This opinion will be unpublished and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

C9-01-92

 

 

 

Dennis Alan Lipoff,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

 

 

Filed July 10, 2001

Affirmed

Toussaint, Chief Judge

 

Cook County District Court

File No. C50174

 

 

Gregory J. Rebeau, 411 North Lexington Parkway, Suite G, St. Paul, MN 55104 (for appellant)

 

 

Mike Hatch Attorney General, Melissa Jeanne Eberhart, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106 (for respondent)

 

 

Considered and decided by Toussaint, Chief Judge, Amundson, Judge, and Huspeni, Judge.*

U N P U B L I S H E D  O P I N I O N

TOUSSAINT, Chief Judge

            Appellant Dennis Alan Lipoff challenges the district court’s order concluding that appellant was (1) in physical control of his motor vehicle; and (2) in “actual physical control” of his vehicle, thus, having no legal basis for requiring alcohol testing.  Because the record supports the district court’s conclusions, we affirm.

FACTS

            On September 4, 2000, at about 1:15 a.m., Deputy Mark Falk of the Cook County Sheriff’s Department received a report from a citizen regarding a blue van in the parking lot of the powwow grounds near the Grand Portage Marina in Grand Portage.  Deputies Falk and Myers drove to the area to investigate.  After observing the blue van in the parking lot, the deputies approached and noticed appellant Dennis Lipoff standing outside of the van near the front driver’s side, along with a few other individuals.  Near the individuals were empty, as well as unopened, beer cans.  The van’s engine was running, the headlights were off, and the windows were closed.  Lipoff’s fiancee was sleeping in the back of the van, and she testified that she had used her set of keys to start the van’s engine because she was cold.

Upon speaking with Lipoff, Deputy Falk learned that after Lipoff was dropped off at the casino parking lot by a shuttle bus at around 11 p.m. on September 3, he drove his van to the powwow grounds to sleep there for the evening.  After speaking with Lipoff, Deputy Falk requested that Lipoff submit to a chemical test in accordance with the implied consent statute.  The results indicated that Lipoff had a blood alcohol concentration of .12.  Lipoff was then arrested, and his license was subsequently revoked. 

Testimony was taken for both the implied consent matter and the criminal driving while intoxicated (DWI) matter on October 19, 2000.  The district court upheld the revocation of Lipoff’s driver’s license.  Lipoff appeals.  The sole issue before this court is whether Lipoff was in physical control of the vehicle at the time of his arrest.

D E C I S I O N

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).  We review the district court's determination of probable cause to ensure that there was a substantial basis to conclude that probable cause existed.  State v. Harris, 589 N.W.2d 782, 787-88 (Minn. 1999).  "Substantial basis" in this context means a "fair probability," given the totality of the circumstances, that "contraband or evidence of a crime will be found in a particular place."  State v. Zanter, 535 N.W.2d 624, 633 (Minn. 1995) (citation omitted).

 

I.                    

 

            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 (2000) in order to invoke the implied consent law.  Minn. Stat. § 169.123, subd. 2(a) (2000).  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)(citation omitted).

Lipoff argues that there was no probable cause to believe that he was in physical control of the van because he was not within close proximity of the driver’s seat, and because he and his financee were “settled in” for the night.  Lipoff does not dispute that he was intoxicated at the time of his arrest.  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 577, 580 (Minn. App. 1994), review denied (Minn. July 27, 1994). 

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.

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) (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 (Minn. App. 1987) (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 (Minn. App. 1985) (court held appellant in physical control of vehicle when appellant claimed he had gotten 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 (Minn. App. 1984) (court held appellant in physical control of vehicle when he was found asleep lying on the front seats of his vehicle, and it was not known whether the keys were in the ignition, the driver's pocket, or on the seat); Dufrane v. Commissioner of Pub. Safety, 353 N.W.2d 705 (Minn. App. 1984) (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).  Since the keys were in the van’s ignition, the engine was running, and Lipoff was near the driver’s side of the van, he was in a position in which it would not be difficult to operate the van.  Thus, Deputy Falk’s reasonable suspicion that Lipoff was in physical control of the vehicle is sufficiently supported by the circumstances.

However, the state must show by a preponderance of the evidence that Deputy Falk had probable cause to believe Lipoff was in physical control of a vehicle while under the influence of alcohol.  Dufrane, 353 N.W.2d at 707.  This court must give great deference to the peace officer's determination of probable cause, and interpret the implied consent law in favor of the public and against a private interest.  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).  Lipoff acknowledges that he had driven the van to the site, and that when the deputies arrived, the vehicles engine was running and Lipoff was standing outside near the driver’s side of the van.  The record support’s Deputy Falk’s determination of probable cause to believe that Lipoff was in physical control of the van while under the influence of alcohol.  Thus, the district court's finding that by the preponderance of the evidence the officer had probable cause to believe Lipoff was in physical control of the vehicle while under the influence of alcohol is supported by a substantial basis.

II.                 

 

Lipoff argues that the district court erred in not specifically deciding the issue of whether he was in actual physical control of the van.  In support of this argument, Lipoff cites to Whitman v. Commissioner of Pub. Safety, 416 N.W.2d 476, 477 (Minn. App. 1987), in which the court states that

[w]hen a driver raises the issue of whether he was actually driving, operating or in physical control of a motor vehicle, the Commissioner of Public Safety must prove by a fair preponderance of the evidence that he was doing so.

 

Lipoff argues that since he raised this issue, it was necessary for the state to prove, and the district court to specifically find, that Lipoff was in actual physical control of the vehicle. 

Whether Lipoff was in actual physical control of the vehicle involves the probable cause prong of the implied consent analysis.  Hansen v. Commissioner of Pub. Safety, 478 N.W.2d 229, 231 (Minn. App. 1991).  One purpose of the implied consent laws is to deter intoxicated individuals from getting into their vehicles except as passengers.  Whitman, 416 N.W.2d at 478; Hansen, 478 N.W.2d at 231.  If Lipoff had been merely a passenger in the vehicle, it would be difficult to find that he was in physical control of the vehicle.  Hansen, 478 N.W.2d at 231.  Thus,

a resolution of whether appellant had actually driven is clearly relevant to whether he was in physical control of the vehicle when the officer approached him.

 

Whitman, 416 N.W.2d at 477-478.  Although the district court did not specifically find that Lipoff was in “actual physical control” of the vehicle, it did make the factual finding that Lipoff had driven the vehicle to the powwow grounds, which is clearly supported by the record.  Thus, the state proved by a fair preponderance of the evidence that Lipoff was in actual physical control of the vehicle.  Furthermore, this finding is relevant to the deputies’ probable cause determination that Lipoff was not merely a passenger in the vehicle, and it supports the deputies’ determination that Lipoff was in physical control of the vehicle when they approached him.   Therefore, the district court had a substantial basis to conclude that the deputies had probable cause to believe that Lipoff was in physical control of the vehicle at the time they approached him.

            Affirmed.



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