This opinion will be unpublished and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

C4-02-365

 

Larry Jones,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed August 27, 2002

Affirmed

Randall, Judge

 

Stearns County District Court

File No. C4-02-365

 

 

Robert Stoneburner, 100 Washburne Avenue, P.O. Box 202, Paynesville, MN 56362 (for appellant)

 

Mike Hatch, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 525 Park Street, Suite 600, St. Paul, MN 55155-6102 (for respondent)

 

Considered and decided by Lansing, Presiding Judge, Randall, 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 Larry Jones challenges his license revocation under Minn. Stat.  169A.53 (2000) as a result of his arrest for driving while intoxicated (DWI). Appellant contends that the officers (1) did not have probable cause to believe appellant was in physical control of his vehicle, and (2) did not establish a temporal connection between appellant's driving the vehicle and his intoxication. We affirm.

FACTS

On September 10, 2001, at approximately 11:32 p.m., while driving home after completing his shift, Officer Kent Kortlever of the Paynesville Police Department observed a pickup truck parked along the shoulder of Highway 23, in Paynesville, Minnesota. The truck was parked on the shoulder so that the rear end of the vehicle extended over the shoulder line, into oncoming traffic. While driving by, Officer Kortlever observed that the vehicle's lights were off, but that the car's interior and door lights were activated. Officer Kortlever testified that, as he passed by the vehicle, he observed a dark-haired male, wearing blue jeans and a jacket, step out of the vehicle's driver's-side door.

Officer Kortlever found the situation suspicious and was concerned about the truck creating a traffic hazard.[1] The officer drove his vehicle two more blocks, turned around, radioed an on-duty officer, and approached the vehicle. Although Officer Kortlever briefly lost sight of the suspect, upon returning to the scene, he saw a man resembling the person who had stepped out of the vehicle standing by a tree about 20 to 25 feet from the vehicle. Officer Kortlever testified that appellant Larry Jones was the same person he saw step out of the driver's-side door and that no one else was present.

On-duty Officer Joseph Schmitz arrived at the scene before Officer Kortlever returned and saw appellant coming out of the yard of one of the residences near the parked pickup truck. Officer Schmitz was speaking with appellant when Officer Kortlever returned. Appellant told Officer Schmitz that he owned the vehicle, that he was looking for a friend's residence, and that he lost his cigarettes. Appellant told both officers that he was alone and that he had not been in his truck for 20 minutes. Both officers looked inside the truck and observed that a key was in the ignition. A license-plate check confirmed that appellant was the owner of the vehicle. Officer Schmitz also saw an open beer inside the vehicle. Officer Kortlever observed that appellant had various "indicia of being under the influence of alcohol" and proceeded to perform field sobriety tests, which showed that appellant was under the influence of alcohol. Based on this information, Officer Kortlever arrested appellant for DWI.

As a result of appellant's arrest for DWI, the Commissioner of Public Safety revoked appellant's driver's license pursuant to Minn. Stat. 169A.53 (2000). Appellant sought judicial review of the revocation order, asserting that there was no probable cause that he was either driving or in actual physical control of the vehicle. The district court sustained the revocation of appellant's license, concluding that probable cause did exist and that the arresting officer had demonstrated by a fair preponderance of the evidence that appellant was, in fact, driving or in actual physical control of his pickup truck. This appeal followed.

D E C I S I O N

A determination of probable cause is a mixed question of fact and of law. Clow v. Comm'r of Pub. Safety, 362 N.W.2d 360, 363 (Minn. App. 1985), review denied (Minn. Apr. 26, 1985). A district court's finding of fact will not be set aside unless clearly erroneous. Thorud v. Comm'r of Pub. Safety, 349 N.W.2d 343, 344 (Minn. App. 1984). Whether there is probable cause for an arrest depends on findings of fact that are reviewed for clear error, but it is ultimately a question of law to be reviewed de novo. State v. Horner, 617 N.W.2d 789, 795 (Minn. 2000). We review the district court's determination of probable cause to ensure that there was a "substantial basis" to conclude that probable cause existed. State v. Harris, 589 N.W.2d 782, 787-88 (Minn. 1999). A reviewing court must consider the totality of the circumstances when determining whether probable cause existed. Eggersgluss v. Comm'r of Pub. Safety, 393 N.W.2d 183, 185 (Minn. 1986).

Appellant argues that the district court erred in finding that the officer had probable cause to believe that appellant was in physical control of the vehicle. We disagree.

A police officer must have probable cause to believe a person is driving, operating, or in physical control of a motor vehicle in violation of Minn. Stat. 169.123, subd. 3 (2000), in order to invoke the implied-consent law. Minn. Stat. 169A.53 (2000). A person is in physical control of a vehicle if he "has the means to initiate any movement of [the] vehicle" and "is in close proximity to the operating controls of the vehicle." State v. Hendricks, 586 N.W.2d 413, 415 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999). A police officer has probable cause to believe an individual is in physical control of a vehicle when, based on the totality of the circumstances, there is reasonable ground of suspicion to warrant a belief that the person was in physical control of his or her vehicle. Shane v. Comm'r of Pub. Safety, 587 N.W.2d 639, 641 (Minn. 1998).

Here, the totality of the circumstances indicates that the arresting officer had probable cause to believe that appellant was in physical control of the parked vehicle. A license-plate check revealed that appellant was the registered owner of the vehicle. This is by no means conclusive, but it supports the other facts, particularly Kortlever's eyewitness identification. Officer Kortlever saw a dark-haired man dressed in blue jeans and a jacket exit the vehicle on the driver's side and saw the vehicle's interior lights on. Upon returning to the scene, Officer Kortlever found appellant, wearing the same type of clothing, under a tree only 20 feet away. When Officer Schmitz arrived, he saw appellant standing near the vehicle. Both officers observed that the keys were in the ignition and that no one else was at the scene. Appellant admitted to being inside the vehicle 20 minutes earlier. We defer to the district court's determinations of credibility, and the district court apparently believed both officers' testimony. See State v. Morgan, 296 N.W.2d 397, 401 (Minn. 1980) (stating that appellate courts give great deference to district court's witness-credibility determination). The officers' observations support the conclusion that appellant was in a position to operate the vehicle because appellant was in close proximity to the controls when he exited the driver's side and had the means to initiate movement because the keys were in the ignition. See Hasbrook v. Comm'r of Pub. Safety, 374 N.W.2d 592, 594 (Minn. App. 1985) (concluding that probable cause existed where arresting officer, who was responding to a dispatch call, found pickup truck abandoned in ditch and located driver at nearby service station). Appellant does not dispute that Officer Kortlever had probable cause to believe that appellant was under the influence of alcohol. Based on the totality of circumstances, we conclude that the district court's finding that the officer had probable cause to believe appellant was in physical control of the vehicle while under the influence of alcohol is supported by the record.

Despite these facts, appellant argues that no "temporal connection" existed between appellant's intoxication and any driving, operating, or controlling of the vehicle, citing Dietrich v. Comm'r of Pub. Safety, 363 N.W.2d 801 (Minn. App. 1985). In Dietrich, a motorist hit a parked trailer while driving on a residential street. Id. at 802. When police arrived at the scene, they discovered that the motorist had returned home. Id. Police went to the motorist's home, where they noted that the defendant displayed several signs of intoxication. Id. This court concluded that the commissioner failed to establish a time frame between the time of the motorist's collision and the time it was determined that he was under the influence of alcohol. Id.

But in Graham v. Comm'r of Pub. Safety, this court recognized that "Dietrich does not establish a rule of law that the officer must explicitly testify as to the time of an accident." Graham v. Comm'r of Pub. Safety, 374 N.W.2d 809, 811 (Minn. App. 1985). The officer in Graham found an abandoned vehicle in a ditch and, based on information received from a witness, located the suspect at a service station. Id. at 810. The court found that the district court erred in finding that there was no probable cause to arrest the respondent for driving while under the influence of alcohol solely on the ground that the officer did not know how long respondent's car had been in a ditch. Id. at 809.

Unlike Dietrich, a temporal connection was established between the time appellant was driving the truck and the time it was determined that appellant was intoxicated. Officer Kortlever saw appellant exit the truck from the driver's side minutes before he conducted the field sobriety tests. Officer Schmitz observed appellant near his vehicle when he approached the scene. The officers found no one else at the scene, the key was in the ignition, and the officers established that appellant owned the pickup truck and that he was under the influence of alcohol. It was not necessary that either officer observe him actually driving. See Hasbrook, 374 N.W.2d at 594 (concluding probable cause existed where driver was located at nearby service station); Hunt v. Comm'r of Pub. Safety, 356 N.W.2d 801, 803 (Minn. App. 1984) (affirming license revocation where, despite defendant's denial, circumstantial evidence existed that vehicle was registered to defendant and police found him one and one-half blocks from vehicle).

The district court believed the officer's testimony, and we give deference to a district court's finding. See Minn. R. Civ. P. 52.01. There was no evidence offered to suggest that appellant became intoxicated after he stepped out of the vehicle. Appellant admitted that he had been in his vehicle 20 minutes earlier and that he was looking for a friend's residence. See Bohlig v. Comm'r of Pub. Safety, 379 N.W.2d 714, 716 (Minn. App. 1986) (stating that facts must be present which provide a sufficient time frame for showing the connection between the drinking and driving). We conclude, as did the district court, that the officers established the necessary temporal connection to show that appellant was in physical control of the vehicle.

Appellant also argues that the district court erred by finding appellant was actually in physical control of the truck. Based on the officers' testimony, the deference given a district court on credibility determinations, and the totality of the circumstances, we cannot conclude that the district court' erred in finding that appellant was in actual physical control. Appellant had been in control before he left the vehicle by his own admission, and that admission is buttressed by the initial observation of Officer Kortlever.

Affirmed.



[1] Officer Kortlever testified that he investigated the scene because the pickup truck was parked illegally and because it presented a public safety hazard by extending out into oncoming traffic on a public highway. See Kozak v. Comm'r of Pub. Safety, 359 N.W.2d 625, 628 (Minn. 1984) (stating that an officer has right and duty to reasonably investigate vehicles parked along roadways to offer needed assistance and to inquire into physical condition of persons in vehicles).