This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2000).
IN COURT OF APPEALS
State of Minnesota,
Kevin Michael Roy,
Clay County District Court
File No. T0012830
Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103; and
Lisa N. Borgen, Clay County Attorney, Stephanie J. Borgen, Assistant County Attorney, 807 11th Street North, P.O. Box 280, Moorhead, MN 56561-0280 (for respondent)
Jeffrey D. Skonseng, Krekelberg & Skonseng, P.L.L.P., 213 South Mill Street, Fergus Falls, MN 56537 (for appellant)
Considered and decided by Halbrooks, Presiding Judge, Anderson, Judge, and Hanson, Judge.
Appellant challenges his conviction of driving while impaired, claiming that the trial court erred in not suppressing the evidence resulting from an allegedly illegal seizure of appellant. Appellant also argues that the trial court erred in relying on the results of the Intoxilyzer test because the test was not completed within two hours after he operated a motor vehicle. Because appellant was lawfully seized based on articulable suspicion to believe that appellant had been driving while impaired, and because appellant did not consume additional alcohol prior to the administration of the Intoxilyzer test, we affirm.
Appellant Kevin Roy played bingo and drank beer at the Barnesville, Minnesota VFW on the night of March 12, 2001. He left the VFW at 11:30 p.m. to drive home, a distance of approximately two and one-half to three miles. After driving his vehicle into a ditch, appellant walked south on Front Street toward his girlfriend’s house to get help. Clay County Sheriff’s Deputy Ross Lapp, who was driving north on Front Street, encountered appellant at approximately 1:40 a.m. on March 13, 2001.
Without activating his emergency lights or siren, Lapp pulled up next to appellant, rolled down his window, asked appellant how he was doing, and offered him a ride. In response to Lapp’s offer of a ride, appellant asked Lapp if he had to accept it. Lapp told appellant that he was offering him a ride because of the winter conditions, but that appellant did not have to accept it. Appellant responded that he would be fine walking. Lapp then asked appellant his name and where he was from, and appellant stated that he was from Barnesville and showed Lapp his driver’s license. Lapp ran a standard check on appellant’s driver’s license to search for any outstanding warrants, and there were none. Appellant voluntarily told Lapp that he had driven his car into a ditch. When asked if he had been drinking, appellant told Lapp that he had consumed six beers between 7:00 p.m. and midnight. Lapp then administered field sobriety tests, which appellant failed.
Sometime before the field sobriety testing, but after the initial encounter between appellant and Lapp, two other officers arrived. Deputy Dave Brager administered a preliminary breath test that indicated that appellant had an alcohol concentration of .17, and Lapp arrested appellant for driving while impaired. An Intoxilyzer breath test performed post-arrest at the police station showed that appellant’s alcohol concentration was .13. The parties stipulated that the Intoxilyzer test was not administered within two hours after appellant operated a motor vehicle.
Appellant moved for dismissal on the ground that Lapp lacked probable cause to seize him and asked that any evidence resulting from the seizure be suppressed. The court held an evidentiary hearing on the motion and concluded that Lapp did not seize appellant unlawfully. Following a court trial on stipulated facts, the court adjudged appellant guilty of the offense of driving while impaired with an alcohol concentration of .10 or greater in violation of Minn. Stat. § 169A.20, subd. 1(5) (2000). This appeal follows.
D E C I S I O N
1. Legality of Seizure
We review pretrial suppression orders de novo.
When reviewing pretrial orders on motions to suppress evidence, we may independently review the facts and determine, as a matter of law, whether the district court erred in suppressing—or not suppressing—the evidence.
State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999) (citation omitted). Seizures occur when a police officer “by means of physical force or show of authority, has in some way restrained the liberty of a citizen.” State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995) (quotations omitted). Minnesota applies a totality-of-the-circumstances test to determine whether an individual has been seized. A seizure occurs
if in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he or she was neither free to disregard the police questions nor free to terminate the encounter.
Cripps, 533 N.W.2d at 391 (citing Florida v. Royer, 460 U.S. 491, 497-98, 103 S. Ct. 1319, 1323-24 (1983); United States v. Mendenhall, 446 U.S. 544, 554, 100 S. Ct. 1870, 1877 (1980)) (other citation omitted). Factors to consider in deciding whether a seizure occurred include
the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.
In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (quoting Mendenhall, 446 U.S. at 554-55, 100 S. Ct. at 1877).
Appellant asserts that he was seized without articulable suspicion because, given the presence of three officers, he did not feel free to leave. The trial testimony concerning the timing of the arrival of the other officers differed. Although appellant testified that all three officers were present throughout the questioning, Lapp testified that he was the only officer present when appellant produced identification and admitted that he had driven off the road after drinking. It was undisputed that appellant was walking on a public street late on a snowy, cold, winter night and that Deputy Lapp initiated contact with appellant in order to offer him a ride.
A seizure does not occur merely because a police officer approaches a citizen in a public area and begins to ask him questions. Harris, 590 N.W.2d at 98. Lapp did not display a weapon, activate the lights on his squad car, touch appellant, or order him to do anything. Even if appellant provided identification in response to Lapp’s request, a request to produce identification is legally insufficient to form the basis for a seizure, absent other indicia of coercion. State v. Pfannestein, 525 N.W.2d 587, 589 (Minn. App. 1994), review denied (Minn. Mar. 14, 1995). As no other coercive circumstances existed in this case, we agree with the trial court’s conclusion that there was no unlawful seizure.
2. Timing of Intoxilyzer Test
Appellant also argues that it was plain error for the trial court to adjudicate him guilty of violating Minn. Stat. § 169A.20, subd. 1(5) (2000), because the Intoxilyzer test was not administered within two hours after he operated a motor vehicle. Minn. Stat. § 169A.20, subd. 1(5), states that
[i]t is a crime for any person to drive, operate, or be in physical control of any motor vehicle * * * when the person’s alcohol concentration at the time, or as measured within two hours of the time, of driving, operating, or being in physical control of the motor vehicle is .10 or more.
Appellant’s argument focuses on the alternative statutory basis for establishing a violation of Minn. Stat. § 169A.20, subd. 1(5), i.e., an alcohol-concentration test measuring .10 or more that is performed within two hours of motor vehicle operation or control.
The statute recognizes the importance of obtaining a proximate measurement of alcohol concentration in order to determine whether or not someone has driven a motor vehicle while in an impaired state, as it is commonly understood that alcohol concentration dissipates with the passage of time. If an individual consumed alcohol both before and after operating a motor vehicle, but before any testing was done, it would be more difficult to establish a measure of alcohol concentration that related to the time of vehicle operation. Appellant asks this court to interpret the statute to require administration of alcohol-concentration testing within two hours of vehicle operation. But, on this record, we decline to impose such a requirement. Appellant, himself, acknowledged that he did not consume any alcohol after leaving the bar at 11:30 p.m. Thus, the concentration level of .13, as measured at the time he took the Intoxilyzer test, could only mean that appellant had an alcohol concentration of .10 or more at the time he drove his vehicle. There was no evidence in the record to support any other plausible explanation for the .13 test result. Therefore, the trial court properly found a violation of the statute.