This opinion is nonprecedential except as provided by
                        Minn. R. Civ. App. P. 136.01, subd. 1(c).

                              STATE OF MINNESOTA
                              IN COURT OF APPEALS
                                    A23-0258

                          Russel Edward Straub, Jr., petitioner,
                                      Appellant,

                                           vs.

                            Commissioner of Public Safety,
                                   Respondent.

                                 Filed January 8, 2024
                                       Affirmed
                                  Segal, Chief Judge


                              Cook County District Court
                               File No. 16-CV-22-155

Jeffrey S. Sheridan, Sheridan, Dulas, Hunstad & Kins, P.A., Eagan, Minnesota (for
appellant)

Keith Ellison, Attorney General, Matthew A. McGuire, Assistant Attorney General,
St. Paul, Minnesota (for respondent)

       Considered and decided by Connolly, Presiding Judge; Segal, Chief Judge; and

Smith, John, Judge. ∗




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                           NONPRECEDENTIAL OPINION

SEGAL, Chief Judge

       Appellant challenges a district court order sustaining the revocation of his driving

privileges based on his refusal to submit to a breath test after being arrested for suspicion

of driving while impaired (DWI). He argues that his right to counsel was not vindicated,

that he timely changed his mind after his initial refusal to submit to a breath test, and that

his due-process rights were violated. We affirm.

                                          FACTS

       On August 20, 2022, at approximately 5:03 p.m., a Cook County sheriff’s deputy

responded to a call from dispatch about an erratic driver. The deputy located and stopped

the driver, appellant Russel Edward Straub, Jr. The deputy smelled alcohol coming from

Straub, saw open alcohol containers in Straub’s car, and performed the standardized field

sobriety tests. Based on these circumstances and Straub’s performance on the sobriety

tests, the deputy arrested Straub on suspicion of DWI.

       The deputy transported Straub to the Cook County jail where he began the implied-

consent process by reading Straub the breath-test advisory at approximately 5:29 p.m.

Straub stated that he understood his rights and wished to consult with an attorney. At

approximately 5:31 p.m., the deputy provided Straub a telephone and two directories—the

“Blue Pages” and the “DUI Directory.” Straub flipped through one of the directories,

called one attorney, left a voicemail for the attorney with a call-back number, and then sat

down. This process took about two minutes. For the next 16 minutes or so, Straub

interacted with his cell phone, asked about his dog who was in the car with him when he


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was stopped, and expressed his frustration at having been arrested. At about 5:50 p.m., the

deputy ended Straub’s attorney time and asked if he would take a breath test. Straub

responded “no.” The deputy began booking Straub into jail for test refusal.

        Approximately nine minutes after Straub refused to take the test, Straub revisited

the topic. Straub asked if he could still take the test. The deputy told him that it was not

too late. Straub asked the deputy if he would be released if he took the breath test and

“bl[e]w clean.” 1 The deputy told Straub that he could submit to the breath test but that,

either way, he would be arrested and held because he had probable cause to believe Straub

was driving under the influence of alcohol. The deputy asked Straub again if he wished to

take the breath test and offered to re-read the breath-test advisory. Again, Straub asked the

deputy if he would be released if he took the test and blew clean. The deputy told him,

“no.” Straub replied, “Well then forget it.” The deputy then continued booking Straub

into jail.

        Respondent Commissioner of Public Safety revoked Straub’s driver’s license based

on his refusal to submit to a breath test. Straub petitioned the district court to review the

revocation. At the review hearing, the commissioner provided testimony from the deputy

and submitted other evidence, including the breath-test advisory and video footage of the

implied-consent process. The deputy testified that he believed the amount of attorney time

was reasonable. He testified that he had probable cause to arrest and hold Straub for driving



1
  Straub’s inquiry followed a brief exchange during which Straub had asked if he would be
released the following morning. The deputy told him that he would likely be held over the
weekend because of a prior conviction on his record.

                                             3
under the influence. He also testified that if Straub had taken the test and blown clean, he

would still have had probable cause to arrest and hold Straub for DWI. The district court

sustained the revocation of Straub’s driving privileges.

                                        DECISION

       Straub argues on appeal that his right to counsel was not vindicated because he was

not provided with adequate phone directories to select an attorney and because the time

allowed to contact an attorney was too short. Straub also argues that he timely changed his

mind about refusing to take the test. Finally, Straub argues that the deputy violated his

due-process rights by allegedly providing misleading information that Straub could be held

in jail even if he submitted to the breath test and “bl[e]w clean.”

I.     Straub’s right to counsel was vindicated.

       A driver arrested for a DWI has a limited right to consult counsel of his choosing

when deciding whether to submit to a breath test. Friedman v. Comm’r of Pub. Safety, 

 (Minn. 1991). To vindicate this right, law enforcement must, at a

minimum, give the driver access to a phone and “a reasonable time to contact and talk with

counsel.” 

 (quotation omitted). A reasonable amount of time “is not a fixed amount of

time, and it cannot be based on elapsed minutes alone.” Mell v. Comm’r of Pub. Safety,

 (Minn. App. 2008) (citing Kuhn v. Comm’r of Pub. Safety, 

 (Minn. App. 1992), rev. denied (Minn. Oct. 20, 1992)). We “must

balance the efforts made by the driver against the efforts made by the officer; . . . [the]

focus is ‘both on the police officer’s duties in vindicating the right to counsel and the

defendant’s diligent exercise of the right.’” 

 (quoting Kuhn, 

).


                                              4
       In considering whether the right to consult counsel has been vindicated, courts are

to consider the totality of the circumstances, such as the time of day, how long the driver

has been under arrest, and whether the driver made a good-faith and sincere effort to contact

counsel. Kuhn, 

. Generally, defendants are allowed to await return

calls, but they are not given an indefinite amount of time to do so. Palme v. Comm’r of

Pub. Safety, 

 (Minn. App. 1995), rev. denied (Minn. Feb. 27, 1996).

If the defendant refuses to contact more than a single attorney or has given up on trying to

contact an attorney, law-enforcement officers need not wait any longer. Kuhn, 

; see also Gergen v. Comm’r of Pub. Safety, 

 (Minn. App.

1996) (determining that driver did not make a good-faith effort to contact an attorney and

officer vindicated driver’s limited right to counsel), rev. denied (Minn. Aug. 6, 1996);

Palme, 

 (determining that 29 minutes was reasonable given defendant’s

inaction).

       Whether a driver’s right to counsel has been vindicated presents a mixed question

of law and fact. Mell, 

. Findings of fact are reviewed for clear error.

 When the facts are not in dispute, this court reviews de novo whether an individual’s

right to counsel was vindicated. 

       A.     Choice of Attorney

       Straub argues that the deputy unreasonably limited his choice of attorneys because

the deputy provided him with only two phone directories—the “Blue Pages” and the “DUI

Directory.” Straub relies on McNaughton v. Commissioner of Public Safety to support his

argument. 

 (Minn. App. 1995). In that case, the driver was given a list of


                                             5
five pre-selected local attorneys. 

. The driver told the officer that he wanted

to call an attorney who was not on the list. 

. The driver did not have access to

telephone books or direct access to the telephone or directory assistance. 

. Under

these circumstances, this court concluded that the driver’s right to consult with counsel of

his choosing was not vindicated. 

       Straub also relies on two nonprecedential opinions of this court, Walsh v. Comm’r

of Pub. Safety, No. C8-02-532, 

 (Minn. App. Nov. 26, 2002), and State

v. Sherman, No. C4-00-1995, 

 (Minn. App. Apr. 10, 2001). 2 In Walsh,

the driver was provided only one directory—the Blue Pages. 

, at *1.

We reversed the driver’s license revocation in that case because the district court based its

findings on evidence not in the record in comparing the Blue Pages to a local telephone

directory. Id. at *3. Consequently, the reversal in Walsh is inapposite.

       In Sherman, the driver had access to only one telephone directory—the Blue

Pages—that listed no more than two criminal/DWI defense attorneys in the county even

though it listed dozens of other such attorneys throughout the state. 

,

at *1. Under these circumstances in which the driver only had the opportunity to select

one of two local attorneys, this court concluded that the driver’s right to consult counsel of

his choosing was not vindicated. Id. at *2.

       While we recognize similarities, we conclude the facts of this case differ from those

in McNaughton and Sherman. For instance, while Straub did not have access to a regular


2
 Nonprecedential opinions may only be cited as persuasive authority. See Minn. R. Civ.
App. P. 136.01, subd. 1(c).

                                              6
telephone book, the record supports that he had direct access to a telephone and at least

two directories—the Blue Pages and the DUI Directory. The record also supports that

Straub only quickly looked at one of the directories, made a single call, and then sat down.

Straub never looked at the second directory or otherwise attempted to contact other

attorneys. As we commented in Kuhn, “refusing to try to contact more than one attorney

or giving up trying to contact an attorney is fundamentally different than making a

continued good-faith effort to reach an attorney.” Kuhn, 

.

       The district court reasoned in its order sustaining the revocation of Straub’s driving

privileges that, in addition to the two directories, Straub had access to a smartphone as can

be seen in the video of the implied-consent advisory process. Straub argues that the record

does not support the district court’s conclusion that Straub’s smartphone access gave him

“the ability to research and contact attorneys” beyond those listed in the directories.

Specifically, Straub asserts that the district court improperly assumed he had “unrestricted

access to the internet” based only on the videos of him interacting with his cell phone. But

even if the district court erred in making such an inference, the remaining evidence supports

that Straub’s right to counsel was vindicated and we thus reject Straub’s arguments to the

contrary.

       B.     Attorney Time

       Straub argues that the deputy unreasonably limited his opportunity to contact an

attorney based on a fixed amount of time. As noted above, we have held that in assessing

whether a reasonable amount of time has been allowed, the time cannot be based just on a

fixed number of “elapsed minutes.” Mell, 

. But here, the deputy’s


                                             7
testimony supports the district court’s finding that the deputy’s decision was not based only

on elapsed minutes. The deputy testified that he believed the amount of time was

reasonable “[i]n this instance,” suggesting that the deputy considered the totality of the

circumstances. Here, Straub left a single voicemail and sat down. As time passed, Straub’s

lack of effort to contact another attorney suggests that he had expended whatever effort he

was willing to expend. In addition, Straub never indicated that the phone directories

provided were inadequate or that he wanted to speak with a specific attorney. And Straub

never asked the deputy for additional time.

       Given these circumstances, the record supports that the deputy satisfied his

minimum duties in vindicating Straub’s right to counsel and that Straub failed to diligently

exercise that right to counsel. Therefore, under the totality of the circumstances presented,

we discern no error in the district court’s determination that Straub’s right to counsel was

vindicated.

II.    The record does not support Straub’s argument that he “timely changed his
       mind.”

       Straub argues that the district court erred by finding that he refused the breath test

because his inquiries to the deputy about submitting to a test, after his initial refusal,

constituted a timely change of mind. The record, however, does not support Straub’s

argument.

       “To determine whether a driver’s failure to provide a sample constitutes refusal, a

court should look to the driver’s words and actions.” Stevens v. Comm’r of Pub. Safety,

 (Minn. App. 2014). “This court has consistently held that a



                                              8
subsequent change of heart does not revoke an initial refusal, even when a relatively short

period of time has elapsed between the initial refusal and the reconsideration except for an

‘almost immediate’ change of mind.” Lewis v. Comm’r of Pub. Safety, 

 (Minn. App. 2007) (quoting Palme, 

) (determining that driver’s

change of mind did not cure his initial refusal when it occurred more than 9 to 11 minutes

after initial refusal); see also Parsons v. Comm’r of Pub. Safety, 

(Minn. App. 1992) (determining that driver’s change of mind did not cure her initial refusal

when it occurred nine minutes after initial refusal); cf. Schultz v. Comm’r of Pub. Safety,

 (Minn. App. 1989) (determining that driver’s change of mind cured his

initial refusal because it was immediate, as the officer only had time to begin writing the

reason for refusal on the implied-consent form before the driver changed his mind).

“[W]hether a driver has refused to submit to chemical testing is a question of fact, to which

this court applies a clear-error standard of review.” Stevens, 

.

       The district court found that Straub’s inquiries did not constitute a change of mind

or willingness to take the breath test. The video footage in the record reveals Straub’s

words and actions support this finding. Straub responded “no” when the deputy initially

offered him the breath test. Straub then asked the deputy whether taking the test and

“blow[ing] clean” would result in his release from jail. The deputy responded that either

way Straub would continue to be held based on probable cause. The deputy then offered

Straub the opportunity to take the breath test a second time. Straub asked again whether

he would be released if he took the test and blew clean. After the deputy told him, “no,”




                                             9
Straub said, “Well then forget it.” The district court’s finding that Straub refused the test

and did not change his mind is fully supported in the record.

III.   Straub’s due-process rights were not violated because the deputy’s statement
       that Straub could be held on probable cause for a DWI even if he “bl[e]w clean”
       on a breath test was not inaccurate or misleading.

       Straub’s final argument is that he reasonably refused to take the breath test because

the deputy provided him inaccurate and misleading information and that this violated his

due-process rights. 3 Minnesota implied-consent law governs the administration of breath,

blood, and urine tests to drivers who are suspected of being under the influence of alcohol

or hazardous or controlled substances. Minn. Stat. §§ 169A.50-.53 (2022); Johnson v.

Comm’r of Pub. Safety, 

 (Minn. 2018). Prior to administering a breath

test, an officer must inform the driver that such a test is required by state law, that refusal

to submit to a breath test is a crime, and that the driver has the right to consult first with an

attorney. Minn. Stat. § 169A.51, subd. 2. This information is known as a breath-test

advisory. Id.

       To establish the affirmative defense of reasonable refusal, the driver must

demonstrate that the reason asserted at the hearing was, in fact, the reason for the refusal

at the time testing was refused. Maietta v. Comm’r of Pub. Safety, 

(Minn. App. 2003). Whether a refusal is reasonable is a question of fact, which we review

for clear error. State, Dep’t of Highways v. Beckey, 

 (Minn. 1971).



3
  Straub also argues that he reasonably refused because his right to counsel was not
vindicated. Based on our conclusion that Straub’s right to counsel was vindicated, we do
not address this argument here.

                                               10
       Here, the parties do not dispute that the deputy read the standard breath-test advisory

to Straub, as required under Minn. Stat. § 169A.51, subd. 2. Straub’s argument focuses

instead on the deputy’s response to Straub’s question whether he would be released if he

“bl[e]w clean” on the breath test. The deputy told Straub that he would still be held based

on the existence of probable cause for a DWI arrest. Straub argues that this was a

misstatement because “probable cause would have vanished entirely in the face of an

objective test showing that [he] had no alcohol in his body” and “there simply would not

have been any legal basis to continue holding him.” We disagree.

       The district court’s finding that the deputy did not improperly mislead Straub is

supported by the record. Based on the evidence, the deputy had probable cause to arrest

Straub on suspicion of DWI based on the report of erratic driving, Straub’s performance

during the field sobriety tests, the smell of alcohol coming from Straub, and the open

alcohol containers found in Straub’s vehicle. Minnesota law provides that, if an officer has

reason to believe an individual committed a prescribed DWI offense, the officer “shall

arrest and take the person into custody.” Minn. Stat. § 169A.40, subd. 3 (2022); see Reeves

v. Comm’r of Pub. Safety, 

 (Minn. App. 2008) (“Probable cause to

arrest a person for DWI exists when the facts and circumstances available at the time of

arrest reasonably warrant a prudent and cautious officer to believe that an individual was

driving while under the influence.”). 4 The deputy also testified that, if Straub had taken

the breath test and blown “all zeros,” he likely would have pursued a search warrant to


4
 Minn. Stat. § 169A.40, subd. 3, was amended during the 2023 legislative session, but the
changes do not affect this analysis.

                                             11
obtain blood or urine samples for testing to determine if Straub was under the influence of

other substances. In addition, even if the breath test registered 0.00 alcohol concentration,

probable cause to arrest a driver for DWI can still exist based on the totality of the

circumstances. See State v. Prax, 

 (Minn. App. 2004), rev. denied

(Minn. Dec. 14, 2004) (concluding that probable cause existed to arrest driver for DWI

even after the driver’s preliminary breath test registered an alcohol concentration of 0.00).

       Finally, the deputy’s knowledge that test refusal would subject Straub to a longer

license revocation does not make his statements improperly misleading. The deputy’s

failure to warn Straub of the potential for license revocation does not violate due process.

Even if Straub had asked the deputy about the potential impact of refusing to test, which

he did not, the only advice that the deputy would have been required to give was included

in the breath-test advisory, which the deputy accurately read and offered to re-read. See

Dehn v. Comm’r of Pub. Safety, 

 (Minn. App. 1986) (concluding that

an officer did not violate due process by “merely responding to a question” when the

answer given by the officer was not “unduly coercive or confusing,” even though the

officer “could have expanded his answer”); State v. Gross, 

 (Minn.

1983) (holding that the breath-test advisory contains all the advice that police are required

to provide).

       The record supports that the deputy gave an accurate advisory and that Straub failed

to show that the deputy’s response was coercive or actively misleading. Because we




                                             12
conclude there was no violation of due process, we affirm the district court’s order

sustaining the revocation of Straub’s driving privileges.

       Affirmed.




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