This opinion will be unpublished and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

C1-00-1128

 

Alan Loren Anderson,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed March 13, 2001

Affirmed

Kalitowski, Judge

 

Meeker County District Court

File No. C899882

 

Douglas V. Hazelton, 600 South Highway 169, Suite 817, Minneapolis, MN 55426 (for appellant)

 

Mike Hatch, Attorney General, Joel A. Watne, Assistant Attorney General, 500 Capitol Office Building, 525 Park Street, St. Paul, MN 55103-2106 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge, Schumacher, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N

KALITOWSKI, Judge

Appellant, whose driver’s license privileges are conditioned on total abstinence from alcohol, challenges the district court’s decision refusing to apply the exclusionary rule to a hearing regarding whether his license should be canceled because he is inimical to public safety.  We affirm.

D E C I S I O N

Whether the exclusionary rule should be applied in an inimical-to-public-safety hearing is a purely legal question, which this court reviews de novo.  Cf. State v. Nelson, 608 N.W.2d 913, 915 (Minn. App. 2000) (“A reviewing court is not bound by and need not give deference to a trial court’s decision on a purely legal issue.”) (citation omitted).

The district court concluded that although the court in appellant’s implied consent case suppressed the evidence of appellant’s alcohol use because it was obtained from an improper stop, the exclusionary rule did not apply in the hearing regarding whether appellant’s license should be canceled because he violated his total abstinence condition. 

The district court’s decision is consistent with our decision in Ascher v. Commissioner of Pub. Safety, 527 N.W.2d 122, 123-24 (Minn. App. 1995), review denied (Minn. Mar. 21, 1995).  In Ascher we held:

Where a licensee whose driver’s license is conditional on total abstinence from alcohol is found to have consumed alcohol, the license may be cancelled and denied on the grounds that the licensee is inimical to public safety even if the evidence of alcohol consumption would not be admissible in an implied consent proceeding. 

 

Id. at 123-24.  We reasoned that applying the exclusionary rule to this type of public safety hearing “would not deter future unlawful police conduct to any significant degree.”  Id. at 126 (finding that application of the exclusionary rule in the criminal and implied consent proceedings was sufficient to deter future police misconduct). 

Appellant contends Ascher is not applicable here because the officers who stopped Ascher were acting in accordance with state and federal law that had previously upheld checkpoints while his stop was unconstitutional and therefore application of the exclusionary rule is necessary to prevent further police abuse.  We disagree.  The officer who initiated the stop observed appellant’s car weaving within the lane, crossing over the fog line and back to the centerline.  Erratic driving may be sufficient to support a stop.  State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980) (finding that a police stop was lawful where vehicle was weaving within its lane and proceeding at slow speed).  Therefore, we cannot say the decision to stop appellant constituted police misconduct.

Moreover, an additional rationale for not applying the exclusionary rule in Ascher was the court’s conclusion that a driver with a total abstinence restriction has the same standing as a probationer and the exclusionary rule does not apply in probation revocation hearings.  Ascher, 527 N.W.2d at 126; see e.g., State v. Martin, 595 N.W.2d 214, 219 (Minn. App. 1999) (holding that once evidence has been excluded from a criminal case, application of the exclusionary rule in a probation revocation hearing provides only minimal deterrence, and this minimal deterrent effect is outweighed by the need for probative evidence in the probation system), review denied (Minn. Aug. 25, 1999).  This court concluded that reinstating Ascher’s license “although he is known to have consumed alcohol, would interfere with the public interest of keeping intoxicated drivers off the road” and would not “deter unlawful police conduct.”  Ascher, 527 N.W.2d at 126.  Likewise, because appellant had a total abstinence provision forbidding him to drink, and it is known that he consumed alcohol, the public interest of keeping the roads free of intoxicated drivers outweighs the minimal police deterrence obtained from excluding his blood test in the hearing to review the commissioner’s determination to cancel his license for violation of the abstinence condition.   

Finally, appellant argues that if the exclusionary rule is never applied in these types of hearings, officers could act arbitrarily towards persons with total abstinence provisions, without the fear of suppression.  But the record here indicates the officer who stopped appellant was unaware that appellant’s license was conditioned on total abstinence.  See Martin, 595 N.W.2d at 219 (holding that the exclusionary rule did not apply in a probation revocation hearing because the officer was unaware of defendant’s probation status).  We conclude that on these facts the Fourth Amendment does not require suppression of evidence of appellant’s blood test in an inimical-to-public-safety hearing.

            Affirmed.