This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-01-1378

 

Michael James Rivet, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

 

Filed February 26, 2002

Affirmed

Toussaint, Chief Judge

 

Ramsey County District Court

File No. C2012570

 

Paul W. Rogosheske, Thuet, Pugh, Rogosheske & Atkins, Ltd., 222 Grand Avenue West, Suite 100, South St. Paul, MN 55075 (for appellant)

 

Mike Hatch, Attorney General, Sheila Marilyn Fitzgerald, Office of the Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

 

†††††††††† Considered and decided by Toussaint, Chief Judge, Randall, Judge, and Stoneburner, Judge.

U N P U B L I S H E D† O P I N I O N

 

TOUSSAINT, Chief Judge

 

††††††††††† Michael Rivet challenges the decision by the district court sustaining his driverís license revocation under the implied consent law.† Because the officer had a reasonable basis for suspecting Rivet of driving while intoxicated, the seizure was lawful, and we affirm.

FACTS

††††††††††† At 2:36 a.m. on February 28, 2001, appellant Michael Rivet was seated in a vehicle off and to the side of a public road.† The vehicle was stuck in a snowbank.† Its lights were on and the front tires were spinning when Officer Ferrian pulled over behind the vehicle.† The officer activated his overhead lights, directed his spotlight on the driverís side, and called in his location.† Meanwhile, Rivet got out of his vehicle and started waving his hands and swaying, apparently trying to get the officerís attention.† Rivetís actions focused the officer on possible alcohol impairment.† Intending that Rivet remain safely in the vehicle until he was able to assist him, the officer stepped out of his squad car and ordered Rivet to remain in his vehicle.† The officer testified that he did not think Rivet was free to leave.†

††††††††††† When the officer finished calling in his location, he approached Rivet and asked for his identification, insurance and what had happened.† While Rivet continued to look for proof of insurance, he spoke with the officer who noticed the smell of alcohol, bloodshot and watery eyes, and movements suggesting impairment.† The officer then asked Rivet to step out of the vehicle.† The officer then observed Rivetís poor balance, unsteadiness, and tendency to sway.† The officer pat-searched Rivet, placed him in handcuffs, and administered a PBT test, which Rivet failed.† The assisting squad transported Rivet back to the station where he was read the implied consent advisory.† An alcohol concentration of .204 was recorded.† The district court subsequently issued an order sustaining the revocation of Rivetís driving privileges.†††

D E C I S I O N

††††††††††† Whether the officerís conduct was justified under the circumstances is a legal determination for this court.† See Berge v. Commír of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985) (determining whether officerís observations as a matter of law provided adequate basis for stop).

††††††††††† It is not a seizure under the Fourth Amendment for an officer to approach and talk to a driver seated in a parked vehicle.† Paulson v. Commír of Pub. Safety, 384 N.W.2d 244, 245 (Minn. App. 1986).† In the performance of his duties, an officer has not only the right, but also a duty to make a reasonable investigation of vehicles parked along roadways, even if legally parked, to offer such assistance as might be needed and to inquire into the physical condition of persons in vehicles.† Id. (reasonable to approach legally parked vehicle running with lights on at 1:15 a.m.); Kozak v. Commír of Pub. Safety, 359 N.W.2d 625, 628 (Minn. App. 1984) (citing State v. Vohnoutka, 292 N.W.2d 756 (Minn. 1980)) (reasonable to investigate car parked on highway shoulder).

††††††††††† Rivet argues that his action in exiting the vehicle and waving to the officer and the officerís subsequent order that Rivet return to his car, transformed the investigation into an impermissible stop.†

††††††††††† While the officer initially stopped to investigate and to assist with a stuck vehicle, Rivetís actions upon exiting the vehicle shifted the officerís focus.† The waving and swaying suggested driving while intoxicated.† At that point, the officerís order that Rivet return to his car could constitute a seizure.† See State v. Dezso, 512 N.W.2d 877, 880-81 (Minn. 1994) (multiple requests to see defendantís wallet constituted show of police officerís authority); State v. Day, 461 N.W.2d 404, 407 (Minn. App. 1990) (summoning by police officer requiring individual to approach squad car constitutes seizure), review denied (Minn. Dec. 20, 1990).† The seizure, however, was based on a reasonable suspicion of criminal activity.† The officer had observed Rivet early in the morning, behind the wheel of a stuck, but running vehicle, trying to dislodge it from a snowbank.† He also observed Rivet outside of his vehicle waving and swaying.† In short, the officer observed sufficient facts to justify a seizure to further investigate for possible driving while intoxicated.

Affirmed.

 

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