This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1998).
STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Troy Allen Graupmann,
Filed October 31, 2000
Scott County District Court
File No. 9908497
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Thomas John Harbinson, Scott County Attorney, Thomas W. Haines, Assistant County Attorney, 200 Fourth Avenue West, Shakopee, MN 55379 (for appellant)
Carolyn Agin Schmidt, The Colonnade, Suite 1025, 5500 Wayzata Boulevard, Minneapolis, MN 55379 (for respondent)
Considered and decided by Toussaint, Chief Judge, Schumacher, Judge, and Huspeni, Judge.
U N P U B L I S H E D O P I N I O N
In this pretrial appeal, the state argues that the trial court erred in suppressing the results of respondent’s blood alcohol concentration test and in dismissing the charge of gross misdemeanor DWI. Because we conclude that the trial court did not err either in finding no probable cause for the arrest or in determining that when the state elects to take a blood alcohol concentration test and revokes a driver’s license they must follow statutory protections, we affirm.
On April 23, 1999, a single-car rollover accident with personal injuries was reported shortly after midnight in Scott County. A sheriff’s deputy arrived on the scene soon after the accident and observed a man later identified as respondent Troy A. Graupmann lying in the ditch about 30 feet from a vehicle. Graupmann stated he was the driver of the vehicle. The deputy detected the odor of alcohol on Graupmann’s breath, and asked Graupmann if he had been drinking that evening. Graupmann acknowledged that he had. No field sobriety tests were performed. The deputy administered oxygen to Graupmann until the paramedics arrived and transported him to a hospital. He was not placed under arrest.
The deputy requested that a state trooper be dispatched to the hospital to read the implied consent advisory to Graupmann and to take a blood or urine sample from him. The trooper met with Graupmann, who was conscious and alert. A blood sample was taken from Graupmann by hospital staff; the blood alcohol concentration was .16. However, the trooper did not read the implied consent advisory to Graupmann.
Graupmann subsequently was arrested and charged with gross misdemeanor driving while under the influence and with failure to provide proof of insurance. As a result of the arrest, Graupmann’s driver’s license was revoked. On November 5, 1999, approximately six months after the revocation, an error in revoking was recognized by the state and Graupmann’s driving privileges were reinstated.
No testimony was taken at the omnibus hearing; the parties stipulated to the arresting deputy’s police report and to some of the facts, including that: (1) the implied consent advisory was not read to Graupmann before his blood was drawn; (2) this is not a criminal vehicular operations case; (3) Graupmann was conscious and alert in answering the deputy’s questions; and (4) Graupmann’s driver’s license was revoked as a result of the .16 reading. The trial court concluded that the deputy did not have probable cause to believe that Graupmann was driving a motor vehicle while under the influence of alcohol and that the trooper failed to follow the implied consent statute by not reading the implied consent advisory to Graupmann. In a memorandum accompanying an order suppressing the blood alcohol concentration results and dismissing the charge against Graupmann, the trial court noted:
The Officer smelled alcohol on [Graupmann’s] breath and [Graupmann] admitted to drinking. However, those facts alone are not enough to form a reasonable belief that [Graupmann] was under the influence of alcohol. These facts might be sufficient to invoke the Implied Consent Statute and request a test but then implied consent procedures must be followed. Here [Graupmann] lost his license under the Implied Consent Law even though all concede the correct procedures were not followed. * * * [W]hen the State elects to take a test and use it to take driving privileges away, they must follow statutory procedures.
This appeal followed.
[W]hen reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court’s decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether, the evidence need be suppressed.
State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992) (citation omitted).
2. Critical Impact
If the state appeals a pretrial suppression order in a criminal prosecution, it
must clearly and unequivocally show both that the trial court’s order will have a “critical impact” on the state’s ability to prosecute the defendant successfully and that the order constituted error.
State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (citing State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995).
Critical impact has been shown not only in those cases where the lack of the suppressed evidence completely destroys the state’s case, but also in those cases where the lack of the suppressed evidence significantly reduces the likelihood of a successful prosecution.
State v. Kim, 398 N.W.2d 544, 551 (Minn. 1987). The trial court dismissed the charges due to the suppression of the blood test and the lack of probable cause. Therefore, the suppressed blood test will have a critical impact on the state’s case.
The state argues that, contrary to the trial court’s conclusion, there were sufficient indicia of intoxication to form a reasonable belief Graupmann was driving under the influence of alcohol. “Probable cause exists when all the facts and circumstances would lead a cautious person to believe that the driver was under the influence [of alcohol].” Davis v. Commissioner of Pub. Safety, 509 N.W.2d 380, 392 (Minn. App. 1993), aff’d, 517 N.W.2d 901 (Minn. 1994). Each case must be decided by its own facts and circumstances without consideration of any formula for reasonableness. State v. Olson, 342 N.W.2d 638, 640 (Minn. App. 1984). We conclude that the trial court was within its discretion in determining that probable cause did not exist.
The state relies on State v. Schauer, 501 N.W.2d 673, 674-75 (Minn. App. 1993), to support its claim that probable cause was present in this case. We believe that Schauer is distinguishable. There, the trial court found probable cause and refused to suppress test results even though the implied consent advisory had not been read. This court affirmed based upon evidence in the record of defendant’s red and watery eyes, the smell of alcohol, and the defendant’s admission to drinking. Id. There are fewer indicia of intoxication in this case. The only objective sign here was the smell of alcohol. While this certainly could be an indication that the driver had been drinking — a fact to which Graupmann admitted — whether it establishes probable cause for DWI is a more difficult question to answer. We are reluctant to second-guess the trial court’s determination that these facts alone are not enough to form a reasonable belief that Graupmann was under the influence of alcohol. As earlier noted, each case must be determined on its own facts; just as in Schauer we affirmed a trial court that determined the indicia of intoxication sufficient to establish probable cause, we affirm here a trial court’s determination that insufficient indicia of intoxication were present.
The state alleges that to the extent the trial court relied upon the mistaken revocation of Graupmann’s driver’s license in suppressing the blood alcohol concentration test results and in dismissing the charge of DWI, that reliance was in error. We disagree, despite our recognition that evidence of chemical testing may be admissible even if the police officer makes no attempt to read the implied consent advisory. Schauer, 501 N.W.2d at 676-77.
Even if we were to assume for the sake of analyzing this issue that, pursuant to Schauer, probable cause to believe that Graupmann was driving under the influence was present, we believe that it was within the discretion of the trial court to cite an independent basis upon which suppression of the blood test results was justified. Graupmann’s driver’s license was revoked despite the fact that the implied consent advisory was not read. A reading is required by statute. Minn. Stat. § 169.123, subd. 2(b) (1998). Here, Graupmann’s license was revoked for six months before the revocation was administratively rescinded. The trial court was of the opinion that “when the State elects to take a [blood] test and use it to take driving privileges away they must follow statutory procedures.” We are reluctant to conclude that it was an abuse of discretion for the trial court to make that observation or to take into consideration the fact that Graupmann had been wrongfully deprived of a driver’s license for a substantial period of time.
The trial court did not err in concluding that there was no probable cause to believe that Graupmann was driving while under the influence of alcohol, nor did it err in suppressing the results of Graupmann’s blood alcohol concentration test and dismissing the charge against him.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.
 The state argues that the revocation was a clerical error, but neither party claims to know what happened and why Graupmann’s license was revoked for six months. There is no dispute that the trooper failed to read Graupmann the implied consent advisory, but subsequently signed it and sent it to the Department of Public Safety for revocation. Unfortunately, Graupmann himself had to request that his license be reinstated before the state administratively rescinded his revocation.