This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
Thomas Edwin Ohlson,
Commissioner of Public Safety,
Filed December 26, 2000
Washington County District Court
File No. C6-99-6250
Kenneth J. Jacobs, Westline Center, Suite 201, 1007 Broadway West, Forest Lake, MN 55025 (for appellant)
Mike Hatch, Attorney General, Peter R. Marker, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106 (for respondent)
Considered and decided by Randall, Presiding Judge, Crippen, Judge, and Kalitowski, Judge.
U N P U B L I S H E D O P I N I O N
Appellant seeks review of the district court's order sustaining his driver's license revocation pursuant to Minn. Stat. § 169.123 (1998 & Supp. 1999). Appellant argues that he adequately raised the issue of whether he actually drove a motor vehicle and that the district court erred by failing to address the issue. Appellant also contends that the district court erred by concluding that the arresting officer had probable cause to believe appellant was driving the vehicle. We affirm.
On September 25, 1999, Appellant Thomas Ohlson (Ohlson) met his wife, Julie Ohlson (Julie), and a friend, Sally Finch, at a street dance in Scandia, Minnesota. After the dance, they visited other bars in the area. Shortly before the bars closed, an argument ensued among the three of them, and Finch began walking along Highway 61. The sequence of events following this argument is in dispute, but the three ended up at Motomart, a local convenience store. The three were traveling in a Chevrolet Suburban, but the identity of the person driving is in dispute.
Shortly after 1:00 a.m. on September 26, 1999, Officer Jake Ayers (Ayers) received a dispatch call reporting a domestic disturbance that was taking place in a Chevrolet Suburban in Motomart's parking lot. Ayers responded and proceeded to investigate. Ayers observed a female standing 20 to 30 yards from the vehicle and a male in the passenger's seat. Ayers began to question the female, later identified as Julie. Ayers determined that the passenger in the vehicle was Ohlson. Julie told Ayers that there was no domestic dispute and that her husband was under a lot of stress. Ayers also questioned Ohlson. It became apparent to Ayers that Ohlson had been drinking. Ohlson indicated that he was intoxicated, but he stated that he had not driven the vehicle after he began drinking because Julie was the designated driver.
Sergeant Aschenbrener arrived at Motomart shortly after Ayers did. Sergeant Aschenbrener began to question Finch. Finch told him that she and Julie began to walk down Highway 61 and that Ohlson was following them in the vehicle to try to persuade them to accept a ride home. At some point along the highway, they got into the vehicle and Julie began to drive. Then another argument began, so Julie pulled into Motomart.
Finch initially told Ayers a different version of these events. She stated that after she and Julie had gotten into the vehicle, Ohlson was still driving. Then the second argument began, and Ohlson stopped the vehicle before they arrived at Motomart. Finch said she and Julie walked the rest of the way to Motomart. When Ayers questioned Finch a second time, she told him a version of the facts similar to what she relayed to Officer Aschenbrener.
After speaking to Finch the second time, Ayers went back to interview Ohlson. Ayers told Ohlson that Finch had said he was driving the vehicle, but Ohlson again denied it. Based on Finch's statement that Ohlson had been driving the vehicle and Ohlson's admission that he was intoxicated, Ayers placed Ohlson under arrest for driving under the influence of alcohol. Ohlson's alcohol concentration was beyond the legal limit, so his license was revoked pursuant to Minn. Stat. § 169.123 (1998 & Supp. 1999).
Ohlson contested his license revocation. At the revocation hearing, the district court found that Finch's statement that Ohlson had been driving the vehicle was credible. The court concluded that, based on the totality of the circumstances, Ayers had sufficient probable cause to believe that Ohlson was driving the vehicle and that he was under the influence of alcohol. The district court's findings of fact and conclusions of law were set out orally on the record, and the judgment sustaining Ohlson's license revocation was filed on February 29, 2000. Ohlson filed a notice of appeal on May 4, 2000.
D E C I S I O N
Generally, this court may consider only those issues presented to and addressed by the district court. Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988). This limitation applies to review of implied consent proceedings. Weierke v. Commissioner of Pub. Safety, 578 N.W.2d 815, 816 (Minn. App. 1998).
Here, Ohlson argues that he raised the issue of whether he was actually driving his vehicle at the beginning of the revocation hearing when his attorney stated:
Your Honor, the issue is whether or not there was probable cause to believe that [Ohlson] was driving the vehicle that evening, and as an ancillary issue, whether or not the accompanying arrest of [Ohlson] was lawful.
The district court replied, "So are we talking about an articulable basis to stop the vehicle or whether he was the driver?" Ohlson's attorney responded, "Whether he was the driver."
But, during closing arguments, the commissioner's attorney stated:
Your Honor, I think at least at the outset we need to be on the same page with what our burden is on the issues here. We have not been asked to prove that Mr. Ohlson actually drove the vehicle that night or was actually in physical control of that vehicle. We have been asked to prove that the officer had probable cause to believe that Mr. Ohlson drove the vehicle. That is a big difference.
Further, before the district court made its findings on the record, it stated:
At the outset of the proceeding I always make it a practice, I hope, sometimes I forget, to make sure that both sides know the issue that's being presented, and in this instance I asked what the issues are from [Ohlson's attorney], and he said whether or not there is probable cause to believe that Mr. Ohlson was driving the vehicle and * * * therefore whether or not the arrest was lawful.
We understand Olson's argument, but at no time did Ohlson object to the commissioner's attorney's statement about the issue presented at the hearing. Also, after the district court issued its findings of fact and conclusions of law on the record, Ohlson failed to object or to question the district court's perception of the issue. We find that the issue was not adequately raised and was not addressed by the district court. Thus, we conclude that the issue is waived on appeal.
Ohlson argues that the facts were insufficient for the district court to conclude that Officer Ayers had probable cause to invoke the implied consent law. A determination of whether probable cause existed is a mixed question of fact and law. Clow v. Commissioner of Pub. Safety, 362 N.W.2d 360, 363 (Minn. App. 1985). Findings of fact will be upheld on appeal unless they are clearly erroneous. State v. Kvam, 336 N.W.2d 525, 529 (Minn. 1983). Conclusions of law will be overturned when there is a showing that the district court has erroneously construed and applied the law. Dehn v. Commissioner of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986). After the facts are determined, this court must make a legal determination as to whether probable cause existed. Clow, 362 N.W.2d at 363.
A police officer may require an alcohol concentration test from a driver when the officer makes a probable cause determination that the person was driving, operating, or in physical control of a motor vehicle in violation of Minn. Stat. § 169.121 in addition to one of the following conditions:
(1) the person has been lawfully placed under arrest for violation of [§ 169.121], or an ordinance in conformity with it;
(2) the person has been involved in a motor vehicle accident or collision resulting in property damage, personal injury, or death;
(3) the person has refused to take the screening test provided for by [§ 169.121, subd. 6]; or
(4) the screening test was administered and indicated an alcohol concentration of 0.10 or more.
Minn. Stat. § 169.123, subd. 2(a) (1998). A reviewing court considers whether the police officer "had a substantial basis for concluding that probable cause existed at the time of invoking the implied consent law." State v. Olson, 342 N.W.2d 638, 641 (Minn. App. 1984) (citation omitted). "Probable cause exists where all the facts and circumstances would warrant a cautious person to believe that the suspect was driving or operating a vehicle while under the influence." Johnson v. Commissioner of Pub. Safety, 366 N.W.2d 347, 350 (Minn. App. 1985) (citations omitted). But an officer does not have to observe the driver actually driving, operating, or in physical control of the vehicle in order to have probable cause. Pan v. Commissioner of Pub. Safety, 347 N.W.2d 545, 547 (Minn. App. 1984). The Commissioner must prove probable cause by a preponderance of the evidence. Sens v. Commissioner of Pub. Safety, 399 N.W.2d 602, 604 (Minn. App. 1987).
Ohlson argues that Finch's statements to the officers lacked sufficient credibility. Ohlson contends that Finch related conflicting versions of her story to the officers at the scene, and that she was intoxicated that evening, with a blood-alcohol concentration of .146. Ohlson asserts the events could not have occurred the way Finch said that they did due to the short time frame between when Ohlson, Julie, and Finch left the bar and when the officers arrived at Motomart. Ohlson argues that, because Finch's statements were not credible, the court erred by concluding probable cause existed for Officer Ayers to invoke the implied consent law.
Appellate courts give deference to the fact-finder's determination of witness credibility. State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), aff'd, 508 U.S. 366, 113 S. Ct. 2130 (1993). The district court found that Finch "had sufficient credibility as determined by" Officer Ayers. Finch stated that an argument had taken place earlier in the evening, that Finch and Julie had begun to walk home on the highway, and that Ohlson had followed them in the vehicle. Finch gave the officers specific details about the events of the evening that further evidenced her credibility. See Schlemme v. Commissioner of Pub. Safety, 363 N.W.2d 781, 784 (Minn. App. 1985) (recognizing reliable information from one witness is enough for officer to establish probable cause). Although Finch offered varying versions of her story to Ayers at the scene, Ayers was in the best position to evaluate Finch's credibility. See Olson, 342 N.W.2d at 640-41 (recognizing reviewing court should pay great deference to officer's determination of probable cause).
In addition, Ayers spoke to Ohlson, who admitted that he was intoxicated that evening but denied that he had been driving. Although Julie also told Ayers that Ohlson had not been driving, Ayers believed she was being evasive. See Kvam, 336 N.W.2d at 528 (observing trained officer may make inferences and deductions that might elude untrained person).
Based on the totality of the circumstances, which includes Finch's statement along with Ohlson's admission that he was intoxicated, we affirm the district court's conclusion that the Commissioner proved by a preponderance of the evidence that Ayers had probable cause to invoke the implied-consent law. See Eggersgluss v. Commissioner of Pub. Safety, 393 N.W.2d 183, 185 (Minn. 1986) (observing reviewing court must consider the totality of the circumstances when determining probable cause).
 The record indicates that Finch’s story regarding the distance she and Julie walked, as well as the direction they walked, may have changed from the time of Aschenbrener’s interview to her testimony at trial.