This opinion will be unpublished and may not be cited except as provided by Minn . Stat. § 480A.08, subd. 3 (201 4 ). 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

.2 U N P U B L I S H E D O P I N I O N ROSS , Judge Elizabeth Hartneck submitted to a breath test after police ar rested 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 officer s failed to vindicate her limited right to counsel by not helping her reach a lawyer after s he 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 tr uck to the side of the roadway at Ham Lake Road and Highway 55 and was lying beside he r 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 pul led the truck over and m et the driver, E lizabeth 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 l icense, Hartneck handed him a credit card. He asked again, and she handed him a piece of paper. She finally produc ed a clipped license. Hennepin County Deputy Sheriff Sheri Bukkila arrived to assist, as did Medina Police Officer Thomas Gregory . Deputy Buk kila covered Hartneck’s partially naked body3

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 o fficer administered field sobriety tests. Hartneck could not follow his instructions for the h o rizontal 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 help ed Hartneck to use the bathroom, and after Hartneck returned to the testing room, she tried to leave through a closed door . The officers redir ect ed her to her seat

. Hartneck would not remain seated, however, repeatedly standing up and being
t old to sit back down. Officer Gregory asked if Hartneck would tak e a breath test , and Hartneck asked to speak to an attorney

. Officer Gregory gave Hartneck several telephone directories an d her cell ular tele phone. Hartneck began looking through a phonebook and apparently through the contacts on her phone, but she said s he needed r eading glasses. Hartneck stood again (this was the thirteenth time ) and an officer told her to sit down. She demand ed glasses and stood up , reach ing over the desk and insisting that Officer Gregory was keeping glasses in
the drawer . Officer Greg ory handcuffed Hartneck to the bench. Officer Gregory told Hartneck that he wo uld 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 Hartneck4

to find the attorney’s number in her phone . He question ed her about the attorney’s la st name and location . T he officers found the attorney’s number and dialed it at Hartneck’s request

. Officer Gregory asked if Hartneck w anted to keep the phone on speaker or to hold the phone on her shoulder

. Hartneck sai d she did n’t know. The phone remained on speaker and reached the attorney’s voicemail. Hartneck w ould not leave a coherent message, so Officer Gregory left a message for her, s tating that Hartneck was in custody for drunk driving, that she was looking for advice, and that t he attorney should call the police station for Hartneck. O fficer 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 Ha rtneck asked to see the phonebooks again . Officer Gregory presented the directories and asked which one s he wanted

. Hartneck said she wanted to call the same attorney again, and the o fficer dialed t he attorney’s office , reaching an office directory. The officer dialed the attorne y’s cell ular number and agai n reached voicemail. When the message tone d , Hartneck said only , “Please call me back

. ” The officer finished Hartneck’s message for her, restating the police station’s phone number and explain ing that Hartneck was trying to reac h 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 tripl e the per se limit of intoxication wit h an alcohol concentration of 0 .24. The state charged Hartneck with first

- degree driving while impaired. She moved to
suppress the test result s, arguing that her right to counsel was not vindicated

. The district5

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.
Ha rtneck appeals. D E C I S I O N The only question presented in Hartneck’s appeal is whether the officers vindicated her right to counsel after as king her to submit to a breath test. She had only a lim ited 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 answe r 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 t he officer’s duties in vindicating the right to counsel and the arrested d river’s diligence in exercis ing th e 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 officer s to cuff her hands to the bench, which effectively prevent ed her from physi cally 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 unti l 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 restrictive6

means should have bee n used, either cuffing only one hand or having the officers physical ly keep he r 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 n either of Hartneck’s suggestion s 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 o ngoing personal contact between the arrestee and officers , escalating the tension and risk ing injury

. We are satisfied that t he officers made substantial effort s to vindicate Hartneck’s right to counsel. They attempted to overcome each apparent obstacle t o Hartneck’s opportunity to reach an attorney. They even left two messages to allay Hartneck ’s incoherence. The officers did not act unconstitutionally

. Affirmed.