This opinion will be unpublished and

may not be cited except as provided by

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







John D. Broten,





Commissioner of Public Safety,



Filed December 21, 2001


Willis, Judge


Washington County District Court

File No. C60159



Jeffrey R. Anderson, Patrick W. Noaker, Reinhardt and Anderson, E-1000 First National Bank Bldg., 332 Minnesota Street, St. Paul, MN  55101 (for appellant)


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


Appellant challenges the revocation of his driver’s license, arguing that the district court erred by determining that he was in physical control of a motor vehicle within the meaning of Minnesota’s implied-consent law.  Because the district court did not err, we affirm. 



             The facts are undisputed.  On December 10, 2000, appellant John D. Broten was arrested for being in physical control of a motor vehicle while under the influence of alcohol.  See Minn. Stat. § 169.121, subd. 1(a) (1998).[1]  At approximately 1:10 a.m. on that date, while Minnesota State Trooper Dean Grothem was on patrol in the City of Forest Lake, he drove past a bar and saw a person, later identified as Broten, get into a pickup truck that was parked in front of the bar.  Over the next 20 minutes, Trooper Grothem drove past the vehicle several times and noticed that the person appeared to be asleep or passed out in the truck.   

            Trooper Grothem finally approached the truck on foot, looked inside, and saw Broten sitting asleep behind the steering wheel.  When Broten did not respond to a knock on the window, Trooper Grothem opened the driver’s door slightly and identified himself.

            When Broten awoke, Trooper Grothem asked him what he was doing in the vehicle.  Broten responded that he was waiting for a ride from a friend.  Trooper Grothem asked where the keys to the vehicle were, and Broten replied that they were in his pocket.  Believing that Broten was intoxicated, Trooper Grothem performed field-sobriety tests and transported Broten to the police station.  A breath test showed that Broten had an alcohol concentration of 0.17.  Grothem arrested Broten for being in physical control of a motor vehicle while under the influence of alcohol, a violation of Minn. Stat. § 169.121, subd. 1(a).  Respondent Commissioner of Public Safety revoked Broten’s driving privileges pursuant to the implied-consent law. See Minn. Stat. § 169.123 (1998).[2]  Broten petitioned for judicial review of the revocation, and the district court granted a hearing.  The only issue litigated at the hearing was whether Broten was in physical control of a motor vehicle within the meaning of Minn. Stat. § 169.123, subd. 2(a). 

At the hearing, Broten presented evidence that (1) he had been drinking at a bar on December 10, 2000, with a friend, Richard Zeller; (2) he and Zeller determined that they should not drive themselves home; (3) Zeller’s girlfriend, Tara Hopkins, came to the bar to drive Broten and Zeller home; (4) when Hopkins arrived, Broten told Hopkins and Zeller that he needed to lock his truck and asked them if they would pick him up at the truck, which was parked in front of the bar; and (5) he fell asleep in his truck while he waited for Hopkins and Zeller to arrive. 

The district court sustained the revocation of Broten’s driver’s license, finding that he was in physical control of a motor vehicle.  This appeal follows. 


Broten argues that the district court erred by determining that he was in physical control of his truck.  Application of a statute to undisputed facts is a question of law, which this court reviews de novo.  See Almor Corp. v. County of Hennepin, 566 N.W.2d 696, 700 (Minn. 1997) (holding that purely legal issue is reviewed de novo).  The district court’s conclusions of law “will be overturned only upon a determination that the [district] court has erroneously construed and applied the law to the facts of the case.”  Dehn v. Comm’r of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986) (citation omitted). 

At the time of Broten’s arrest, the implied-consent statute provided: 

Any 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(a) (1998).[3]

  Relying on State, City of Falcon Heights v. Pazderski,352 N.W.2d 85 (Minn. App. 1984), Broten contends that he was not in physical control of his truck because the circumstances surrounding his presence show no intent to operate the vehicle.   In Pazderski, the defendant was found sleeping in the front seat of his car, which was parked in his driveway.  Id. at 86-87.  This court determined that because the keys were not in the ignition and there was no indication that the defendant intended to operate the vehicle, the defendant was not in physical control of his car.  Id. at 87.  Broten argues that, like the defendant in Pazderski, he was only using his vehicle as a place to rest and there was no indication that he intended to operate it.  Therefore, Broten claims that he was not in physical control of his truck. 

Broten concedes that Minnesota caselaw establishes a presumption that an individual is in physical control if the individual is found in a vehicle and, without too much difficulty, could operate the vehicle and become a source of danger.  See State v. Starfield, 481 N.W.2d 834, 839 (Minn. 1992) (holding that state need not prove that defendant was in motor vehicle for purpose of operating it and operability is not an element in determining if defendant was in physical control of vehicle).  But Broten argues that this presumption can be rebutted with evidence of the circumstances surrounding the individual’s presence in or near a vehicle, including evidence of an intent not to operate the vehicle.  See, e.g., id. at 838 (“Mere presence in or about the vehicle is not enough for physical control; it is the overall situation that is determinative.”); see also Pazderski,352 N.W.2d at 88.   Broten contends that because he was only resting in his truck until his friends came to pick him up and the keys to the ignition were in his pocket, the evidence shows that he did not intend to operate his truck.  Thus, Broten asserts, he has rebutted any presumption that he was in physical control.  We disagree. 

First, Pazderski is limited to its facts and has been applied to no case where the defendant was parked in a location other than his own driveway.  See, e.g., Palme v. Comm’r of Pub. Safety, 366 N.W.2d 343, 345 (Minn. App. 1985) (holding that defendant was in physical control of vehicle when he was found asleep in vehicle next to bar with keys on seat next to him so that he could at any time start vehicle and attempt to drive home), review denied (Minn. June 24, 1985); see also Starfield, 481 N.W.2d at 837 (finding physical control when vehicle was located in snow-filled ditch because “the intoxicated individual might proceed on his journey and attempt to get home”) (citation omitted).  Broten was parked in front of a bar, not in his own driveway.

Second, a number of cases decided since Pazderski have determined that intent is not dispositive in determining whether a person is in physical control of a vehicle.  See, e.g., Starfield, 481 N.W.2d at 839 (stating that “[a]n intent to operate is not an element of the criminal offense”); see also Palme, 366 N.W.2d at 344-45 (finding physical control when defendant claimed he had entered friend’s truck only to sleep, did not intend to drive, and did not know the keys were in the cab). 

The term “physical control” is more comprehensive than the terms “drive” or “operate”; the term should be given the broadest possible effect, and the intent of the statute is to prevent intoxicated persons from getting into vehicles except as passengers.  Starfield, 481 N.W.2d at 836.  Further,

[p]hysical 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. Comm’r of Pub. Safety, 353 N.W.2d 705, 707 (Minn. App. 1984) (citations omitted). 

            At the implied-consent hearing, the district court relied on LaBeau v. Comm’r of Pub. Safety, 412 N.W.2d 777 (Minn. App. 1987), in determining that Broten was in physical control of his vehicle.  See LaBeau,412 N.W.2d at 780 (stating that defendant was in physical control of hisvehicle when found in driver’s seat and keys were in glove compartment).  The district court found that:  (1) Broten was the registered owner of the vehicle, (2) Broten was in the driver’s seat of the vehicle, (3) the vehicle was parked on a public street, and (4) the keys to the vehicle were in Broten’s pocket.  Broten does not dispute these findings.   Because the district court correctly applied the law to these facts, it did not err by determining that Broten was in physical control of his vehicle.



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

[1] Recodified at Minn. Stat. § 169A.20 (2000).  See 2000 Minn. Laws ch. 479, art. 2, § 9 (providing that enactment of § 169A.20 is effective January 1, 2001). 

[2] Recodified at Minn. Stat. §§ 169A.50-.53 (2000).  See 2000 Minn. Laws ch. 479, art. 2, § 9 (providing that enactment of §§ 169A.50-.53 is effective January 1, 2001).

[3]Test results indicating an alcohol concentration of .10 or higher may result in revocation of the offender’s driving privileges.  See Minn. Stat. § 169.123, subd. 4(d), (e) (1998).