This opinion will be unpublished and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

C1-00-2215

 

Anthony W. Dewald, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed June 19, 2001

Affirmed

Harten, Judge

 

Scott County District Court

File No. C0-01-2486

 

Samuel A. McCloud, Kelly Vince Griffitts, Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (for appellant)

 

Mike Hatch, Attorney General, Sheila M. Fitzgerald, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

 

            Considered and decided by Kalitowski, Presiding Judge, Harten, Judge, and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

 

            Appellant Anthony W. Dewald challenges respondent Commissioner of Public Safety’s revocation of appellant’s driving privileges.  Appellant contends that the district court made clearly erroneous findings and erred in determining that appellant was in “physical control” of a motor vehicle within the meaning of the implied consent statute.  We affirm.

FACTS

On June 18, 2000, appellant was arrested and charged with violating Minn. Stat. § 169.121, subd. 1(a) (1998),[1] prohibiting persons from operating a motor vehicle while under the influence of alcohol.  Later, respondent commissioner of public safety revoked appellant’s driving privileges pursuant to Minn. Stat. § 169.123 (1998).[2]  Appellant sought and obtained district court review of the revocation.  The only issue litigated at the implied consent hearing was whether there was probable cause to believe that appellant was in “physical control” of a motor vehicle at the time of his arrest.

The arresting officer, Thomas Kahlert, testified that he had arrived at appellant’s lake residence on the date in question in order to investigate a noise complaint.  Having walked to the rear of appellant’s residence, Kahlert saw appellant sitting on a jet ski floating in the lake approximately ten yards from shore.  Appellant was wearing a life jacket with a lanyard attached to it.[3]  Appellant was sitting in a position to operate the jet ski with his hands on the handlebars.  The jet ski was neither anchored nor attached to the dock in any way.  Kahlert motioned for appellant to come to shore and, after some hesitation, appellant complied.  

Kahlert noticed signs that appellant had been consuming alcohol, performed field sobriety tests upon him, and placed him under arrest for boating while under the influence of alcohol.  At no time did Kahlert check to determine whether the key fastened to the lanyard attached to appellant’s jacket actually fit the jet ski on which appellant had been sitting.  After the arrest, appellant explained that he was merely bringing the jet ski to shore because the lake level had changed.  Appellant asked one of his neighbors to tell Kahlert that appellant had not been boating.  According to Kahlert, the neighbor reluctantly “lowered his head and said that [appellant] was just going out.” 

Appellant testified on his own behalf.  He conceded that he had been drinking alcoholic beverages prior to Kahlert’s arrival and that he had been sitting on the jet ski.  Appellant stated, however, that the jet ski belonged to another neighbor, Randy Benzula, that appellant was simply moving the jet ski away from the shore because it was rubbing against some bricks near the shore, and that the “lanyard” connected to his life jacket did not even fit the jet ski on which he had been sitting.  Benzula testified that his jet ski had been docked at appellant’s property since two or three days before June 18. 

At the close of the hearing, appellant’s counsel stated, in relevant part, as follows:

So that’s the issue.  I don’t want to get hung up on this operability issue because as far as I’m concerned for your purposes, Judge, you can assume the [jet ski] would have run if it had a key. 

 

            The district court sustained the revocation of appellant’s driving privileges.  Although the district court acknowledged that Kahlert had not checked to determine whether the key attached to appellant fit the jet ski appellant was riding, the court nevertheless found that the commissioner had shown “by a preponderance of the evidence that the key attached to the life vest belonged to the jet ski [appellant] was moving.”  Moreover, the court determined that, even if the key did not fit the jet ski in question, the implied consent law does not require possession of keys in order to find that a person is in physical control of a motor vehicle.  In short, the district court found that, under the totality of the circumstances, there was probable cause to believe that appellant was in physical control of the jet ski. 

D E C I S I O N

1.                  Findings

Appellant contends that the district court committed clear error in finding that there was probable cause to believe that the key attached to appellant’s life jacket fit the jet ski in question.

On appeal, a district court’s findings of fact are not set aside unless clearly erroneous.  Frauenshuh v. Giese, 599 N.W.2d 153, 156 (Minn. 1999).

An appellate court will not overrule a trial court’s factual findings unless, upon a review of the entire evidence, the appellate court is left with a definite and firm conviction that a mistake has been made.

 

In re Estate of Beecham, 378 N.W.2d 800, 802 (Minn. 1985) (citation omitted).

Where the matter rests largely on the credibility of witnesses and the weight to be given their testimony, an appellate court will not conclude that the district court’s findings are clearly erroneous.  Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996).  “The evidence and its reasonable inferences must be viewed in the light most favorable to the prevailing party.”  State, Dep’t of Pub. Welfare v. Thibert, 279 N.W.2d 53, 56 (Minn. 1979) (citation omitted).  

Here, the evidence received at the hearing demonstrated that appellant was seen wearing a life jacket with a lanyard attached while sitting on a floating jet ski.  A neighbor reluctantly informed the arresting officer that appellant was “just going out.”  The district court apparently credited this testimony and, as a reasonable inference therefrom, found that there was probable cause to believe that the jet ski key attached to appellant’s jacket fit the jet ski on which he was sitting. 

Appellant has failed to demonstrate that the district court committed clear error in finding that the key attached to appellant fit Benzula’s jet ski.  As discussed below, however, this factual determination is not itself dispositive of the legal issue as to whether appellant was in “physical control” of the jet ski.

2.                  Physical Control

Appellant contends that he did not have “physical control” of the jet ski within the meaning of the implied consent statute because the “lanyard” in his possession did not fit the jet ski.[4]  This essentially raises a question involving statutory construction, which we review de novo.  See Brookfield Trade Ctr., Inc. v. County of Ramsey, 584 N.W.2d 390, 393 (Minn. 1998). 

Under the informed consent statute,

 

[a]ny person who drives, operates, or is in physical control of a motor vehicle * * * consents * * * to a chemical test of that person’s blood, breath, or urine for the purpose of determining the presence of alcohol * * *.

 

Minn. Stat. § 169.123, subd. 2 (1998).[5]  Refusal to submit to such a test or test results indicating alcohol concentration of .10 or more results in revocation of the offender’s driving privileges.  Id., subd. 4(d), (e) (1998).  Respondent revoked appellant’s driving privileges pursuant to Minn. Stat. § 169.123.  

The term “physical control” is more comprehensive than the terms “drive” or “operate,” and so the term should be given the broadest possible effect in order to fulfill the legislature’s purpose of preventing intoxicated persons from getting into vehicles except as passengers.  State v. Starfield, 481 N.W.2d 834, 836 (Minn. 1992) (citations omitted).  “Mere presence in or about the vehicle is not enough for physical control; it is the overall situation that is determinative.”  Id. at 838.

Physical control does not solely depend upon the location of the ignition key.  The location of the key is simply a factor, with others, to consider.

 

Dufrane v. Commissioner of Pub. Safety, 353 N.W.2d 705, 707 (Minn. App. 1984) (citations omitted).

Here, the district court found probable cause to believe that the key attached to appellant fit the jet ski.  That belief, combined with other evidence, to-wit, appellant sitting at the controls of an unmoored jet ski and a neighbor stating that appellant was “just going out”—provides sufficient indicia of physical control to support the district court’s finding that there was probable cause to believe that appellant was in physical control of the jet ski.  See Starfield, 481 N.W.2d at 838 (noting that a jury could find beyond a reasonable doubt that person was in “physical control” of vehicle based on circumstantial evidence—person behind the wheel of her own car, keys in her pocket, towing assistance likely available).  Accordingly, the district court correctly sustained the revocation of appellant’s driving privileges.

Affirmed.



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

[1] Repealed effective July 1, 2000.  2000 Minn. Laws ch. 478, art. 2, §§ 8, 9.  Now codified at Minn. Stat. § 169A.20 (2000).

[2] Repealed effective July 1, 2000.  2000 Minn. Laws ch. 478, art. 2, §§ 8, 9.  Now codified at Minn. Stat. § 169A.51 (2000).

[3] Kahlert testified that a lanyard is a cord attached at one end to a rider’s wrist or life vest and at the other to the jet ski.  If the rider is thrown from the jet ski, the lanyard disconnects and the jet ski shuts off.  Apparently a jet ski key was attached to the lanyard.  If, however, the lanyard is itself considered to be a key, our opinion remains the same.

[4] In his brief, appellant argues that the jet ski was inoperable and therefore appellant could not have been in “physical control” of the jet ski.  At oral argument, however, counsel for appellant conceded this issue in the district court and it is not before us on appeal.

[5] For the purposes of sections 169.121 and 169.123, the term “motor vehicle” includes “motorboats in operation.”  Minn. Stat. § 169.121, subd. 11 (1998).  A “motorboat” is defined as “a watercraft propelled in any manner by machinery.”  Minn. Stat. § 169.01, subd. 87 (1998).  However, a “‘motorboat in operation’ does not include a motorboat that is anchored, beached, or securely fastened to a dock or other permanent mooring, or a motorboat that is being rowed or propelled by other than mechanical means.”  Minn. Stat. § 169.121, subd. 11.