal working ho urs. See id. (stating that
more time must be given when the driver is trying to contact an attorney at 2 a.m. because
most attorneys would not be available at that time). But, in Umphlett v. Comm’r of Pub.
Safety, a driver was given 37 minutes to contact an attorney, starting at 8:50 p.m., and that
time was held to be sufficient, even though it was also outside many attorneys’ working
hours. 533 N.W.2d 636, 639 (Minn. App. 1995), review denied (Minn. Aug. 30, 1995).
Similarly, in Parsons, it was reasonable to allow a driver 40 minutes, starting at 1:39 a.m.
488 N.W.2d at 502. Thus, the early hour here does not make the 44-minute time period
unreasonably short.
The next Kuhn factor is the amount of time the driver has been under arrest when
the officer ends attorney-contact time and requests testing. 48 8 N.W.2d at 842. In Kuhn,
where we concluded the driver’s r ight to counsel was not vindic ated, the length of time
was one hour; here, the officer ended Smude’s attorney-contact time an hour and a half
after Smude was stopped. See id. Though that is only 30 minutes longer, it meant that only
30 minutes remained to conduct testing within two hours of the time of driving. See Minn.

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Stat. § 169A.20, subd. 1 (2018) (criminalizing driving a motor vehicle if the driver’s
“alcohol concentration . . . as measured within two hours of . . . driving” is at least 0.08).
Preserving 30 minutes to perform t he test is not unreasonable, given that Smude had
already had 44 minutes to contact an attorney.
Application of the Parsons factors likewise supports the conclusion that Smude was
given a reasonable opportunity to contact an attorney. Smude ha d access to the phone for
44 minutes, and he could use it as he wished. See Parsons, 488 N.W.2d at 502 (considering
access to telephone, length of acc ess to phone, and freedom to use telephone as driver
wishes). He only called two peop le and did not continue calling when he failed to reach
anyone. See id. (considering driver’s use of phone). And Smude was also told t hat he had
to make the decision within a reasonable period of time. See id. (considering driver’s
understanding that attorney-contact time is limited).
Smude argues that the 44 minutes was too short because he used the restroom and
spent some of his time chatting with Trooper Catlin. Though using the restroom occupied
some of his time, the record show s that he spent a significant portion of his 44 minutes
waiting for a return call. Smude does not argue that he would h ave made additional calls
in an attempt to contact an atto rney if he had not used the res troom. Similarly, Smude’s
decision to talk with Trooper Catlin during his time to contact an attorney does not entitle
him to more time. The record contains no hint that Smude tried to place additional calls but
was prevented from doing so by his conversation with Catlin, an d Smude again does not
make such an argument. Thus, ne ither Smude’s restroom use nor h is conversation with
Catlin entitled him to more time to contact an attorney.

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In sum, even if Smude was acting in good faith, in light of the other relevant factors,
Smude was given a reasonable opportunity to contact an attorney and his limited right to
counsel was vindicated. See Umphlett, 533 N.W.2d at 639 (holdi ng that driver’s limited
right to counsel is vindicated when driver has a fair amount of time to contact attorney but
makes only two phone calls); Eveslage v. Comm’r of Pub. Safety , 353 N.W.2d 623, 627
(Minn. App. 1984) (holding that the right to counsel was vindic ated when the driver was
unable to contact the attorney that he wanted to and declined t o try to contact any other
attorney).
But Smude raises two additional objections to the district court’s conclusion. First,
he points out that the district court asked only one question of Catlin—namely, how much
time Smude had to contact an attorney. Smude argues that the district court therefore must
have based its decision solely o n the time allowed, apparently contending that this was
error because Kuhn rejected a bright-line time-based rule. See Kuhn, 488 N.W.2d at 842
(“[B]asing the ‘reasonable’ time criteria on a specific number of elapsed minutes alone is
improper.”). But the district court was not responsible for que stioning witnesses; relevant
testimony was primarily elicited by counsel. And the district c ourt, in its findings of fact,
pointed out that Smude had made only two phone calls in 44 minu tes and apparently had
one lawyer in mind that he wanted to contact. The court’s findi ngs indicate that it
considered more than just the length of time that Smude had access to a phone.
Second, Smude claims that his right was not vindicated because he was not given a
warning before his opportunity to contact an attorney ended. Smude neither explains why
such a warning would have improved his access to counsel nor cites any relevant caselaw

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requiring such a warning. A claim made without analysis or cita tion to legal authority is
waived. Fannie Mae v. Heather Apartments Ltd., 811 N.W.2d 596, 600 n.2 (Minn. 2012).
Because Smude was given a reasona ble amount of time in which to consult with
counsel before deciding whether to submit to testing, the distr ict court did not err in
concluding that his limited right to counsel was vindicated.
II. The district court did not plainly err in finding that Smud e refused to submit
to an alcohol-concentration test.

Whether a driver has refused to submit to testing is a question of fact that this court
reviews for clear error. See Linde, 586 N.W.2d at 810 (treating refusal as a question of
fact). For a factual finding to be clearly erroneous, the revie wing court must be “left with
the definite and firm conviction t h a t a m i s t a k e h a s b e e n m a d e . ” State v. Roberts , 876
N.W.2d 863, 868 (Minn. 2016) (quotation omitted).
Express verbal refusal to submit to an alcohol-concentration test is not necessary to
support a finding that the test was refused. State, Dep’t of Highways v. Lauseng , 183
N.W.2d 926, 926-27 (Minn. 1971) (failure to produce urine sample constitutes test refusal);
State v. Ferrier, 792 N.W.2d 98, 102-03 (Minn. App. 2010) (same), review denied (Minn.
Mar. 15, 2011); State v. Hagen , 529 N.W.2d 712, 714 (Minn . App. 1995) (silence in
response to officer’s question as to whether the driver would t ake a blood test or a urine
test constituted refusal). In Linde, a driver was told that it was time to make an uncounseled
decision, and he replied, “Not until I talk to my lawyer.” 586 N.W.2d at 808. This court
held that, simply by asking the driver whether he would take the test, the officer effectively

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informed the driver that his atto rney-contact time had expired and he would be charged
with test refusal if he did not submit to testing. Id. at 810.
The same is true here: when Catlin asked Smude, after 44 minutes of time to contact
an attorney, whether he would now submit to testing, Catlin ade quately notified Smude
that his opportunity to talk to an attorney was over and that not submitting to a test would
constitute test refusal. See id. Nonetheless, Smude responded that he wanted to talk to an
attorney. The district court did not clearly err in finding that Smude’s response was a refusal
to submit to testing.
Affirmed.