                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-1505

                                    State of Minnesota,
                                       Respondent,

                                            vs.

                                 Elizabeth Ellen Hartneck,
                                        Appellant.

                                    Filed June 6, 2016
                                        Affirmed
                                       Ross, Judge

                              Hennepin County District Court
                                File No. 27-CR-13-27038


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

Michael O. Freeman, Hennepin County Attorney, Elizabeth R. Johnston, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Rory P. Durkin, Mark G. Giancola, Jonathan D. McGrath, Giancola-Durkin, P.A., Anoka
Minnesota (for appellant)


         Considered and decided by Reyes, Presiding Judge; Ross, Judge; and Smith, Tracy,

Judge.
                         UNPUBLISHED OPINION

ROSS, Judge

       Elizabeth Hartneck submitted to a breath test after police arrested her for drunk

driving, and she was convicted based on the test results. Hartneck challenges the district

court’s reliance on those results because, she argues, the testing officers failed to vindicate

her limited right to counsel by not helping her reach a lawyer after she was asked to submit

to the test. The record reveals instead that the officers’ effort to assist the extremely

intoxicated Hartneck was exemplary. We affirm.

                                           FACTS

       A caller told Plymouth police that a woman had pulled her pickup truck to the side

of the roadway at Ham Lake Road and Highway 55 and was lying beside her truck in the

ditch. By the time Officer Joe Gebhardt arrived, the dispatcher informed him that the

woman had gotten back into the truck and driven away westbound. Officer Gebhardt

caught up to the pickup in Medina still on Highway 55. He saw it swerving within its lane

and driving on the center line. He pulled the truck over and met the driver, Elizabeth

Hartneck.

       The officer quickly perceived that Hartneck was barely coherent. She made no eye

contact with him, did not directly answer his questions, and was wearing no pants. When

he asked for her driver’s license, Hartneck handed him a credit card. He asked again, and

she handed him a piece of paper. She finally produced a clipped license.

       Hennepin County Deputy Sheriff Sheri Bukkila arrived to assist, as did Medina

Police Officer Thomas Gregory. Deputy Bukkila covered Hartneck’s partially naked body


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with a blanket and helped her out of her pickup. The deputy noticed that Hartneck smelled

of an alcoholic beverage. Officer Gregory arrested Hartneck for suspected drunk driving

and asked Deputy Bukkila to take her to the Medina police station.

       Officer Gregory sat Hartneck on a bench at the station, but he warned that she must

stay seated or he would handcuff her. The officer administered field sobriety tests.

Hartneck could not follow his instructions for the horizontal gaze nystagmus test. He asked

her to recite the alphabet starting at B and ending at Y. Hartneck offered only a few letters

before she began mumbling.

       A female officer helped Hartneck to use the bathroom, and after Hartneck returned

to the testing room, she tried to leave through a closed door. The officers redirected her to

her seat. Hartneck would not remain seated, however, repeatedly standing up and being

told to sit back down.

       Officer Gregory asked if Hartneck would take a breath test, and Hartneck asked to

speak to an attorney. Officer Gregory gave Hartneck several telephone directories and her

cellular telephone. Hartneck began looking through a phonebook and apparently through

the contacts on her phone, but she said she needed reading glasses. Hartneck stood again

(this was the thirteenth time) and an officer told her to sit down. She demanded glasses and

stood up, reaching over the desk and insisting that Officer Gregory was keeping glasses in

the drawer. Officer Gregory handcuffed Hartneck to the bench.

       Officer Gregory told Hartneck that he would open phonebooks and she could look

for an attorney, whose number the officer would dial for her. He asked if she had any

particular attorney in mind. Hartneck offered a name. He attempted to work with Hartneck


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to find the attorney’s number in her phone. He questioned her about the attorney’s last

name and location. The officers found the attorney’s number and dialed it at Hartneck’s

request.

       Officer Gregory asked if Hartneck wanted to keep the phone on speaker or to hold

the phone on her shoulder. Hartneck said she didn’t know. The phone remained on speaker

and reached the attorney’s voicemail. Hartneck would not leave a coherent message, so

Officer Gregory left a message for her, stating that Hartneck was in custody for drunk

driving, that she was looking for advice, and that the attorney should call the police station

for Hartneck. Officer Gregory asked if Hartneck would like to call anyone else or wait to

see if the attorney would call back. Hartneck said she wanted to wait.

       A few minutes passed and Hartneck asked to see the phonebooks again. Officer

Gregory presented the directories and asked which one she wanted. Hartneck said she

wanted to call the same attorney again, and the officer dialed the attorney’s office, reaching

an office directory. The officer dialed the attorney’s cellular number and again reached

voicemail. When the message toned, Hartneck said only, “Please call me back.” The officer

finished Hartneck’s message for her, restating the police station’s phone number and

explaining that Hartneck was trying to reach the attorney for advice.

       After 42 minutes trying to help Hartneck reach an attorney, Officer Gregory ended

the effort and asked Hartneck to consent to a breath test. She did, providing a breath sample

that was triple the per se limit of intoxication with an alcohol concentration of 0.24.

       The state charged Hartneck with first-degree driving while impaired. She moved to

suppress the test results, arguing that her right to counsel was not vindicated. The district


                                              4
court denied her motion. Hartneck and the state submitted the case to the district court on

stipulated facts, and the district court found her guilty.

       Hartneck appeals.

                                       DECISION

       The only question presented in Hartneck’s appeal is whether the officers vindicated

her right to counsel after asking her to submit to a breath test. She had only a limited right

to counsel afforded under the Minnesota Constitution. See Friedman v. Comm’r of Pub.

Safety, 473 N.W.2d 828, 833 (Minn. 1991). Because the facts here are not substantially

disputed, we answer the question de novo based on the totality of the circumstances. Mell

v. Comm’r of Pub. Safety, 757 N.W.2d 702, 712 (Minn. App. 2008). We look both to the

officer’s duties in vindicating the right to counsel and the arrested driver’s diligence in

exercising the right. Kuhn v. Comm’r of Pub. Safety, 488 N.W.2d 838, 842 (Minn. App.

1992), review denied (Minn. Oct. 20, 1992).

       Hartneck asserts that it was unreasonable for the officers to cuff her hands to the

bench, which effectively prevented her from physically paging through the phonebooks.

Except in extraordinary circumstances, a driver should be allowed to personally use the

phone when attempting to reach an attorney. Mulvaney v. Comm’r of Pub. Safety, 509

N.W.2d 179, 181 (Minn. App. 1993). These were extraordinary circumstances. Hartneck

was obviously extremely impaired. And she was not verbally controllable. Officer Gregory

told Hartneck to remain seated and warned that she would be handcuffed if she stood, and

then he patiently waited until after she had stood 14 times and tried to access the contents

of his desk before he finally cuffed her to the chair. Hartneck argues that less restrictive


                                               5
means should have been used, either cuffing only one hand or having the officers physically

keep her in the seat. But our decision does not turn on whether the officers might have

chosen some other means to keep Hartneck seated but on whether they sufficiently

vindicated her right to counsel. Handcuffed or not, Hartneck was given plenty of help to

reach a lawyer. We add that not only is neither of Hartneck’s suggestions constitutionally

required, neither seems especially prudent. Cuffing only one hand would not likely prevent

a noncompliant arrestee from standing, and using physical force would require ongoing

personal contact between the arrestee and officers, escalating the tension and risking injury.

       We are satisfied that the officers made substantial efforts to vindicate Hartneck’s

right to counsel. They attempted to overcome each apparent obstacle to Hartneck’s

opportunity to reach an attorney. They even left two messages to allay Hartneck’s

incoherence. The officers did not act unconstitutionally.

       Affirmed.




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