This opinion will be unpublished and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-00-1743

 

 

State of Minnesota,

Appellant,

 

vs.

 

Richard James Robertson,

Respondent.

 

 

Filed May 8, 2001

Reversed and remanded.

G. Barry Anderson, Judge

 

Mille Lacs County District Court

File No. K599752

 

Mike Hatch, Minnesota Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103; and

 

Janelle P. Kendall, Mille Lacs County Attorney, Scott A. Buhler, Assistant Mille Lacs County Attorney, 1851 Pete’s Point Lane, Alexandria, MN 56308 (for appellant)

 

Thomas E. Bauer, Thomas E. Bauer & Associates, 14225 Highway 55, Plymouth, MN  55447 (for respondent)

 

            Considered and decided by G. Barry Anderson, Presiding Judge, Lansing, Judge, and Halbrooks, Judge.

 

U N P U B L I S H E D   O P I N I O N

G. BARRY ANDERSON, Judge

            In this pretrial appeal, the state argues that the district court erred in suppressing, based on the absence of probable cause, the results of respondent’s portable breath test and in dismissing the charge of boating while intoxicated.  Because we find that the appropriate threshold question was not probable cause but rather whether reasonable articulable suspicion existed to administer field sobriety tests and a preliminary breath test, we reverse and remand. 

FACTS

            On May 17, 1999, at approximately 1:20 a.m., conservation officer Bob Mlynar noticed a lone motorboat on Lake Mille Lacs.  Mlynar approached the boat to make a routine investigatory stop.  Respondent Richard James Robertson was operating the boat alone. 

            Mlynar noticed that respondent had a strong odor of alcohol about him.  Mlynar also observed the presence of empty beer cans in the boat.  Respondent, when asked if he had been drinking, admitted consuming a couple of beers earlier in the evening. 

            Mlynar then administered several field sobriety tests to respondent, and respondent performed poorly on all of them.  Respondent’s portable breath test (PBT) result indicated an alcohol concentration of .224.  Mlynar then read respondent the implied consent advisory.  The state charged respondent with six counts of gross misdemeanor Driving While Intoxicated, in violation of Minn. Stat. § 169.121, subds. 1(a), (d), and (e), and 3(c)(2)(i) and (ii) (1998). 

            The district court, in response to a motion by appellant to dismiss the charges for lack of probable cause, issued an order requiring the state to make an offer of proof regarding any additional indicia of intoxication that respondent exhibited at the time of the arrest.  This order further indicated that, without additional indicia of intoxication, the court would dismiss the charges for lack of probable cause.  The state failed to provide any additional indicia of intoxication. 

            In its September 29, 2000 order, the district court found the initial investigatory stop valid, but concluded that Mlynar lacked sufficient probable cause to arrest respondent.  All criminal charges against respondent were dismissed.  This appeal follows. 

D E C I S I O N

1.                  Standard of Review

 

            When reviewing pretrial orders on motions to suppress evidence, [reviewing courts] may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing--or not suppressing--the evidence. 

 

State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citation omitted). 

2.         Critical Impact

            Because the charges against respondent were dismissed as a result of suppression of evidence, the state has clearly and unequivocally shown that the district court’s order will have a “critical impact” on the state’s ability to prosecute respondent successfully and thus this appeal is properly before this court.  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (citing State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995)).  

3.         Probable Cause

            The state contends, contrary to the district court’s conclusion, there were sufficient indicia of intoxication to form a reasonable belief that respondent was boating under the influence of alcohol.  “Probable cause exists when all the facts and circumstances would lead a cautious person to believe that the driver[1] 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).  The inquiry is objective, not subjective.  State v. Riley, 568 N.W.2d 518, 523 (Minn. 1997).  In State v. Lee, 585 N.W.2d 378 (Minn. 1998), the supreme court stated that an officer need not observe any “commonly-known physical indicia of intoxication” to have probable cause.  Id. at 382.  Rather, an officer must have

probable cause to believe that administration of a blood alcohol test will result in the discovery of evidence relevant in the prosecution of a crime.

 

Id. (citing State v. Speak, 339 N.W.2d 741, 745 (Minn. 1983)).  But the facts in Lee are clearly distinguishable from the facts presented here.  In Lee, the defendant was found seriously injured on the ground near his motorcycle.  Id. at 379.  He was incoherent, and non-responsive to the police officer’s questions.  Id.  The supreme court stated that the police

had an objective basis for investigating the felony offense of criminal vehicular operation resulting in substantial bodily harm, as well as the gross misdemeanor offense of criminal vehicular operation resulting in bodily harm. Officer Wayne knew that the accident was a single-vehicle motorcycle accident that occurred at a point in the road the defendant had traversed in the other direction just moments earlier. This evidence suggested negligent driving on the defendant’s part--the sort of inattentive driving indicative of the defendant being under the influence of alcohol. 

 

Id. at 383.  The court went on to conclude that Lee’s incoherence and unresponsiveness to questions constituted behavior consistent with being under the influence of alcohol.  Id.  The facts in Lee stand in stark contrast to those in the present case. 

            Here, Mlynar made a proper investigatory stop of a boat.  But there was no accident or evidence of any crime as was the case in Lee.  Mlynar noticed the smell of alcohol and some empty beer cans.  Respondent acknowledged consuming alcohol earlier in the evening.  But the odor of alcohol and the presence of beer cans, considered in isolation, are not indicia of intoxication.  We find no Minnesota case law supporting such a finding.

            The district court concluded that Mlynar did not have probable cause to believe respondent was intoxicated based solely upon the odor of alcohol, the presence of a few beer cans, and the admission to having recently consumed alcohol.  We agree.

The district court’s probable cause analysis, however, was premature.  Here, the appropriate analysis should have begun with determining whether Mlynar was justified in administering the field sobriety tests and the PBT based solely upon the odor of alcohol, the presence of a few beer cans, and respondent’s admission to the recent consumption of alcohol. 

4.         Articulable Suspicion Standard 

            Requesting that a driver perform a series of field sobriety tests is standard practice to aid an officer in determining whether probable cause exists for an arrest. Commissioner of Pub. Safety v. Shewchuk, 412 N.W.2d 434, 436 (Minn. App. 1987).  Likewise, the purpose of requiring the PBT is to assist officers in making a probable cause determination when they are unsure whether the driver is under the influence.  Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 700 (Minn. 1980). 

            An officer may request that a driver take a preliminary screening test when the officer has “reason to believe” that the driver may be violating or has violated Minn. Stat. § 169.121, subd. 1.  Minn. Stat. § 169.121, subd. 6 (1998).  The supreme court has held that this standard is met when the officer has specific and articulable facts to believe the person had been driving while under the influence of alcohol.  State, Dep’t of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981).  This means that an officer need not have probable cause, a higher standard, to believe that a violation has occurred to administer a preliminary screening test.  State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986), review denied (Minn. May 16, 1986).  But an officer must have a specific and articulable suspicion that a driver was driving under the influence of alcohol before the officer may require a preliminary screening test.  Hager v. Commissioner of Pub. Safety, 382 N.W.2d 907, 911 (Minn. App. 1986).  Similarly, field sobriety tests are a type of limited intrusion which must be justified by a reasonable suspicion that the driver was driving while under the influence.  State, Dept. of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981). 

            Articulable suspicion is an objective standard and is determined from the totality of the circumstances.  Paulson v. Commissioner of Pub. Safety, 384 N.W.2d 244, 246 (Minn. App. 1986).  A district court, in reviewing a motion to suppress, must determine whether the officer is able to articulate at the hearing a “particularized and objective basis for suspecting the particular person stopped of criminal activity.”  United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981).  It is normally for the district court, not the appellate court, to make the finding of whether there was articulable suspicion.  State v. Pollard, 370 N.W.2d 426, 427 (Minn. App. 1985).  We therefore remand to the district court for application of the articulable suspicion standard to the circumstances as they existed prior to the administering of the field sobriety tests and the PBT. 

            Reversed and remanded. 

 



[1]   In Minnesota, boats and automobiles are both considered “motor vehicles,” and their operators are held to the same standards.  See Minn. Stat. § 169.01, subd. 3 (2000)    (“ ‘Motor vehicle’ means every vehicle which is self- propelled * * * .”); Minn. Stat.  § 97A.015, subd. 32 (2000) (“ ‘Motor vehicle’ means a self-propelled vehicle or a vehicle propelled or drawn by a self-propelled vehicle that is operated on a highway, on a railroad track, on the ground, in the water, or in the air”).