This opinion will be unpublished and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
John Bartlett McGuire,
Commissioner of Public Safety,
Filed March 20, 2001
Ramsey County District Court
File No. C5002987
Philip Villaume, Philip Villaume & Associates, 5200 Willson Road, Suite 150, Edina, MN 55424 (for appellant)
Mike Hatch, Attorney General, Peter R. Marker, Jeffrey F. Lebowski, Assistant Attorneys General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)
Considered and decided by Randall, Presiding Judge, Peterson, Judge, and Shumaker, Judge.
U N P U B L I S H E D O P I N I O N
GORDON W. SHUMAKER, Judge
Appellant John Bartlett McGuire refused to submit to implied consent alcohol testing and the commissioner of public safety revoked his driving privileges. The district court sustained the revocation.
Arguing that the arresting police officer did not have probable cause to believe that appellant was in physical control of his motor vehicle and, therefore, had no legal basis for requiring alcohol testing, appellant brings this appeal. Because we believe the facts establish probable cause, we affirm.
On March 24, 2000, at approximately 12:50 a.m., Officer Henry of the White Bear Lake Police Department noticed a sport utility vehicle, with its lights and engine off, parked in the rear parking lot of the Washington Square Bar and Grill. Henry saw what appeared to be a shadow of a person sitting in the driver’s seat. The person was leaning towards the passenger-side seat and appeared to be rummaging through the vehicle. As the officer approached, he activated his squad’s alley lights and illuminated the interior of the vehicle. As the light shined, the officer could no longer see anyone in the vehicle. He left his squad and walked to the passenger-side door. He then saw appellant John Bartlett McGuire inside. McGuire’s torso was positioned in such a way that he was lying on the passenger seat while sitting in the driver’s seat.
Henry asked McGuire to explain what he was doing. McGuire said that he owned the vehicle, as well as the Washington Square Bar, and that he was just eating a sandwich before going home. The officer asked him about his bodily position in the vehicle, and McGuire replied that he was searching for an item that may have fallen near the passenger side and he was lying down on the passenger seat trying to find the item on the floor.
As McGuire spoke, Henry smelled alcohol on his breath and noticed that his eyes were bloodshot and watery, and his speech was slurred. Henry asked McGuire if he had been drinking. McGuire admitted to drinking “too much alcohol,” but said that he was not planning to drive. Rather, he explained that he lived only four blocks from the bar and that he was eating the sandwich in his vehicle because it was raining. Henry testified that he noticed some keys on the passenger seat and that McGuire confirmed that one was the ignition key for the vehicle.
McGuire refused Henry’s request for a preliminary breath test, and similarly refused to perform field sobriety tests. Henry arrested McGuire for being in physical control of his vehicle while under the influence. Because McGuire refused to submit to alcohol testing, the commissioner of public safety revoked his driver’s license.
D E C I S I O N
McGuire petitioned for judicial review of his license revocation, arguing that (1) Henry did not have probable cause to believe that he was in physical control of his vehicle in violation of Minn. Stat. § 169.121 (1998), and (2) that he was not actually in physical control of his vehicle.
Judicial review is available regardless of whether a person refused to submit to a chemical test or submitted to a test and failed. Flamang v. Commissioner of Pub. Safety, 516 N.W.2d 577, 580 (Minn. App. 1994), review denied (Minn. July 27, 1994). In Flamang, this court explained the scope of review differs depending on whether the driver failed or refused testing. Id. This court held that where the revocation is based on refusal to submit to testing, the scope of review is limited to the issues permitted by Minn. Stat. § 169.123, subd. 6 (1998). Id. These issues include whether the officer had probable cause to believe the person was driving while intoxicated, whether statutory preconditions were met, whether the person was properly advised, and whether the person refused to permit the test. Id. (citing Minn. Stat. § 169.123, subd. 6).
Because McGuire’s revocation is based on the refusal to act on the lawful request of a peace officer, the question of whether McGuire was actually in physical control of his vehicle is irrelevant and outside the permissible scope of judicial review. See id. (when revocation premised on driver’s refusal to submit to testing, question of driver’s physical control of vehicle is irrelevant and nonreviewable). Accordingly, the only issue before this court is whether Henry had probable cause to believe that McGuire was in physical control of his vehicle in violation of Minn. Stat. § 169.121.
A determination of probable cause is a mixed question of fact and of law. Clow v. Commissioner of Pub. Safety, 362 N.W.2d 360, 363 (Minn. App. 1985), review denied (Minn. Apr. 26, 1985). The district court’s findings will be upheld unless clearly erroneous, giving due regard to the judge’s ability to observe the witnesses’ credibility. Minn. R. Civ. P. 52.01; Thorud v. Commissioner of Pub. Safety, 349 N.W.2d 343, 344 (Minn. App. 1984). 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).
A police officer must have probable cause to believe a driver is driving, operating, or in physical control of a motor vehicle in violation of Minn. Stat. § 169.121 in order to invoke the implied consent law. Minn. Stat. § 169.123, subd. 2(a) (1998). A police officer has probable cause to believe an individual is in physical control of a vehicle while under the influence of alcohol when,
based on the totality of the circumstances, there is a reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious [person] in believing that the person was in physical control.
Shane v. Commissioner of Pub. Safety, 587 N.W.2d 639, 641 (Minn. 1998) (citations and quotations omitted).
Henry testified that his attention was drawn to a shadowy figure rummaging through a parked vehicle in a dark parking lot. This behavior seemed suspicious enough to warrant further investigation. The officer believed a car theft may have been in progress. He observed McGuire sitting in the driver’s seat of his vehicle. Upon activating his alley lights, he was no longer able to see McGuire in his vehicle since McGuire was lying on the passenger seat. The officer believed that McGuire was lying on the passenger seat to avoid being discovered by the officer. Henry approached McGuire’s vehicle and spoke to McGuire. While talking with McGuire, the officer smelled alcohol on his breath and noticed McGuire’s watery and bloodshot eyes. He further noted that McGuire was slurring his speech. McGuire admitted that he had had too much to drink.
Henry testified that he observed a set of keys on the passenger-side seat of McGuire’s vehicle. When asked, McGuire stated that he was the registered owner of the vehicle and confirmed that the ignition key was lying on the passenger-side seat.
After hearing testimony from Henry and McGuire, the court resolved the credibility dispute in favor of Henry. The court concluded that (1) McGuire’s alcohol consumption interfered with his ability to recollect the evening’s events, and (2) McGuire’s testimony was “not credible when contrasted with the physical evidence of the scene and the officer’s testimony.” The court determined that Henry had probable cause to believe that McGuire was in physical control of a motor vehicle in violation of Minn. Stat. § 169.121.
The term “physical control” is more comprehensive than either “drive” or “operate” and it is given the broadest possible effect. Flamang v. Commissioner of Pub. Safety, 516 N.W.2d at 580.
Physical control is meant to cover situations where an inebriated person is found in a parked vehicle that, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property.
Id. at 581.
Actual operation or intent to operate a vehicle has no bearing on whether an individual is in physical control of the vehicle; drivers who are in a position to operate their vehicles without much difficulty are considered to be in physical control in the context of Minnesota’s implied consent statute. See, e.g., Vivier v. Commissioner of Pub. Safety, 406 N.W.2d 587, 590 (Minn. App. 1987) (finding that officer had probable cause to believe appellant was in physical control of his vehicle when he was found sitting in the driver’s seat, the keys were in his pocket, and he owned the vehicle); Sens v. Commissioner of Pub. Safety, 399 N.W.2d 602, 605 (Minn. App. 1987) (finding that officer had probable cause to believe driver was in physical control of vehicle when officer discovered driver asleep on front seat of vehicle, even though driver had tossed ignition keys in back of vehicle); Palme v. Commissioner of Pub. Safety, 366 N.W.2d 343, 345 (Minn. App. 1985) (holding that appellant in physical control of vehicle when appellant claimed he had entered into a friend’s truck only to sleep, had never planned to drive, and did not know the keys were in the cab), review denied (Minn. June 24, 1985); Kozak v. Commissioner of Pub. Safety, 359 N.W.2d 625, 628 (Minn. App. 1984) (holding that appellant in physical control of vehicle when he was found asleep lying on the front seats of his vehicle, and the exact location of keys not known, but were in possession of appellant; Dufrane v. Commissioner of Pub. Safety, 353 N.W.2d 705, 708 (Minn. App. 1984) (finding that appellant’s upright presence in front seat behind the wheel, plus the officer’s testimony that appellant said he had driven the car earlier, was enough to find probable cause for implied consent purposes).
It is clear from Vivier, Sens, Palme, Kozak, and Dufrane that neither intent to drive nor the location of the ignition key is dispositive in determining physical control. Because we are to give the greatest possible effect to the term “physical control,” McGuire’s actions fall squarely within the definition of physical control.
The state proved by a preponderance of the evidence that Henry had probable cause to believe McGuire was in physical control of a vehicle while under the influence of alcohol. See Dufrane, 353 N.W.2d at 707 (noting burden of proof is on the state to show by preponderance of the evidence that person was in physical control of motor vehicle). The district court’s ruling was not clearly erroneous.
McGuire contends that the courts of this state have so broadly interpreted the concept of “physical control” that people who merely occupy their motor vehicles for legitimate reasons and without any intent to drive suffer harsh consequences. We are required to interpret the implied consent law in favor of the public as opposed to any private interest of the drivers involved. Department of Pub. Safety v. Juncewski, 308 N.W.2d 316, 319 (Minn. 1981); Snyder v. Commissioner of Pub. Safety, 496 N.W.2d 858, 860 (Minn. App. 1993) McGuire’s contention challenges policy issues underlying implied consent legislation and, in effect, invites this court to establish a policy exception for circumstances such as his. Without commenting on the merits of his argument, we simply note that we have no authority to alter legislative policy. See State v. Lucas, 589 N.W.2d 91, 94 (Minn. 1999) (noting where legislature has expressed its intent unambiguously, reviewing court must not substitute its own policy beliefs for those of the legislature).