This opinion will be unpublished and

may not be cited except as provided by

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






Juan Morales,






Commissioner of Public Safety,




Filed May 15, 2001

Foley, Judge


Hennepin County District Court

File No. AP006212



Richard F. Koch, Andrew S. Garvis, Koch and Garvis, L.L.C., 3109 Hennepin Avenue South, Minneapolis, MN  55408 (for appellant)


Mike Hatch, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN  55103 (for respondent)


Considered and decided by Randall, Presiding Judge, Foley, Judge, and Huspeni, Judge.*

U N P U B L I S H E D   O P I N I O N

FOLEY, Judge

            Appellant’s driver’s license was restricted by a “B card,” requiring him to maintain complete abstinence from alcohol.  After stopping appellant for speeding, the police officer detected a slight odor of alcohol and noticed appellant’s eyes were slightly watery. Appellant refused a preliminary breath test, and his driver’s license was then cancelled and denied as inimical to public safety under the implied consent statute.  Appellant challenges the district court order sustaining the cancellation and denial.  Because we believe the district court properly conducted a proper de novo hearing and that there was sufficient evidence to prove that appellant consumed alcohol on the day in question, we affirm.


            Following three alcohol-related driving incidents, appellant Juan Morales’s driver’s license was canceled as inimical to public safety.  In 1989, appellant demonstrated that he had completed the rehabilitation requirements set forth by respondent Commissioner of Public Safety.  Appellant’s driver’s license was reinstated, but restricted by a “B card,” requiring him to maintain complete abstinence from alcohol.

            In March 2000, Dakota County Deputy Sheriff Daniel Michener stopped appellant’s vehicle for speeding.  Michener detected an odor of alcohol and noticed that appellant’s eyes were somewhat watery.  Believing that appellant was under the influence of alcohol, Michener requested that he submit to a preliminary breath test (PBT).  Michener testified that appellant denied consuming any alcohol and refused to submit to a PBT, stating that he believed the test was unreliable.  Deputy Sheriff Barak Bjorge, who came to the stop location to assist Michener, detected a slight but definite odor of alcohol on appellant. Michener impounded appellant’s vehicle and issued him a citation for a B card violation, but did not arrest him.

            Appellant testified that he quit drinking after his arrest for DWI in 1988 and submitted affidavits by two friends stating that they had seen appellant at many social functions during the previous 11 and 13 years and that they had never seen him drink alcohol, even though it was available.  The person who came to pick appellant up after his vehicle was impounded stated that he did not detect any odor of alcohol or notice anything out of the ordinary relating to appellant’s speech and that appellant did not stumble or stagger.

            Appellant’s doctor stated that at the time of the stop, appellant was suffering from a medical condition resulting in a hoarse sounding voice and some hearing loss, and his speech was slurred due to jaw surgeries, which should have been detected by the officers.  The doctor also claimed that if appellant had consumed alcohol, the combination of alcohol and prescription drugs would have resulted in a noticeable impairment in his balance, gait, or ability to control his vehicle.  The doctor opined that appellant’s medical condition could have led to a mistaken assessment by a police officer.  The doctor, however, testified that he could not “speak as to the alleged ‘smell of alcohol’ that the officers witnessed.”


            There is a presumption of regularity and correctness when license matters are reviewed.  This court will not reverse a license determination unless it finds that it is unsupported by substantial evidence or is arbitrary and capricious.  The Commissioner of Public Safety must present some evidence to show that sufficient cause existed to believe a violation of the total abstinence clause occurred.  Appellant must show that the commissioner acted unreasonably.


Igo v. Commissioner of Pub. Safety, 615 N.W.2d 358, 360 (Minn. App. 2000), review denied (Minn. Oct. 17, 2000) (citations omitted).

This court has

held that because Minn. Stat. § 171.19 (1998) authorizes the district court to take new evidence at a hearing on a petition for reinstatement, the court must do more than simply determine whether the commissioner had sufficient cause for cancellation based on the facts known at the time of the initial cancellation. * * * [T]he district court must weigh witness credibility and all of the evidence, and independently determine whether the cancellation is justified.


Id. at 361 (citation omitted).

            Appellant argues that the district court erred by failing to specifically find that he had consumed alcohol on the day he was stopped.  In Madison v. Commissioner of Pub. Safety, 585 N.W.2d 77 (Minn. App. 1998), review denied (Minn. Dec. 15, 1998), this court held that the district court erred in upholding the cancellation of a license restricted by a B card based only on the evidence before the commissioner and in failing to evaluate the additional evidence presented at the hearing before the district court.  This court stated that if the district court could not make a specific finding that the driver had consumed alcohol on that day, the driver was entitled as a matter of law to reinstatement of his license.  Id. at 83.

            The district court found that Officer Michener was trained to detect alcohol, that both Michener and Officer Bjorge were experienced in DWI arrests, and that both officers noticed a slight odor of alcohol emanating from appellant’s body.  The district court found that appellant failed to

present any evidence showing that the odor of alcohol came from a source other than his person.  For example, [appellant] did not suggest that the odor was from his clothing (a spilled drink), or from having been in proximity to an area where alcohol was served/consumed, or that another person, at an earlier time, had been present in the motor vehicle after having consumed alcohol.


In addition to the odor of alcohol, the district court found that appellant’s watery eyes constituted an indication that he had consumed alcohol and that he failed to offer any explanation.  Finally, the district court found that appellant’s refusal to submit to a PBT was another indication of alcohol consumption.  See State v. Simon, 485 N.W.2d 719, 722 (Minn. App. 1992), vacated in part on other grounds, 493 N.W.2d 528 (Minn. 1992) (refusal to submit to chemical testing may be used as evidence of guilt).

            In sum, the district court found that three indicia of intoxication were present and for two, the odor of alcohol and watery eyes, appellant failed to offer any explanation other than that he had consumed alcohol.  Viewing the findings as a whole, we are persuaded that the district court properly inferred that the evidence supports a finding that appellant consumed alcohol the day he was stopped.

            Appellant objects to the district court’s consideration of his refusal to take a PBT as evidence that he consumed alcohol.  Appellant, however, did not object to the admission of the evidence of his refusal before the district court, nor did he argue that the evidence could only be considered for a limited purpose.  Appellant therefore waived this issue by failing to raise it before the district court.  See Minn. R. Evid. 103(a)(1) (error may not be predicated on erroneous admission of evidence unless party makes timely objection stating specific ground of objection); Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (this court will generally not consider matters not presented to and considered by district court).

            Appellant next contends that the district court erred in failing to consider the affidavits he presented.  Although the district court did not make any specific findings on the affidavit evidence, the findings on appellant’s testimony show that the court considered the evidence presented at the hearing, not just the evidence before the commissioner.  The district court’s findings show that it found the officers’ testimony credible and that it found significant appellant’s failure to offer any explanation for his watery eyes and the odor of alcohol coming from his person other than that he had consumed alcohol.  Because none of the affidavits offered any alternative explanations for those indicia of alcohol consumption, specific findings on the affidavit evidence were unnecessary.

            Appellant argues that the evidence he presented shows as a matter of law that he did not consume alcohol on the day of the stop.  That evidence, however, was contradicted by the officers’ observation of indicia of alcohol consumption and by appellant’s refusal to take a PBT.  Appellant’s argument on appeal goes to the weight and credibility of the officers’ testimony and the evidence he presented.  The weight and credibility of the witnesses is for the trier of fact to determine.  State v. Huss, 506 N.W.2d 290, 292 (Minn. 1993).

A proceeding to cancel a driver’s license under the implied consent statute is civil in nature, not criminal.  See State v. Dumas, 587 N.W.2d 299, 303 (Minn. App. 1998) (driver’s license revocation), review denied (Minn. Feb. 24, 1999).  Accordingly, the commissioner’s burden of proof is by a preponderance of the evidence.  Johnson v. Commissioner of Pub. Safety, 392 N.W.2d 359, 362 (Minn. App. 1986).  In this proceeding, the commissioner only had to prove that appellant had consumed alcohol, not that he was intoxicated or under the influence of alcohol.  See State v. Tofte, 563 N.W.2d 322, 324-25 (Minn. App. 1997) (“B card” means that license is conditioned on abstention from alcohol or drugs, and any violation condition is ground for cancellation and denial of driving privilege).  The officers had reason to believe that appellant had consumed alcohol, and the credibility of their testimony was not challenged.  The evidence was sufficient to prove that appellant consumed alcohol on the day of the stop.  See id. at 325-26 (evidence that officer smelled odor of alcoholic beverage coming from appellant’s person and appellant’s admission to officer that she drank that day sufficient to prove consumption of alcohol beyond reasonable doubt in criminal proceeding for violating driver’s license restriction).


* Retired judges of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.