This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).







Michael Eugene Herbert,





State of Minnesota,




Filed July 25, 2000


Shumaker, Judge


Benton County District Court

File No. T699328




John D. Ellenbecker, 803 West St. Germain Street, P.O. Box 1127, St. Cloud, MN 56302-1127 (for appellant)


Mike Hatch, Attorney General, 102 State Capitol, 75 Constitution Avenue, St. Paul, MN 55155-1002; and


Michael S. Jesse, Benton County Attorney, Karl Schmidt, Assistant County Attorney, Courts Facility, P.O. Box 189, Foley, MN 56329 (for respondent)




            Considered and decided by Shumaker, Presiding Judge, Toussaint, Chief Judge, and Schumacher, Judge.


U N P U B L I S H E D   O P I N I O N



            Appellant Michael Eugene Herbert challenges his conviction for underage drinking and driving on the basis of the trial court’s pretrial order, arguing that the trial court erred in failing to suppress the results of a preliminary breath test.  Because the officer had a specific and articulable basis for administering the test, we affirm.


On the evening of February 19, 1999, Officer Martin Juhl stopped a vehicle driven by appellant Michael Eugene Herbert for a broken taillight.  Juhl approached the car and asked for Herbert’s driver’s license, which identified Herbert as under the age of 21.  While speaking with Herbert, Juhl detected a strong odor of alcohol coming from inside the car and observed an open bottle of beer between a passenger’s feet.  He requested all the containers of alcohol in the car and was given two open bottles and two open cans of beer. 

To determine whether the smell of alcohol was coming from Herbert or just the passengers, Officer Juhl had Herbert get out of his car and sit in the back seat of the squad car.  Juhl noticed an odor of alcohol in the squad car which had not been there before Herbert entered.  Herbert admitted consuming alcohol prior to driving, admitted knowing his passengers were drinking alcohol in the car, but denied that any of the containers belonged to him.


Juhl asked Herbert to take a preliminary breath test (PBT) to determine the presence of alcohol.  The test indicated alcohol was present, but Juhl did not feel that Herbert was “under the influence” in violation of DWI laws.  Juhl cited Herbert for underage drinking and driving in violation of Minn. Stat. § 169.1218(a) (1998) and open bottle in violation of Minn. Stat. § 169.122(3) (1998).

Herbert pleaded not guilty.  Prior to trial, he made a motion to suppress the results of the PBT on the ground that Juhl did not have sufficient reason to request a PBT.  The trial court denied the motion.  Herbert was found guilty of both counts.  He appeals the trial court’s denial of his motion to suppress and his underage drinking and driving conviction.


            When reviewing a pretrial suppression decision where the facts are not in dispute, this court determines whether the evidence requires suppression as a matter of law.  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  Questions of law receive de novo review.  State v. Camacho, 561 N.W.2d 160, 170 (Minn. 1997). 

Herbert argues that the court erred in refusing to suppress the results of the PBT because Officer Juhl did not have a specific and articulable basis to administer the test.  Under the implied consent law, a driver may be required to provide a preliminary breath test when an officer has reason to believe, from the manner in which the person is driving, operating, controlling, or acting upon departure from a vehicle, that the driver is under the influence of alcohol.  Minn. Stat. § 169.121, subd. 6(a) (1998).  An officer may request a PBT if he can point to specific, articulable facts that form a basis to believe that a person is or has been driving, operating, or controlling a motor vehicle while under the influence of alcohol.  State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986) (citing State, Dep’t of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981)), review denied (Minn. May 16, 1986).  “An officer need not possess probable cause to believe that a DWI violation has occurred in order to administer a preliminary breath test.”  Vievering, 383 N.W.2d at 730.  An officer’s testimony as to his personal belief that a person is under the influence is not required; his opinion testimony, or lack thereof, is merely evidence to be considered by the trial court in making a determination of whether there was sufficient reason to request a preliminary breath test.  Id.

            Articulable suspicion is an objective standard and is determined from the totality of the circumstances.  Paulson v. Commissioner of Pub. Safety, 384 N.W.2d 244, 246 (Minn. App. 1986).  Many telltale signs of intoxication exist independently or in combination  with others, and all signs need not be exhibited in every case.  Holtz v. Commissioner of Pub. Safety, 340 N.W.2d 363, 365 (Minn. App. 1983).  An officer need only have one objective indication of intoxication to constitute reasonable and probable grounds to believe a person is under the influence.  Id.

            Here, Officer Juhl properly stopped Herbert’s vehicle for a broken taillight.  He observed that Herbert’s driver’s license stated that he was under 21, and he detected a strong odor of alcohol coming from inside the vehicle.  He also observed an open container between the feet of a passenger.  To determine whether the odor of alcohol was coming from Herbert or only the passengers, he requested that Herbert sit in the back seat of his squad car.  There, he observed an odor of alcohol coming from Herbert.  Herbert also admitted to drinking alcohol prior to driving.  It was only then that Officer Juhl requested the PBT.  These facts form a reasonable basis for Juhl to believe that Herbert was or had been driving a motor vehicle while under the influence of alcohol.  Juhl had sufficient reason to request the PBT. 

            Herbert also argues that Officer Juhl’s observations merely indicate that he consumed alcohol prior to driving, not that he was intoxicated.  This argument has been previously raised and rejected in other cases.  Vievering, 383 N.W.2d at 730 (citing Rude v. Commissioner of Pub. Safety, 347 N.W.2d 77, 80 (Minn. App. 1984) and Vertina v. Commissioner of Pub. Safety, 356 N.W.2d 412, 413-14 (Minn. App. 1984)).