This opinion will be unpublished and

may not be cited except as provided by

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








Steven Allen Miller, petitioner,





Commissioner of Public Safety,



Filed December 18, 2001


Robert H. Schumacher, Judge


Ramsey County District Court

File No. C901783



Brent S. Schafer, Gerald Miller & Associates, P.A., 210 North Second Street, Minneapolis, MN 55401 (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 Schumacher, Presiding Judge, Klaphake, Judge, and Peterson, Judge.

U N P U B L I S H E D†† O P I N I O N


††††††††††† Appellant Steven Allen Miller challenges the district courtís order sustaining the revocation of his driverís license.† We affirm.


Officers responding to a medical distress call found Miller intoxicated, sleeping inside his vehicle.† He was arrested and asked to submit to a blood-alcohol test.† He refused and his driverís license was consequently revoked.† Miller petitioned the district court for a hearing.† The district court sustained the revocation.† Miller now appeals.


Miller contends he was not in actual physical control of his vehicle for purposes of the implied consent statute and that the arresting officers did not have probable cause to believe he was in physical control.† This court, however, has held that where revocation is based on refusal to submit to testing, the scope of review is limited to those issues permitted by statute.[1]Flamang v. Commír of Pub. Safety, 516 N.W.2d 577, 580 (Minn. App. 1994), review denied (Minn. July 27, 1994).† These issues include whether the officer had probable cause to believe the person was in physical control of the vehicle while intoxicated, driving while intoxicated, and whether statutory preconditions were met, whether the person was properly advised, and whether the person refused to permit the test.† Id.

Because Millerís revocation is based on the refusal to act on the lawful request of an officer, the question of whether he was in actual physical control of his vehicle is irrelevant and outside the permissible scope of judicial review.† See id.† Despite Millerís statutory and public policy arguments to the contrary, we find Flamang is controlling and conclude that the only question before this court is whether there was probable cause to believe that Miller was in actual physical control of his vehicle.

A determination of probable cause is a mixed question of fact and of law. †Clow v. Comm'r of Pub. Safety, 362 N.W.2d 360, 363 (Minn. App. 1985), review denied (Minn. Apr. 26, 1985).† Because the trial court has the opportunity to judge the credibility of the witnesses, findings of fact will not be set aside unless clearly erroneous.† Thorud v. Comm'r 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. Comm'r of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986).† After the facts are determined, this court must make a legal determination as to whether probable cause existed.† Flamang, 516 N.W.2d at 580.†

A police officer must have probable cause to believe that one is driving, operating, or in physical control of a motor vehicle in violation of Minn. Stat. ß 169A.20 in order to invoke the implied consent law.† Minn. Stat. ß 169A.51, subd. 1(b) (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. Comm'r of Pub. Safety, 587 N.W.2d 639, 641 (Minn. 1998) (citations and quotations omitted).†

The term "physical control" is more comprehensive than either "drive" or "operate," and it is given the broadest possible effect.† Flamang, 516 N.W.2d at 580.†

[P]hysical control is meant to cover situations where an inebriated person is found in a parked vehicle under circumstances where the car, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property.


State v. Starfield, 481 N.W.2d 834, 837 (Minn. 1992).

Actual operation or intent to operate a vehicle has no bearing on whether an individual is in physical control of the vehicle.† Id.; see, e.g., Palme v. Comm'r of Pub. Safety, 366 N.W.2d 343 (Minn. App. 1985), review denied (Minn. June 24, 1985) (physical control of vehicle when appellant claimed he had gotten into friend's truck only to sleep, had never planned to drive, and did not know keys were in cab); Dufrane v. Comm'r of Pub. Safety, 353 N.W.2d 705 (Minn. App. 1984) (probable cause based on appellant's upright presence in front seat behind wheel and officer's testimony that appellant admitted driving car earlier); Kozak v. Comm'r of Pub. Safety, 359 N.W.2d 625 (Minn. App. 1984) (physical control of vehicle when appellant found asleep lying on front seat of his vehicle, and it was not known whether keys were in ignition, driver's pocket, or on seat); Sens v. Comm'r of Pub. Safety, 399 N.W.2d 602 (Minn. App. 1987) (probable cause when officer discovered driver asleep on front seat of vehicle, even though driver had tossed ignition keys in back of vehicle); Vivier v. Comm'r of Pub. Safety, 406 N.W.2d 587 (Minn. App. 1987) (physical control when appellant was found sitting in driver's seat, keys were in his pocket, and he owned vehicle).†

Here, the totality of the circumstances indicates that the arresting officers had probable cause to believe Miller was in physical control of his vehicle.† Miller was found inside the vehicle with the keys in the ignition.† Further, the car was not in its parking space, but had been somehow backed out into the main driveway area of the garage.


[1] Flamang analyzed the scope of review issue in accordance with Minn. Stat. ß 169.123, subd. 6 (1994).† This statute has since been amended and recodified as Minn. Stat. ß 169A.53 subd. 3 (2000).