This opinion will be unpublished and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

C8-01-1525

 

David Eugene Thomson, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

 

Filed May 7, 2002

Affirmed

Randall, Judge

 

Mower County District Court

File No. C2-00-1388

 

Brandon V. Lawhead, Lawhead Law Offices, 301 South Main Street, Austin, MN 55912 (for appellant)

 

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

 

Considered and decided by Randall, Presiding Judge, Lansing, Judge, and Klaphake, Judge.

U N P U B L I S H E D O P I N I O N

R.A. RANDALL, Judge

Appellant challenges the district court's affirmance of the Commissioner of Public Safety's decision to cancel appellant's driver's license. Appellant argues that his consumption of NyQuil, which contains alcohol, does not constitute a violation of his license requiring total abstinence from alcohol consumption. We affirm.

FACTS

The parties do not dispute the relevant facts. In the early morning hours of July 10, 2000, appellant's vehicle ran out of gasoline while he was driving a friend home. Appellant got out of the car and, while his friend remained in the vehicle, began walking from farmhouse to farmhouse looking for someone to sell him gasoline. In the meantime, one of the homeowners reported to the Mower County Sherriff's Department that a suspicious person was in the area. Two deputies drove to the homeowner's residence and learned that the homeowner had confronted a person walking out of his garage with a gasoline can. One of the deputy's reports indicates that the suspicious person was later identified as appellant. Appellant denies that he took gasoline from the homeowner. Instead, appellant testified that he purchased gas from "a couple of nice guys" who gave him a ride back to his car.

After leaving the homeowner's residence, the deputies discovered a stalled vehicle on the highway in the area, which turned out to be appellant's vehicle. As one of the deputies was speaking to appellant's friend, appellant arrived back at the scene. According to the deputy's report, appellant "pulled up with two subjects and a gas can." The deputy spoke with appellant and noticed that appellant "smelled moderately of alcoholic beverage." Appellant consented to field sobriety tests, which he performed in a satisfactory manner. Then the deputy administered a portable breath test that yielded a low reading, .013. While running a driver's license check, the deputy discovered a total abstinence restriction on appellant's license.[1] Appellant's restricted license is what is commonly referred to as a "B card." See State v. Tofte, 563 N.W.2d 322, 324 (Minn. App. 1997) (explaining "B card" has been construed to mean that driving privilege is conditioned on abstaining from drugs or alcohol and any violation of condition is ground for cancellation or denial of driving privileges). The deputy cited appellant for this violation and impounded his license plates.

The Commissioner of Public Safety reviewed the deputies' reports and cancelled appellant's driving privileges for violating the total abstinence restriction. Appellant petitioned the district court for reinstatement pursuant to Minn. Stat.  171.19 (2000). In response to the commissioner's interrogatories, appellant stated that he had consumed NyQuil and admitted NyQuil contains approximately 10% alcohol. Based on these answers, the commissioner moved the district court for summary judgment. At the hearing on this matter, appellant testified that he had consumed NyQuil because he was suffering from a bad case of bronchitis. He did admit that, instead of complying with the product's instructions, he consumed the whole bottle. Following the hearing, the court determined that appellant's NyQuil consumption violated his total abstinence restriction. Relying on Igo v. Comm'r of Pub. Safety, 615 N.W.2d 358 (Minn. App. 2000), review denied (Minn. Oct. 17, 2000), the court reasoned that the commissioner had demonstrated that appellant consumed NyQuil (based on appellant's own admission), NyQuil contains alcohol, and appellant's breath results indicated that he had some alcohol in his system. The court denied the commissioner's request for summary judgment, however, because appellant also raised a claim regarding the legality of the stop.

Following a hearing on the stop issue, the district court reiterated its decision that appellant had violated his total abstinence restriction by consuming NyQuil and concluded that the deputies legally stopped appellant. Appellant now challenges the district court's determination that appellant's NyQuil consumption constitutes a violation of his total abstinence restriction.

D E C I S I O N

The Commissioner of Public Safety can deny, cancel, or revoke a person's driver's license if the commissioner has good cause to believe that it would be inimical to public safety or welfare for the person to operate a motor vehicle. Thorson v. Comm'r of Pub. Safety, 519 N.W.2d 490, 493 (Minn. App. 1994). A person whose driver's license has been denied, canceled, or revoked may petition the district court for reinstatement. Id. The commissioner must present "some evidence" to demonstrate there was "good cause" to believe the driver violated a total abstinence restriction. Plaster v. Comm'r of Pub. Safety, 490 N.W.2d 904, 906 (Minn. App. 1992).

Appellant argues that the district court erred in determining that appellant's consumption of NyQuil violated the total abstinence restriction on his driving privilege. Appellant contends that the abstinence restriction was intended to prevent him from drinking traditional alcoholic beverages, not consumption of alcohol in any form.

An alcoholic beverage is defined as "any beverage containing more than one-half of one percent of alcohol by volume." Minn. Stat.  340A.101, subd. 2 (2000). Although NyQuil can be purchased by persons under 21 years of age, it does contain 10% alcohol, which fits the definition of an "alcoholic" beverage. The commissioner shall cancel a person's driver's license if the commissioner has sufficient cause to believe that the person consumed alcohol in violation of a total abstinence restriction. See Minn. R. 7503.1300, subp. 3 (2001) (stating commissioner shall cancel person's driver's license if commissioner has sufficient cause to believe person consumed alcohol since documented abstinence date). This rule has the force and effect of law. See Minn. Stat.  14.38, subd. 1 (2000). The rule does not limit the alcohol source; instead the rule simply refers to "alcohol" consumption. When words of a statute are clear and unambiguous, this court must give effect to their plain meaning. Minn. Stat. 645.16 (2000).

In Plaster, this court recognized the North Dakota Supreme Court's definition of an intoxicating liquor, which that court defined as "any liquid which, when taken into the body, will intoxicate," including:

any liquid containing alcohol that could conceivably be consumed for the purposes of intoxication, whether it is beer, whisky, cough syrup or janitor-in-a-drum.

Plaster 490 N.W.2d at 907 quoting Thornton v. N.D. State Highway Comm'r, 399 N.W.2d 861, 863 (N.D. 1987) (emphasis added). In Thornton, the court determined that the defendant's consumption of cough syrups containing 60% alcohol and 25% alcohol constituted a violation under the plain meaning of North Dakota's driving-under-the-influence statute and upheld the defendant's license suspension. Thorton 399 N.W.2d at 862-63. Courts in other states have made similar determinations. See, e.g., Commonwealth v. Fick, 571 A.2d 1091, 1092 (Pa. Super. Ct. 1990) (recognizing driving under influence of alcohol is not limited to alcohol in traditional sense and law does not excuse persons who drive under influence of over-the-counter medications that contain alcohol, including NyQuil, because such items affect driving ability to same degree as liquor and controlled substances); Lambert v. State, 694 P.2d 791, 793-94 (Alaska Ct. App. 1985) (concluding NyQuil and terpin hydrate, which contain alcohol, are intoxicating liquors under Alaska's statute's plain meaning and could serve as basis for defendant's driving-while-intoxicated conviction).

Minn. R. 7503.1300 subp. 3's reference to "alcohol," read in conjunction with the statutory definition of an alcoholic beverage, is unambiguous. Additionally we find the North Dakota Supreme Court's language in Thornton instructive. Because NyQuil contains more than .5% alcohol by volume it falls within the meaning of an alcoholic beverage. However, we are not prepared to hold, as the state seems to urge, that a person could never present a plausible defense to a B-card violation by pointing out that his drug and/or alcohol consumption was pursuant to bona fide medical treatment. For instance, a driver could at least attempt a defense that he had a bona fide prescription from a physician and took the medication under a controlled setting. We do not have that issue before us. Thus we do not indicate what might or might not be a valid defense in future cases. We simply do not accept the state's argument that no rational defense to the presence of alcohol (while holding a B card) could ever be fashioned.

Our decision in this case is guided by the fact that appellant chose to drive an automobile after he had consumed a product that he knew contained alcohol and that he actually consumed NyQuil while driving. He was not under a physician's care, the NyQuil was not prescribed to him. He did not follow the bottle's recommended dosage; instead he consumed the entire bottle in several hours. Appellant was out all day with friends and was around people who were consuming alcohol. The circumstances in which he consumed the NyQuil and the events that transpired that day do not support appellant's contention that this was a case of incidental medication consumption. Instead, the facts could lead to the conclusion that appellant consumed the NyQuil for the purpose of intoxication. These facts and the facts in this court's decision in Igo v. Comm'r of Pub. Safety leads us to conclude that the district court did not err in upholding the commissioner's decision to cancel appellant's driver's license. Igo v. Comm'r of Pub. Safety, 615 N.W.2d 358 (Minn. App. 2000), review denied (Minn. Oct. 17, 2000). In Igo, this court upheld the commissioner's decision to cancel a person's driver's license where the person had a total abstinence restriction, and admitted he consumed three to four cans of nonalcoholic beer. The parties stipulated that the nonalcoholic beer contained .37% alcohol, and the results of the driver's breath test were between .004 and .055, indicating a presence of alcohol in his system. Id. at 360-63.

Appellant admits that he consumed NyQuil on the evening he was issued his citation. He testified that he "figured throughout the night [he] took like about six drinks off the bottle." The record does not reflect the size of the NyQuil bottle, but appellant testified that he finished off the bottle while he was walking around looking for gasoline. The recommended dosage for NyQuil is 30 ml up to four times per day. Appellant admitted that he did not follow the dosage instructions. The NyQuil label instructs that its inactive ingredients include alcohol and that one should use caution when driving a motor vehicle if one has consumed the product. We note that the 10% alcohol concentration in NyQuil is well over and above the .37% alcohol concentration of the nonalcoholic beer in Igo. A 10% concentration is approximately "20 proof," which is stronger than beer and approaches the alcohol content of wine. Most importantly, the record reflects that appellant chose to get behind the wheel of an automobile after consuming enough NyQuil to register a positive reading on a portable breath test.

These facts demonstrate that the commissioner presented sufficient evidence to show there was good cause to believe appellant violated the total abstinence restriction on his driver's license. We conclude that the district court's decision to uphold the commissioner's cancellation of appellant's driver's license was not arbitrary or capricious.

Affirmed.



[1] The commissioner cancelled appellant's driver's license in 1981 following four alcohol-related driving convictions. Appellant's driving privileges were reinstated in 1999 under the condition that he abstain from using alcohol at any time for the remainder of his life.