State of Minnesota, Respondent,

This opinion will be unpublished and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
A19-1486

State of Minnesota,
Respondent,

vs.

Nicholas Oliver Ekelund,
Appellant.

Filed June 8, 2020
Affirmed
Rodenberg, Judge

Hubbard County District Court
File No. 29-CR-18-764

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Jonathan D. Frieden, Hubbard County Attorney, Park Rapids, Minnesota (for respondent)

Luke T. Heck, Drew J. Hushka, Vogel Law Firm, Fargo, North Dakota (for appellant)

Considered and decided by Connolly, Presiding Judge; Larkin, Judge; and
Rodenberg, Judge.
U N P U B L I S H E D O P I N I O N
RODENBERG, Judge
In this direct appeal from his convic tion for driving while impaired (DWI) and
carrying a pistol while under th e influence of alcohol, appellant Nicholas Ekelund argues
that the district court erred in denying his motion to suppress breath-test evidence because

2
law enforcement failed to vindicate his limited right to counsel, and that law enforcement’s
reading of two breath-test advisories violated appellant’s procedural-due-process rights.
We affirm.
FACTS
On June 16, 2018, at 1:17 a.m., a Hubbar d County police officer conducted a routine
traffic stop after having observed a motor ve hicle cross lane lines . The police officer
identified the driver of the vehicle as appella nt. While investigating appellant for DWI,
the officer discovered in the vehicle two unsec ured and loaded firearms and a half-empty
can of beer. After appellant failed a field sobriety test, the officer determined that appellant
was under the influence of alcohol and arrested him. Appellant was then transported to the
Beltrami County Jail in preparation for the implied-consent process.
At approximately 2:23 a.m., the officer r ead appellant the implied-consent advisory,
which appellant stated he unde rstood. Appellant invoked his right to contact an attorney
before deciding whether to submit to a brea th test. Appellant was provided with a
telephone and telephone directories at 2:24 a.m. Appellant looked through the directories
for several minutes and placed three telephone calls, but was unable to contact an attorney.
Appellant then asked for his personal cell phone, explaining to the officer that he wanted
to speak with a nonattorney friend who could put him in contact with an attorney. The
officer declined to give appellant his personal cell phone at that time. Appellant returned
to the directories and placed five more unanswered telephone calls.
At 2:33 a.m., the officer gave appellant’s cell phone to him. Appellant used it to
send a text message to a friend in an attempt to facilitate contact with an attorney. When

3
he did not receive an immediat e response, appellant stated th at it “might take a second”
because “it’s kind of late at night.” Appellant made two more calls on his cell phone, both
of which went unanswered.
Eventually, appellant was able to complete a cell-phone call with a friend who
indicated that he could provide appellant with the telephone number of an attorney.
Appellant ended that call at 2:44 a.m. and made no further calls using either his cell phone
or the telephone provided by police. At 2:50 a.m., the officer asked whether appellant had
received the attorney’s phone number, and appellant stated, “[y]ep, I’m getting the
number,” but specified that he was waiting for his friend to call him back
While appellant was waiting for his friend to call, the officer read appellant the
firearms breath-test advisory. Appellant stated that he understood the advisory. Appellant
made no phone calls after he was read the fi rearms breath-test advisory despite having
access to both his own cell phone and the police telephone.
At 2:57 a.m., the officer informed appella nt that his time to contact an attorney
would end at 3:00 a.m. Appellant continued to sit passively—despite the ready availability
of two different phones—and made no add itional calls and sent no additional text
messages. The officer declared appellant’s attorney time at an end just after 3:00 a.m. and
asked appellant if he would take a breath test. Appellant agreed to take the test. The test
revealed a 0.22 alcohol concentration.
The state charged appellant with two counts of DWI, two counts of carrying a pistol
while under the influence of alcohol, and posse ssing an open bottle of alcohol in a motor
vehicle. Appellant moved to suppress the resu lt of the breath test, and the district court

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denied the motion. The district court concl uded that appellant’s “limited right to counsel
was vindicated because he had ceased to make good faith efforts to contact an attorney at
the time law enforcement requested that [appellant] submit to a chemical test.”
Appellant entered into a st ipulation under Minn. R. Crim P. 26.01, subd. 4, and the
district court found appellant guilty of both counts of driving while impaired, both counts
of carrying a pistol while under the influence of alcohol, and possessing an open bottle.
This appeal followed.
D E C I S I O N
The record supports the district court’s determination that appellant’s right to
counsel was vindicated.

Appellant argues that his right to counse l was violated when the officer ended his
attorney time and required appellant to decide whether to provide a breath sample without
the advice of counsel just after 3:00 a.m. “T he 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 review the district court’s
factual findings for clear error. Hartung v. Comm’r of Pub. Safety, 634 N.W.2d 735, 737
(Minn. App. 2001), review denied (Minn. Dec. 11, 2001). Appellate courts review
questions of law de novo. Axelberg v. Comm’r of Pub. Safety, 831 N.W.2d 682, 684 (Minn.
App. 2013), aff’d, 848 N.W.2d 206 (Minn. 2014).
“[T]he Minnesota Constitution gives a motorist a limited right to consult an attorney
before deciding whether to submit to chemical testing for blood alcohol.” State v.
McMurray, 860 N.W.2d 686, 692 (Minn. 2015). This limited right “cannot unreasonably

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delay the administration of the test.” Minn. Stat. § 169A.51, subd. 2(4) (2016). The state
vindicates this right when it provides the driv er with a telephone before testing and gives
the driver a “reasonable time to contact and talk with counsel. If counsel cannot be
contacted with a reasonable time, the person may be required to make a decision regarding
testing in the absence of counsel.” Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828,
835 (Minn. 1991) (quotation omitted).
“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. Rather, cour ts consider the totality of the
circumstances in determining whether the st ate provided a reasonable amount of time to
consult an attorney. Groe v. Comm’r of Pub. Safety , 615 N.W.2d 837, 841 (Minn. App.
2000), review denied (Minn. Sept. 13, 2000). Factor s considered by a reviewing court
include: the efforts made by the driver balanced against th e efforts made by the officer;
the time of day; and the length of delay since the driver’s arrest. Mell, 757 N.W.2d at 713.
Police officers are required to “assist in the vindication of the right to counsel.” Mulvaney
v. Comm’r of Pub. Safety, 509 N.W.2d 179, 181 (Minn. App. 1993). But an officer need
not allow an arrestee “unfettered use of a te lephone to call friends or relatives, unless the
driver specifies that the reason for the calls is to contact an attorney.” McNaughton v.
Comm’r of Pub. Safety, 536 N.W.2d 912, 915 (Minn. App. 1995).
A DWI arrestee must make a “good-faith and sincere effort” to contact an attorney
with the time afforded him. Mell, 757 N.W.2d at 713. If the driver is not making a good-
faith effort to contact an a ttorney, police need no t afford additional time to contact an
attorney. Id.

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The district court found as a fact that appellant had ceased making a good-faith
effort to contact an attorney by the time the officer ended ap pellant’s time to contact an
attorney. Therefore, it concluded, his right to consult with counsel was not violated.
Appellant argues on appeal that he did not cease his good-faith effort to contact an attorney
and that police did not allow him a reasonable amount of time to contact an attorney. The
state argues that the officer provided appellant a reasonable amount of time to contact an
attorney and that, regardless of the length of time granted him, appellant failed to make a
good-faith and sincere effort to contact an attorney.
The officer informed appella nt that he had a right to contact an attorney and
provided appellant with a telephone and telep hone directories. Appellant looked through
the directories and made several phone calls. When police provided appellant with his own
personal cell phone, he made se veral additional calls and sent several text messages.
Appellant was, for a time, making a good-faith e ffort to reach an attorney. However, the
district court found as a fact that appellant later “ceased to make good faith efforts to
contact an attorney.”1 The record supports this finding. Specifically, the recording of the
implied-consent process shows appellant standing around, drinking water, and waiting for
his friend to return his call. When the officer notified appellant at 2:57 a.m. that his attorney

1 This determination that appella nt ceased his good-faith effort s to contact an attorney is
located in what the district court styled as its conclusions of law. However, we are not
bound by the characterization a judicial statement as a “finding of fact” or as a “conclusion
of law.” Dailey v. Chermak , 709 N.W.2d 626, 631 (Minn. App. 2006), review denied
(Minn. May 16, 2006). Instead, the nature of the statement determines its status. The
judicial statement that appellant “ceased to make good faith efforts” is a finding of fact.

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time would end at 3:00 a.m., appellant conti nued to sit passively and made no additional
attempts to contact an attorney or anyone else.
We conclude that the record adequately su pports the district court’s finding that the
officer vindicated appellant’s right to couns el by providing appellant with a telephone,
appellant’s own personal cell phone, telephone directories, and a reasonable amount of
time to make contact with an attorney. The record also amply supports the district court’s
finding that appellant ended his good-faith e ffort to contact an a ttorney by the time the
officer required appellant to decide whether to take the breath test. We therefore affirm
the district court’s determination that appellant’s limited right to counsel was vindicated.
The district court did not err in determin ing that law enforcement’s reading of two
breath-test advisories did not deny appellant procedural due process.

Appellant argues that “[w]hile requesting a single breath test, [law enforcement]’s
competing test advisories to [appellant] were misleading so as to deny [appellant] due
process.”
Although not cited by appellant, this issu e involves application of the Minnesota
Supreme Court’s decision in McDonnell v. Comm’r of Pub. Safety, 473 N.W.2d 848 (Minn.
1991). Under McDonnell, a driver’s due process rights may be violated when a police
officer affirmatively misleads the driver as to his rights and conseque nces of his testing
decision. Id. at 854-55. However, in Johnson v. Comm’r of Pub. Safety, 911 N.W.2d 506,
508-09 (Minn. 2018), the supreme court clarif ied the requirements for a successful due-
process challenge under McDonnell. In Johnson, the supreme court held that a license
revocation may violate due process when “(1) the person whose license was revoked

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submitted to a breath, blood, or urine test; (2) the person prejudicially relied on the implied
consent advisory in deciding to undergo testing; and (3) the implied consent advisory did
not accurately inform the person of the lega l consequences of refusing to submit to the
testing.” 911 N.W.2d 508-09. Although Johnson involved only revocation of the driver’s
license to drive and did not involve loss of a pe rmit to carry a firearm, the driver in that
case and appellant in this one both alleged a due-process violation. Id. at 507. The three-
part test applied in Johnson therefore guides our analysis by implication, because both
cases involve the same claimed constitutional violation. Id. at 508-09.
In this case, appellant submitted to a breath test, thereby satisfying the first Johnson
element. See id. But appellant cannot possibly establish the second or third Johnson
elements on this record. Concerning the second element, the driver in Johnson did not
prejudicially rely on the im plied consent advisory, and the supreme court therefore
determined that the driver’s right to due process was not violated. Id. The record here
contains no evidence of prejud icial reliance. Appellant did not testify at his contested
omnibus hearing. And he pro duced no evidence of any so rt at the hearing that he
prejudicially relied on any conf usion that might have resu lted from the two slightly
different advisories, each of which stated that Minnesota law required appellant’s consent
to the requested breath test. Appellant agrees that the standard advisories were properly
read. Appellant asked no questions, indicated no confusion, and expre ssly stated that he
understood both advisories before he readily agreed to supply one breath sample for both
purposes. There is absolutely nothing in the record to reveal any confusion or prejudicial
reliance on the differences between the two advisories.

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Additionally, the record is devoid of any evidence concerning the third Johnson
element. Appellant’s counsel at oral argu ment agreed that both the implied consent
advisory and firearms consent advisory were properly read to appellant. Each accurately
informed appellant of the legal consequences of declining to provide a breath sample. The
fact that there were different consequences as between appe llant’s driving privileges and
his permit to carry a firearm as a result of a ppellant’s being impaired by alcohol does not
satisfy the third element of Johnson.
In sum, the district court did not err in determining that appellant’s right to counsel
was vindicated. And appellant was not denied procedural due process as a result of the
police officer having read appellant two breath-test advisories—one concerning appellant’s
driving privileges and the other concerning his permit to carry a firearm.
Affirmed.