This opinion will be unpublished and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-01-859

 

Thomas Jerome Benson, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed October 30, 2001

Affirmed

Forsberg, Judge*

 

Mower County District Court

File No. C5-01-66

 

 

Peter D. Plunkett, Warren F. Plunkett & Associates, 107 West Oakland Avenue, P.O. Box 463, Austin, MN 55912 (for appellant)

 

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

 

            Considered and decided by Willis, Presiding Judge, Lansing, Judge, and Forsberg, Judge.


U N P U B L I S H E D   O P I N I O N

 

FORSBERG, Judge

 

            Appellant was arrested for driving under the influence.  His driver’s license was later revoked.  Appellant sought judicial review of the revocation, arguing that the officer did not have probable cause to arrest because the observed indicia of intoxication, slurred speech, watery eyes, and inability to walk, could have been caused by the weather, not alcohol.  The district court sustained the revocation.  Because we conclude that there was probable cause to arrest appellant, we affirm. 

 FACTS

 

An Austin City police officer responded to a call from a tow truck driver who was concerned that appellant Thomas Jerome Benson had been driving under the influence.  When the officer arrived, the tow truck driver informed him that appellant made jittery eye movements, had slurred speech, and was unable to walk straight.  The tow truck driver also told the officer that he had observed appellant in the driver’s seat of a vehicle that was still running when the officer arrived.  The officer testified that appellant spoke with slurred speech, had bloodshot, watery eyes, and “was stumbling and unable to keep his feet.”  When questioned by the officer about whether he had been driving, appellant responded affirmatively and said “he knew he shouldn’t be doing that.” 

On the night of appellant’s arrest, the weather was cold and windy.  Appellant had on only a jean jacket with no hat or gloves.  Both the tow truck driver and officer testified that appellant’s behavior could have been affected by the weather.  However, the officer also testified that he was not experiencing the same difficulties nor did he observe anyone else having them. 

Because of the poor weather conditions, the officer did not administer a sobriety test.  The officer arrested appellant for driving under the influence and the Commissioner of Public Safety revoked appellant’s license.  Appellant sought review by the district court, which sustained the revocation.  Appellant argues that the district court erred in finding that the officer had probable cause to arrest.

D E C I S I O N

Whether there is probable cause to request a chemical test is a question that this court reviews only to determine whether the officer had a substantial basis for invoking the implied consent law.  Heuton v. Comm’r of Pub. Safety, 541 N.W.2d 361, 363 (Minn. App. 1995). Probable cause exists where the

objective facts are such that under the circumstances a person of ordinary care and prudence [would] entertain an honest and strong suspicion that a crime has been committed.

 

State v. Horner, 617 N.W.2d 789, 795 (Minn. 2000) (citations omitted).

            Appellant argues that weather conditions made it impossible to know, especially without administering a sobriety test, whether his watery eyes, slurred speech, and stumbling were attributable to alcohol or the weather.  A sobriety test is not necessary to determine probable cause.  Comm’r of Pub. Safety v. Shewchuk, 412 N.W.2d 434, 436 (Minn. App. 1987).  Rather, each case should be decided on its own circumstances.  Id.

The officer relied on his observations of appellant’s actions, the information relayed to him by the tow truck driver, and appellant’s statement that he should not have been driving to determine that there was probable cause to arrest. 

Information provided by witnesses may be used to provide probable cause.  See Eggersgluss v. Comm’r Pub. Safety, 393 N.W.2d 183, 184-85 (Minn. 1986).  Additionally, the officer’s five years of training and experience lend credibility to his observations and conclusion that appellant was intoxicated.  See Andersen v. Comm’r of Pub. Safety, 410 N.W.2d 17, 19 (Minn. App. 1987) (stating that a court should consider a scene from the viewpoint of a “prudent” police officer).  Both the officer and the tow truck driver observed that appellant had bloodshot, watery eyes, slurred speech, and was unsteady.  These are recognized indicia of intoxication.  See Horner, 617 N.W.2d at 796 (noting the red eyes and slurred speech of the defendant); State v. Olson, 342 N.W.2d 638, 640 (Minn. App. 1984) (noting defendant’s glassy eyes and inability to count backwards or recite the alphabet). And although the weather might be an exculpatory explanation, the officer’s task in determining probable cause was

to make a practical, common-sense decision in light of all the circumstances, including innocent behavior * * * which may later be shown to have exculpatory explanations.

 

Olson, 342 N.W.2d at 640.  Here, only appellant was having difficulty speaking and walking, indicating to the officer that it was alcohol, not weather, which affected appellant.

Appellant’s behavior, observed by both the officer and the tow truck driver, was indicia of intoxication sufficient to constitute probable cause that appellant had been driving under the influence.

Finally, appellant argues that his statement that he knew he should not have been driving cannot be used to support probable cause because he was “already under arrest for all practical purposes.”  Appellant was arrested after he made this statement.  Additionally, appellant was not under de facto arrest when making the statement.  The officer only spoke with appellant; nothing in his actions would have caused a “reasonable person” to “[believe] that he or she was [not] free to leave.”  See State v. Blacksten, 507 N.W.2d 842, 846 (Minn. 1993) (holding that a defendant who was ordered to the ground at gunpoint, handcuffed, and put in a squad car was not “free to leave”).  Appellant also argues that the statement might have meant that appellant knew he should not be driving because his license was revoked.  The facts do not show that the officer knew of the earlier revocation.  The officer believed appellant was referring to his intoxication and was free to rely on the statement to determine probable cause.

Appellant’s behavior combined with his own statement provided the officer  probable cause that appellant was driving under the influence.  Therefore, the arrest and revocation of appellant’s driver’s license were valid.

Affirmed.



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