                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2012).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A14-0858

                                   State of Minnesota,
                                      Respondent,

                                           vs.

                                Joseph John Wasche, III,
                                       Appellant.

                                Filed December 15, 2014
                                       Affirmed
                                    Klaphake, Judge*

                             Otter Tail County District Court
                                  File No. 56CR11816

Lori Swanson, Attorney General, St. Paul, Minnesota; and

David J. Hauser, Otter Tail County Attorney, Heather L. Brandborg, Assistant County
Attorney, Fergus Falls, Minnesota (for respondent)

Adam T. Johnson, Meshbesher & Associates, P.A., Minneapolis, Minnesota (for
appellant)

         Considered and decided by Smith, Presiding Judge; Reyes, Judge; and Klaphake,

Judge.




*
 Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.
                         UNPUBLISHED OPINION

KLAPHAKE, Judge

       Appellant Joseph John Wasche, III, challenges the district court’s order denying

his motion to suppress the results of his breath test, arguing that his right to counsel was

not vindicated and he did not validly consent to the breath test. Because we conclude that

law enforcement provided appellant with a reasonable time to reach an attorney and

appellant validly consented to the breath test, we affirm.

                                     DECISION

Right to Counsel

       “The question of whether a person has been allowed a reasonable time to consult

with an attorney is a mixed question of law and fact.” Parsons v. Comm’r of Pub. Safety,

488 N.W.2d 500, 501 (Minn. App. 1992). Once the facts are established, whether a

person was accorded a reasonable opportunity to consult with counsel is a legal

determination, reviewed de novo. State v. Collins, 655 N.W.2d 652, 656 (Minn. App.

2003), review denied (Minn. March 26, 2003).

       On April 2, 2011, an Otter Tail County Sheriff’s Department deputy arrested

appellant for driving while impaired (DWI) in violation of Minn. Stat. §§ 169A.20,

subds. 1(1), 1(5) (2010). The deputy read the implied-consent advisory and appellant

indicated he wished to consult with an attorney before deciding whether to submit to a

breath test. At 11:08 p.m., the deputy provided appellant with two phone books, the

office phone, and appellant’s personal cell phone. Appellant used his cell phone to call

his girlfriend, and then made a second call and spoke to his parents and brother.


                                             2
Appellant eventually obtained a phone number for an attorney, called the number, but did

not leave a message. Then, appellant placed his cell phone in his belt holder and told the

deputy, “I don’t know. Nobody has office hours this late I guess.” At 11:26 p.m., more

than 17 minutes from the start, the deputy noted that appellant had “discontinued use of

the phone.” The deputy asked appellant whether he would consent to take a breath test,

and appellant repeatedly asked whether he could take a blood test instead. Eventually,

appellant agreed to submit to a breath test.

       The Minnesota Constitution provides DWI arrestees with a limited right to consult

with an attorney before deciding whether to submit to a breath test. Minn. Const. art 1,

§ 6; Kuhn v. Comm’r of Pub. Safety, 488 N.W.2d 838, 840 (Minn. App. 1992), review

denied (Minn. Oct. 20, 1992). The right is vindicated if authorities provide the arrestee

with access to a telephone and reasonable time to contact and talk to an attorney.

Friedman v. Comm’r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991). To determine

whether a person was afforded a reasonable time to reach an attorney, courts consider:

(1) whether the person made a “good faith and sincere effort” to reach counsel; (2) how

the time of day affects the availability of attorneys; and (3) how the time elapsed since

the driver was placed under arrest would affect the driver’s blood alcohol content. Kuhn,

488 N.W.2d at 842.

       Appellant argues that the deputy did not provide him enough time to reach an

attorney and arbitrarily cut off his telephone time. We disagree. After more than 17

minutes, appellant stopped trying to contact an attorney, changed the subject by asking

for a blood test, and “ended his diligent exercise of his right.” Mell v. Comm’r of Pub.


                                               3
Safety, 757 N.W.2d 702, 713 (Minn. App. 2008) (holding driver’s right to counsel was

vindicated after driver was provided with about three minutes to contact an attorney but

changed the subject and walked away from the phone). We conclude that appellant

ended his effort to reach the attorney when he placed his cell phone in his belt and

changed the subject by making repeated requests to have a blood test.

Consent to Breath Test

       The question of whether consent to a search was voluntary is a question of fact

reviewed under the clearly-erroneous standard of review. State v. Diede, 795 N.W.2d

836, 846 (Minn. 2011). “Findings of fact are clearly erroneous if, on the entire evidence,

we are left with the definite and firm conviction that a mistake occurred.” State v.

Andersen, 784 N.W.2d 320, 334 (Minn. 2010).

       After ending appellant’s telephone time, the deputy asked appellant whether he

would consent to a breath test.     Appellant did not answer, and instead repeatedly

requested a blood test. The deputy asked appellant several times whether he would

consent to a breath test, and then said, “I’ll ask you one more time and then if you don’t

answer me, I’m gonna consider it a no.” At that point, appellant indicated he would take

the breath test.

       The United States and Minnesota constitutions prohibit unreasonable searches and

seizures. U.S. Const. amend. IV; see also Minn. Const. art. I, § 10. A test of a person’s

breath constitutes a search for purposes of the Fourth Amendment. Skinner v. Railway

Labor Execs.’ Ass’n, 489 U.S. 602, 616-17, 109 S. Ct. 1402, 1413 (1989); State v.

Netland, 762 N.W.2d 202, 212 (Minn. 2009), abrogated in part by Missouri v. McNeely,


                                            4
133 S. Ct. 1552 (2013), as recognized in State v. Brooks, 838 N.W.2d 563, 567 (Minn.

2013), cert. denied, 134 S. Ct. 1799 (2014). As a general rule, a search requires either a

warrant or an exception to the warrant requirement, such as the person’s consent or the

existence of exigent circumstances. McNeely, 133 S. Ct. at 1558; Brooks, 838 N.W.2d at

568. The exigency created by the dissipation of alcohol in a suspect’s body is not a per

se exception to the warrant requirement. McNeely, 133 S. Ct. at 1568. But the consent of

the person whose breath is tested is an exception to the warrant requirement, in which a

police officer is not required to obtain a warrant. Brooks, 838 N.W.2d at 568. “For a

search to fall under the consent exception, the State must show by a preponderance of the

evidence that the defendant freely and voluntarily consented.” Id.    The supreme court

held in Brooks, “Whether consent is voluntary is determined by examining the totality of

the circumstances.” Id. (quotation omitted). The relevant circumstances include “‘the

nature of the encounter, the kind of person the defendant is, and what was said and how it

was said.’” Id. at 569 (quoting State v. Dezso, 512 N.W.2d 877, 880 (Minn. 1994)).

When considering the nature of the encounter, a court should ask how the police came to

suspect the driver was under the influence, whether police read the driver the implied-

consent advisory, and whether the driver had an opportunity to consult with an attorney.

Id.

       A law enforcement officer may direct an arrestee to provide a breath test, and is

not obligated to provide an alternative test. Minn. Stat. § 169.A.51, subd. 3 (2010).

       Appellant argues that the district court erred by denying his motion to suppress the

results of the breath test because he did not validly consent when the deputy repeatedly


                                             5
requested he submit a breath sample. We disagree. The deputy told appellant he could

decline to take a breath test by stating that refusal to answer his question would be

considered a “no.” As Brooks provides, “the fact that someone submits to the search

after being told that he or she can say no to the search supports a finding of

voluntariness.”       Brooks, 838 N.W.2d at 572.   Taken together, the totality of the

circumstances do not indicate that appellant’s “will had been overborne and his capacity

for self-determination critically impaired.” Brooks, 838 N.W.2d at 568. Rather, the

totality of the circumstances indicates that appellant knew he had a choice to refuse. We

conclude the district court did not err by finding that appellant validly consented to

submit a breath test.

          Because law enforcement provided appellant with a reasonable time to consult

with an attorney and because appellant validly consented to submit a breath test, we

affirm.

          Affirmed.




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