This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2000).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-00-1161

 

State of Minnesota,
Respondent,

v.

LeeAnn Susan Stone,
Appellant.

 

Filed February 27, 2001

Affirmed
Peterson, Judge

 

Lac Qui Parle County District Court

File No. T200206

 

John M. Tollefson, Lac Qui Parle County Attorney, P.O. Box 269, Dawson, MN  56232 (for respondent)

 

Ronald R. Frauenshuh, Jr., 129 N.W. Second Street, Ortonville, MN  56278 (for appellant)

 

            Considered and decided by Stoneburner, Presiding Judge, Lansing, Judge, and Peterson, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from a conviction of misdemeanor driving under the influence of alcohol (DWI), appellant LeAnn Susan Stone argues that the trial court erred in denying her motion for judgment of acquittal, a new trial, or to set aside the verdict based on a lack of probable cause for an arrest and breath test.  We affirm.

FACTS

            On February 13, 2000, at approximately 2:00 a.m., Deputy Sheriff Ken Schule stopped Stone’s vehicle for speeding.  Schule noticed an odor of alcohol on Stone’s breath, and Stone admitted having a few drinks earlier.  Schule directed Stone to get out of her vehicle.  He noticed that Stone’s walking was swayed, her eyes were slightly bloodshot, her face was flushed, and her speech was slurred.  Based on these observations, he asked Stone to perform field sobriety tests.  She responded, “Ah, Ken, I won’t pass the test,” and “I’ll be honest with you Ken, I won’t pass them.”  Schule did not administer a preliminary breath test.

            Schule arrested Stone and transported her to jail.  Stone agreed to submit to a breath test, which showed an alcohol concentration of .12.

            Stone was charged with driving under the influence, and a jury found her guilty.  Stone moved for a judgment of acquittal, a new trial, or to set aside the verdict based on her claim that Schule lacked probable cause to believe she was under the influence of alcohol and, therefore, was not authorized to administer the breath test.  The trial court denied Stone’s motion. 

D E C I S I O N

An officer can lawfully arrest a person for DWI when the officer has probable cause to believe the person was driving a motor vehicle while under the influence of alcohol.  State v. Olson, 342 N.W.2d 638, 640 (Minn. App. 1984).  Probable cause to believe a person was driving under the influence

exists when facts and circumstances are known to the officer that would warrant a prudent person in the officer’s position to conclude the person was violating the DWI statute.

 

Holm v. Commissioner of Pub. Safety, 416 N.W.2d 473, 475 (Minn. App. 1987) (citing State v. Harris, 295 Minn. 38, 42, 202 N.W.2d 878, 881 (1972)).

            In evaluating probable cause, “each case must be decided on its own facts,” and a reviewing court should accord “an officer’s probable cause determination ‘great deference.’”  Id. (quoting Olson, 342 N.W.2d at 640-41).

The reviewing court must ensure that the officer had a substantial basis for concluding that probable cause existed at the time the implied consent law was invoked.

 

Id. (citing Olson, 342 N.W.2d at 641).  Common indicia of intoxication include an odor of alcohol, admission of drinking, flushed face, watery, bloodshot, red or glassy eyes, slurred speech, staggered or swaying walk, balance problems, methodical movements, and involvement in an accident or erratic driving.  See, e.g., Costillo v. Commissioner of Pub. Safety, 416 N.W.2d 730, 733 (Minn. 1987).

            Stone argues that the state failed to present sufficient evidence to support the trial court’s finding that Schule had probable cause to believe she was under the influence of alcohol.  Stone cites the absence of evidence that she failed any field sobriety tests.  But field sobriety tests are not required to support an officer’s probable cause determination that a driver is intoxicated.  Holtz v. Commissioner of Pub. Safety, 340 N.W.2d 363, 365 (Minn. App. 1983).  Stone also cites Schule’s failure to administer a preliminary breath test.  But a preliminary breath test is not required before administering a chemical test when “the officer ascertains from his own observations that the driver is under the influence of alcohol.”  Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 700 (Minn. 1980).

            Schule saw Stone’s vehicle speeding.  Upon stopping the vehicle, he detected an odor of alcohol on Stone’s breath, and Stone admitted to having a few drinks earlier that evening.  Schule noticed Stone’s swayed walk, slurred speech, flushed face, and slightly bloodshot eyes.  Based on these observations, Schule asked Stone to perform field sobriety tests, and Stone told Schule that she could not pass the tests.  This evidence gave Schule a substantial basis for concluding that Stone was driving under the influence of alcohol.

            Affirmed.