[¶ 1] Kenneth M. Berger appeals from a criminal judgment and order, based on his guilty plea which reserved his right to
I
[¶ 2] On November 11, 1999, at about 1:00 a.m., a sheriffs deputy observed a vehicle operated by Berger driving with the passenger-side tires approximately two feet over the right fog line. The deputy obtained a radar reading of 39 mph in a 55-mph speed zone. After turning and following the vehicle, the deputy observed Berger weaving three times from the driving lane to two-to-three feet over the fog line. The deputy reported when he stopped the vehicle Berger smelled of alcohol, had glassy and bloodshot eyes, slurred his speech, fumbled for his driver’s license, was unbalanced and unsteady on his feet, refused field sobriety tests because he stated he “wouldn’t pass them anyway,” and then became verbally abusive when the deputy arrested him for driving while under the influence of intoxicating liquor.
[¶ 3] While seated in the back of the patrol car, the deputy read Berger the implied consent advisory, after which Berger asked: “Do I have a right to call a lawyer?” The deputy replied, “You certainly do.... I will give you a phone book. You can call.” Berger named two local attorneys and indicated he would call one, and “[i]f he is not there I will get [the other attorney], but I don’t want to do that.” The deputy also told Berger, “I will give you a reasonable amount of time. It’s about twenty minutes to contact a lawyer. ... I will give you every opportunity to call a lawyer.... You know, I mean that’s fail. I will give you a chance to call whoever you would like.” The officer au-diotaped this conversation.
[¶ 4] After the deputy brought Berger to the Law Enforcement Center, the deputy took Berger to a booking room, where he would have some privacy, and gave him a telephone book and access to a telephone. The deputy left the room for about 10 minutes; when he returned, the deputy testified Berger said he had tried to call a lawyer but was not able to reach one. The deputy testified Berger never mentioned anything about not being able to call long distance. On the other hand, Berger testified he tried to call one local attorney but got an answering machine, then tried another local attorney but “couldn’t get out,” and finally tried to call an attorney in Dickinson but kept getting the operator. Berger testified he told the officer he could not get through on the long-distance call, but the officer allegedly disregarded Berger’s statement and only responded by asking Berger if he would take the Intoxi-lyzer test. An officer testified the phone records at the police station show each phone number when it is dialed. The record indicated Berger only attempted to make one phone call, and it was to a local attorney’s number.
[¶ 5] The deputy administered the In-toxilyzer test to Berger and obtained a .19% result. Berger was charged with driving while under the influence of intoxicating liquor and/or drugs or with blood alcohol content .10% or greater. Subsequently, Berger moved the court to dismiss the charge because he was “denied his constitutional right to counsel at a critical time in this case” when he allegedly could not make a long-distance call to his attorney. The trial court denied the motion, stating: “The prosecution has submitted an affidavit refuting the statement of [Berger].” Berger requested a hearing on his motion to dismiss, which he stated “may be viewed as an alternative motion to suppress.” At the hearing, Berger conceded there was probable cause for the officer to stop Berger’s vehicle, but stated the focus of the inquiry was whether Berger was given a reasonable opportunity to consult with counsel before submitting to a chemical test. At the conclusion of the hearing, the trial court indicated it was “satisfied that Mr. Berger was given the opportunity to contact an attorney.” The
II
[¶ 6] Berger argues he intentionally filed a motion to dismiss the charge because it is “stronger” than a motion to suppress the Intoxilyzer results. Berger contends suppression of the evidence is remedial in nature and designed to change police misconduct, yet in this case it is “not enough.” Berger asserts that the Mandan Police Department and Morton County Sheriffs Department have shared the combined Law Enforcement Center in Mandan for years and have known of the law regarding the right to counsel but have made a decision to disregard that law. For support Berger relies primarily on
City of Mandan v. Jewett,
[¶ 7] At the hearing, the trial court queried Berger’s attorney about the motion to dismiss the charge. The trial judge stated, “I suspect [the motion to dismiss is] in the nature of a motion to suppress, or am I wrong?” Counsel responded that the court’s discretion was not abused by “granting] a motion to dismiss on these facts, however, it may more often be characterized as a motion to suppress.” The trial court pressed further: “So what you are trying to do is suppress the chemical tests on the basis that [Berger] was not given an opportunity to consult with his attorney?” When Berger’s counsel agreed, the trial court clarified: “It’s not a motion to dismiss. You are trying to get rid of a chemical test.” Ultimately, the trial court denied both the motion to dismiss and the motion to suppress.
[¶ 8] Berger insists the motion to dismiss was an appropriate remedy for the failure of law enforcement officers to provide Berger an opportunity to consult with counsel, according to the holdings of
Bickler v. N.D. State Highway Comm’r,
[¶ 9] In
Bickler,
we reversed a district court’s decision that Bickler was not given a reasonable opportunity to consult with his attorney because he was refused a conference in a private setting out of the officer’s view.
[¶ 10] Berger’s reliance on
Jewett,
[¶ 12] To warrant a dismissal of charges, accused persons must show actual prejudice of their right to present a defense and have a fair trial.
City of Fargo v. Stutlien,
[¶ 13] In this case, Berger was not detained for hours before being allowed to contact an attorney, and the officer observed outward signs that Berger was impaired by alcohol, such as Berger driving erratically, smelling of alcohol, slurring his speech, moving unsteadily, and becoming verbally abusive on arrest. Berger admitted to the district court, “We don’t dispute that there was probable cause for a stop.” Thus, notwithstanding the motion to dismiss charges due to an alleged violation of Berger’s right to contact an attorney before deciding whether to submit to alcohol testing, the State was entitled to proceed with the trial.
See Thompson,
Even in the absence of the chemical test [the State] ha[s] a right to proceed with the trial as to the conduct. I would assume either be charged with a DUI and driving with blood alcohol level greater than .1, which are two separate — it’s the same offense but can be proved two different ways.
Even if your motion should succeed, [the State] would still probably have the right to proceed with regard to the driving because certainly whether or not [Berger] had a right to consult -with an attorney doesn’t have anything to do with his driving and whether that would constitute DUI so it’s a motion to suppress the test.
[¶ 14] The trial court appropriately determined a motion to suppress evidence was the proper mechanism to address alleged violations of the right to counsel.
See generally State v. Stewart,
[¶ 15] We conclude Berger’s right to present a defense and to have a fair trial was not actually prejudiced, and dismissal of his charges was not warranted. Berger’s remedy for an alleged infringement of his statutory right to meaningfully consult with counsel before submitting to the Intoxilyzer test was to file a motion to suppress the results of the test, rather than a motion to dismiss the charges.
Ill
[¶ 16] Berger argues he was not afforded a reasonable opportunity to consult with counsel in a meaningful way since the officer gave him a telephone that allegedly would not allow long-distance calls. Berger alleges the officer knew he was a Dickinson resident from his driver’s license, and the officer gave Berger a phone book with Dickinson listings, but then provided a phone that would not allow him to call his attorney in Dickinson. Berger contends the State seems to have a “quiet theme” that he was restricted to making a local call to a local attorney because he had mentioned the name of two local attorneys; however, Berger claims he has a right to contact an attorney of his choice.
[¶ 17] Our jurisprudence regarding consultation with counsel prior to taking an Intoxilyzer test is straightforward. An arrested person who asks to speak with an attorney before taking a chemical test must be given a reasonable opportunity to do so if it does not materially interfere with the test administration.
Kuntz v. State Highway Comm’r,
[¶ 18] Simply put, the linchpin for determining if police have given an accused a meaningful opportunity for contacting an attorney is reasonableness under the circumstances.
Jewett,
[¶ 19] Berger urges that giving an out-of-town defendant a phone book with long-distance listings, but a phone that will not call long distance, is absurd and not a reasonable opportunity to consult with counsel in a meaningful way. Berger insists the police may just as well give the defendant a telephone that is not plugged in or has had the plug yanked from the wall, because the result will be the same.
[¶ 20] We have recognized the practical problems and concerns of law enforcement agencies in accommodating requests by suspects for multiple and long-distance phone calls.
Mayo v. Moore,
[¶ 21] At the preliminary hearing, the police officer acknowledged on cross-examination that although he gave Berger the telephone, he personally did not know whether the phone would allow Berger to call long distance. The officer admitted if Berger had asked how to call long distance, the officer would not have known how to call long distance on that phone. Another officer, who was the assistant administrator of the Morton County jail, testified on cross-examination there were no instructions nearby the telephone indicating proper procedures for calling long distance. The officer stated, “If Mr. Berger wanted to call long distance, it probably would have been dialed by the correctional staff. That’s the proper way of doing it. .... [T]he way I instruct all our staff to do it, is we do the dialing and we hand the phone to the subject that is making the phone call.”
[¶ 22] The trial court did not make any written findings on whether Berger was denied a reasonable opportunity to consult an attorney before deciding whether to take a blood test. However, at the conclusion of the evidentiary hearing, the trial court stated it was “satisfied that Mr. Berger was given the opportunity to contact an attorney,” and the court denied both the motion to suppress and the motion to dismiss.
[¶ 23] After reviewing the record, resolving conflicts in the testimony in favor of affirmance, we hold there is sufficient evidence fairly capable of supporting the trial court’s judgment, which is not contrary to the manifest weight of the evidence.
See State v. Norrid,
IV
[¶ 24] We affirm the trial court’s denial of Berger’s motion to dismiss the charge and motion to suppress evidence of his Intoxilyzer test results.