This opinion will be unpublished and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
State of Minnesota,
Peter Michael Wallin,
Affirmed in part, reversed in part.
Sherburne County District Court
File No. T5-00-10126
Mike Hatch, Attorney General, 525 Park
Street, Suite 500, St. Paul, MN 55103; and
Walter M. Kaminsky, Sherburne County Attorney, Thomas C. McNinch, Assistant County Attorney, 13880 Highway 10, Elk River, MN 55330 (for appellant)
Stephen R. O'Brien, 247 Third Avenue South, Minneapolis, MN 55415 (for respondent)
Considered and decided by Peterson, Presiding Judge, Amundson, Judge, and Anderson, Judge.
The state appeals from the dismissal, for lack of probable cause, of charges of being in physical control of a motor vehicle while under the influence of alcohol, refusal to submit to testing, and operating a vehicle in violation of a restricted license. We affirm in part and reverse in part.
On September 4, 2000, at approximately 1:00 a.m., Elk River Police Officer Todd Erickson responded to a report of a prowler at an apartment complex located at 1105 Lions Park Drive, Elk River, Minnesota. Erickson searched the area for the prowler and noticed a man standing on one of the apartment balconies. Erickson asked the man if he had seen anyone on the fire escape or been on it himself. The man pointed to another man, later identified as Peter Michael Wallin, who was seated in the front seat of a gray Ford Explorer. He indicated to the officer that the man was drunk.
Erickson approached Wallin, who was slouched over in the driver’s seat of the vehicle. The side door was open. Erickson asked Wallin if he had been on the fire escape and if he was okay. Wallin, who resides in that apartment complex, indicated that he had not been on the fire escape, but that he was upset over a recent break-up with his girlfriend. Erickson concluded that Wallin was intoxicated because of his slurred speech, bloodshot eyes, and the strong odor of alcohol emanating from him. Erickson asked Wallin for identification, and then performed field sobriety tests. Erickson arrested Wallin for being in physical control of a motor vehicle while under the influence of alcohol. In his report, Erickson made no mention of the location of Wallin’s car keys.
Wallin was charged with driving, operating, or being in physical control of a motor vehicle while under the influence of alcohol in violation of Minn. Stat. § 169.121, subd. 1(a) (1998), refusal to submit to testing in violation of Minn. Stat. § 169.121, subd. 1a; and operating a motor vehicle in violation of a restricted license, in violation of Minn. Stat. § 171.09 (b) (2000).
At the probable cause hearing, Erickson, Wallin, and James Moos, a friend of Wallin’s and guest in his apartment, testified. Wallin testified that he went to the car to look in the glove box for a pack of cigarettes and remained in the car thinking about his recently ended relationship. The vehicle was not running and the radio was not on. He also testified that the keys were in his pocket. Moos corroborated the fact that Wallin had not been driving his vehicle prior to the arrest. Erickson, however, testified that the keys were in the ignition. The district court then entered an order dismissing the matter for lack of probable cause.
The district court specifically found that Wallin had not driven the car the afternoon or evening of September 3, 2000, and that Erickson’s testimony about the placement of the keys in the ignition was not credible. The district court determined that Wallin did not have control of his vehicle when approached by Erickson and therefore was not in physical control of a motor vehicle while under the influence of alcohol, did not unlawfully refuse to submit to testing, and did not operate a motor vehicle in violation of a restricted license. The district court denied the state’s subsequent motion to reconsider and clarify the order. This appeal followed.
An order dismissing a complaint for lack of probable cause is appealable if it is based on a legal determination. State v. Edwards, 589 N.W.2d 807, 810 (Minn. App. 1999), review denied (Minn. May 18, 1999). We review such a determination on a de novo basis. State v. Ortiz, 626 N.W.2d 445, 448 (Minn. App. 2001), review denied (Minn. June 27, 2001). We reverse pre-trial orders under Minn. R. Crim. P. 28.04 only where the state demonstrates that the district court clearly and unequivocally erred in its judgment and the error will have a critical impact upon the outcome of the trial unless it is reversed. State v. Trei, 624 N.W.2d 595, 597 (Minn. App. 2001), review dismissed (Minn. June 22, 2001). The dismissal of a complaint will satisfy the critical impact requirement. Id.
Here, the district court concluded that the facts did not support a finding of probable cause that Wallin had committed the offenses of (1) being in physical control of a motor vehicle while under the influence of alcohol, (2) refusal to submit to testing, and (3) operating a vehicle in violation of a restricted license. Except for the finding that the keys were not in the ignition, the district court based its findings on the uncontroverted facts at the hearing. On appeal, the state argues that the evidence supports a conclusion that Wallin was in “physical control” of his vehicle and therefore probable cause exists to support charges for the offenses.
Probable cause exists where the facts would lead a person of ordinary care and prudence to hold an honest and strong suspicion that the person under consideration is guilty of a crime. State v. Carlson, 267 N.W.2d 170, 173 (Minn. 1978). In addressing a probable cause challenge, the court must determine whether the facts appearing in the record “would preclude the granting of a motion for a directed verdict of acquittal if proved at trial.” State v. Florence, 306 Minn. 442, 459, 239 N.W.2d 892, 903 (1976).
Under Minnesota law,
[i]t is a crime for any person to * * * be in physical control of any motor vehicle * * * when that person is under the influence of alcohol.
Minn. Stat. § 169.121, subd. 1. The term “physical control” is more comprehensive than either “drive” or “operate” and it is given the broadest possible effect. State v. Starfield, 481 N.W.2d 834, 836 (Minn. 1992). Physical control is meant to cover situations where an inebriated person is found in a parked vehicle that might easily be started and become a source of danger to the operator, to others, or to property. Id. at 837.
Here, because there is no dispute that Wallin had his keys to his car with him, was alone in his car, and was sitting in the driver’s seat, the facts are sufficient to support a finding of probable cause that Wallin was in “physical control” of his car. Because a peace officer may demand that a driver submit to testing for alcohol where the officer has probable cause to believe that the driver was in physical control of a motor vehicle while intoxicated, Flamang v. Commissioner of Pub. Safety, 516 N.W.2d 577, 579 (Minn. App. 1994), review denied (Minn. July 27, 1994), the facts also support a finding that probable cause exists to charge Wallin with failing to submit to testing.
The district court also dismissed the charge of operating a vehicle with a restricted license. That statute provides that “it is unlawful for any person to operate a motor vehicle” in violation of the restrictions imposed on that person’s restricted license. Minn. Stat. § 171.09(b) (2000) (emphasis added). Basic principles of statutory construction provide that words are to be given their plain and ordinary meaning and the language of criminal statutes is to be strictly construed. Baker v. Ploetz, 616 N.W.2d 263, 268 (Minn. 2000). “Operate” means “[t]o control the functioning of; run.” The American Heritage Dictionary of the English Language, 1268 (3d ed. 1996).
It is undisputed that Wallin did not have his vehicle running. There was also no evidence that he had been running the vehicle that day, and therefore was not operating his vehicle within the meaning of the statute. Thus, the dismissal of this charge is affirmed.
For the foregoing reasons, we reverse the dismissal of the charges of being in physical control of a motor vehicle while under the influence of alcohol and failing to submit to testing. We affirm the dismissal of the charge of operating a motor vehicle in violation of Wallin’s restricted license. Because we do not decide the case based on the facts involving the district court’s credibility determination, we do not address the state’s arguments regarding that issue.
Affirmed in part, reversed in part.
 The repeal of Minn. Stat. § 169.121 was effective January 1, 2001. 2000 Minn. Laws ch. 478, Art. 2, § 9.