This opinion will be unpublished and

may not be cited except as provided by

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






John David Tomes, petitioner,





Commissioner of Public Safety,



Filed March 19, 2002


Harten, Judge


Kandiyohi County District Court

File No. 3401708


John E. Mack, Mack & Daby, P.A., 26 Main Street, P.O. Box 302, New London, MN 56273 (for appellant)


Mike Hatch, Attorney General, Sean R. McCarthy, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106 (for respondent)


            Considered and decided by Anderson, Presiding Judge, Harten, Judge, and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N



Following an implied consent hearing, appellant challenges a district court order sustaining the revocation of his driver’s license.  Appellant contends that his arrest and subsequent intoxilyzer test were unlawful because the deputy sheriff did not have authority to seize appellant in his grandparents’ home.  Appellant also argues that, because he produced evidence of post-accident drinking, the district court erred by concluding that he had an alcohol concentration greater than .10 at the time of the accident.  Because we conclude that appellant’s sister had apparent authority to consent to the deputy’s entry into her grandparents’ home and that appellant failed to prove that but for his post-accident alcohol consumption, his alcohol concentration would have been less than .10 at the time of the accident, we affirm.



 Shortly after midnight, Kandiyohi County deputy sheriff Richard Rolffs received a call regarding a car submerged in a drainage ditch on County Road 7.  Rolffs went to the scene and met with several witnesses.  They explained that, after driving his car into the ditch, appellant John Tomes went to the home of Charles and Angela Miedema for help.  The witnesses also told Rolffs that appellant said he had been drinking since that afternoon and was drunk.  Appellant had asked them not to call the police or his parents.  The witnesses also informed Rolffs that appellant smelled of alcohol, staggered as he walked, had slurred speech, and was confused about where he was and where he lived.  Charles Miedema gave appellant a ride to his parents’ home and Angela Miedema, suspecting a possible driving while under the influence (DWI) violation, telephoned the Renville County sheriff.

  After receiving the phone call, Renville County deputy sheriff Steven Elskamp went to appellant’s parents’ home.  Appellant’s father, Dave Tomes, told Elskamp that Michelle Tomes, appellant’s adult sister, had taken appellant across the street to sleep on the couch in his grandparents’ home.  Michelle Tomes drove across the street to get appellant; Elskamp followed in his car.  Appellant took an intoxilyzer test at 2:49 a.m. and registered a .16 alcohol concentration level.  Elskamp arrested appellant for DWI and the commissioner of public safety revoked appellant’s driver’s license.

Appellant petitioned for district court review of his license revocation.  At the implied consent hearing, Michelle Tomes testified that, after arriving at her grandparents’ home, she attempted to block the door to prevent Elskamp from entering and that, although she asked Elskamp to remain in the kitchen, he brushed past her, found appellant, and brought him outside.  Elskamp, on the other hand, testified that Ms. Tomes went into the house, returned, opened the door, and asked him to come inside to awaken appellant.  The district court found Elskamp’s testimony credible. 

Appellant offered a post-accident alcohol consumption defense, testifying that he consumed three to five beers before the accident and four to six beers after the accident.  The district court sustained the commissioner’s revocation.  This appeal followed.


1.         Consent to Enter Appellant’s Grandparents’ Home

The Fourth Amendment of the United States Constitution and Article 1 of the Minnesota Constitution protect persons and their homes against unreasonable searches and seizures.  State v. Miranda, 622 N.W.2d 353, 357 (Minn. App. 2001).  A warrantless search or seizure is per se unreasonable, subject to three recognized exceptions:  (1) a search incident to a lawful arrest, (2) a search conducted because of exigent circumstances, and (3) a search conducted with consent.  Id.  Whether a person consented is a factual finding that we will not disturb unless the finding is clearly erroneous.  Id. at 358.  A person with “common authority” or other sufficient relationship to the premises may consent to a search.  State v. Pilot, 595 N.W.2d 511, 519 (Minn. 1999) (quotation omitted).

Appellant argues that Michelle Tomes did not consent to the warrantless entry of his grandparents’ home in that she never told the deputy to come into the home but instead attempted to block his entrance.  This argument rests on Ms. Tomes’ testimony, however, and overlooks the district court’s finding that credited Elskamp’s contrary testimony, to-wit, that Ms. Tomes invited him to enter the home and awaken appellant.  We defer to the district court’s determination of witness credibility, see State v. Dickerson, 481 N.W.2d 840, 843 (Minn. 1992), and hold that its credibility finding here was not clearly erroneous.    

  Appellant also argues that Michelle Tomes was a guest of her grandparents, did not have “common authority” over the premises, and lacked capacity to legally consent to a search.  See State v. Hatton, 389 N.W.2d 229, 233 (1986) (guests may not consent to a search when their authority is inferior to that of their hosts), review denied (Minn. Aug. 13, 1986)

The authority which justifies the third-party consent * * * rests * * * on the mutual use of the property by persons generally having joint access or control for most purposes * * * .


United States v. Matlock, 415 U.S. 164, 171 n.7, 94 S. Ct. 988, 993 n.7 (1974).  Michelle Tomes did not live with her grandparents and had no possessory interest in the home.  She lived three hours away and was visiting for the weekend.  Given these facts, it would appear that Ms. Tomes did not have “joint access or control” of the home and therefore no authority to consent to a search.  Nevertheless, 

[w]here common authority does not actually exist, consent to entry is still valid where, under an objective standard, an officer reasonably believes the third party has authority over the premises and could give consent to enter.


State v. Thompson, 578 N.W. 734, 740 (Minn. 1998).  A person need not live at a residence to have apparent authority.  See id. (guest may have apparent authority to consent to a search). 

Here, as a granddaughter, Michelle Tomes was more than a mere guest.  She testified that she was able to come and go on her grandparents’ property without their permission and had done so, “since [she] could walk.”  According to Elskamp, she showed no hesitation in entering the home or inviting him inside.  As an adult, Ms. Tomes would have comprehended the probable consequence of inviting Elskamp into her grandparents’ home under the circumstances.  We conclude that Ms. Tomes’ actions provided an objective basis for Elskamp to reasonably believe that she had authority to consent to a search.  See id. (party who was more than casual visitor, had run of the property, and was old enough to understand seriousness of entry had apparent authority to consent to search).

            Accordingly, the evidence supports a finding that Michelle Tomes had apparent authority to consent to the deputy’s entry; the district court’s finding that Ms. Tomes gave valid consent is not clearly erroneous.

2.         Post-Accident Alcohol Consumption

            Appellant argues that his post-accident alcohol consumption provides a successful affirmative defense.  To establish this defense, appellant must show both that his .16 reading was due to post-accident drinking and that, without post-accident beer consumption, his alcohol concentration would have been less than .10 at the time of the accident.  See Dutcher v. Comm’r of Pub. Safety, 406 N.W.2d 333, 336 (Minn. App. 1987).  Establishment of an affirmative defense is a factual finding that we will not disturb unless clearly erroneous.  See id.

Appellant testified that he drank four to six beers after the accident and three to five beers before the accident.  He argues that he produced uncontested facts that, but for this post-accident consumption, his blood-alcohol concentration would not have been above .10 at the time of the accident.  But the only evidence supporting appellant’s argument is his own testimony that he drank at most five beers before the accident, an amount he claims would not cause a .10 alcohol concentration in a person his size. 

There is evidence in the record showing that appellant was intoxicated at the time of the accident.  Charles Miedema testified that when appellant arrived at his home he “was staggering around.  He couldn’t remember an awful lot at all.  * * * [T]here was the odor of alcohol.”  Mr. Miedema also testified that appellant asked him not to call police.  Angela Miedema testified that appellant had slurred speech, could not remember how to get to his parent’s home, and bragged that he “drank all day and then was on his way home.”   Based on this evidence, the district court found that appellant failed to show that without the post-accident consumption his alcohol concentration would have been under .10 at the time of the accident.  We agree.  The district court’s decision that appellant failed to establish an affirmative defense of post-accident alcohol consumption is not clearly erroneous.  See Dutcher, 406 N.W.2d at 336 (the district court is in the best position to weigh evidence and determine credibility of witnesses).