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Wetzel v. North Dakota Department of Transportation2/15/2001
the point that Wetzel was denied a reasonable opportunity to contact an attorney.
IV.
[ ] Having concluded Wetzel was afforded a reasonable time to contact an attorney and the environment in which he was allowed to try to contact an attorney was not inherently unreasonable, we discuss the remaining factors relevant to our totality of the circumstances analysis.
[ ] First, Wetzel had ample opportunity to cure his refusal to take the test by consenting to testing. In Houn, 2000 ND 131, 9, 613 N.W.2d 29, we stated:
An arrestee who refuses to submit to a chemical test may cure that refusal by consenting to a test within a reasonable time after the prior refusal if the subsequent test would still be accurate, testing equipment or facilities are still available, the subject has been in police custody and under observation for the whole time since arrest, and the subsequent test will result in no substantial inconvenience or expense to law enforcement.
The record is devoid of any evidence suggesting Wetzel tried to contact an attorney from jail, renewed his request to contact an attorney, or subsequently consented to a test.
[ ] Further, the record is also silent regarding how long it would have taken to administer a chemical test if Wetzel had consented either initially or by curing his refusal. Cf. Houn, 2000 ND 131, 3, 613 N.W.2d 29 (discussing the hearing officer's factual findings regarding the amount of time necessary to administer alternative types of testing under ideal situations). This fact is important because part of the totality of the circumstances is the length of time needed to administer the test. Clearly this fact has an impact on the determination of whether a reasonable opportunity to contact an attorney was afforded.
[ ] On this record, we cannot say Wetzel was not provided a reasonable opportunity to contact an attorney.
V.
[ ] Wetzel's limited statutory right to contact an attorney was not denied. We reverse the district court's judgment and reinstate the Department's revocation of Wetzel's driver's license.
[ ]William A. Neumann
Mary Muehlen Maring
Carol Ronning Kapsner
Dale V. Sandstrom
Gerald W. VandeWalle, C.J.
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