This opinion will be unpublished and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

C0-01-1485

 

Laura Marie Blaido, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed September 17, 2002

Affirmed

Gordon W. Shumaker, Judge

Concurring specially, Harten, Judge

 

Washington County District Court

File No. C2012522

 

 

Jeffrey S. Sheridan, Strandemo & Sheridan, 320 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, MN 55121 (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 Schumacher, Presiding Judge, Harten, Judge, and Shumaker, Judge.

U N P U B L I S H E D   O P I N I O N

 

GORDON W. SHUMAKER, Judge

 

            Appellant challenges the district court’s order sustaining the revocation of her driver’s license, arguing that the district court incorrectly used the articulable-suspicion standard to determine whether the preliminary breath test (PBT) was properly administered and that the officer did not have probable cause to give her the implied-consent advisory.  Because the district court used the correct standard and the officer had probable cause, we affirm.

FACTS

            On April 21, 2001, at 1:36 a.m., Cottage Grove police sergeant Smith stopped appellant Laura Blaido’s car.  The reason for the stop is not in the record.  As he spoke to her, Smith detected an odor of an alcoholic beverage on appellant’s breath, and he asked her if she had been drinking.  She responded that she had been drinking but had not had anything to drink for about an hour or an hour and one-half before the stop.  The sergeant was also the shift supervisor and saw a training opportunity as the driver had been drinking, so he called the field-training officer who was close to his location as backup to assist with the field-sobriety testing.  The field-training officer then arrived at the scene. 

The sergeant first administered a finger-dexterity test.  Appellant performed the test, but “at times [she] was slow in responding.”  He described appellant’s performance by stating that “she did slow down it was like she was having a hard time thinking, the thinking process.”  The sergeant also administered an alphabet test, and “[s]he did well on the alphabet test.  * * * [S]he recited it quickly.”  He decided further testing was needed because of the odor of an alcoholic beverage on appellant’s breath and because of her slow performance on the finger-dexterity test, and he passed further testing on to Officer Martin, a field-officer trainee.

            Officer Martin observed the first two tests, then she asked appellant to step out of the vehicle.  Martin noticed that appellant “had the odor of an alcoholic beverage coming from her breath, which intensified when she spoke to me; her eyes were watery and bloodshot.”  She asked appellant whether she could administer a (PBT), and appellant consented.  Martin then administered the test.  The result was an alcohol concentration of .113.

After the PBT, Martin administered two more field-sobriety tests.  The first was the one-legged balance test.  Martin testified that appellant “lost her balance at count 1,024, touched her foot down to regain her balance, and repeated counting 1,023 and 1,024.”  According to the manual for this test, appellant must have shown two or more “clues” in order to fail the test.  Appellant showed only one.

The second test was the nine-step walk and turn.  Although she maintained her balance while walking, “[a]t the end of the nine steps she stopped, she paused for four to five seconds and said, I’m not quite sure how you want me to do this.”  She then used both feet to turn in a half circle.  Again, according to the manual for this test, appellant must have shown two or more “clues” to fail the test.  Appellant showed only one.  Martin testified, however, that she was not trained to base probable cause on the determination of one test, but to “observe her performance on all tests, behavior while instructions were given, ability to follow instructions.”  Martin testified that appellant fidgeted during the instructions, was unable to follow instructions, and showed one “clue” of intoxication on each test.

Officer Rinzel was Martin’s field-training officer.  After Martin had completed the two tests, Rinzel administered the horizontal-gaze nystagmus test.  Initially, appellant moved her head, and Rinzel administered a second test.  During the second test the officer “noted that she had a lack of smooth pursuit in both her left and right eye and also distinct nystagmus at maximum deviation.”  Martin then arrested appellant, she was given the implied-consent advisory, and her driver’s license was subsequently revoked.

Appellant petitioned for an implied-consent hearing, seeking rescission of the revocation of her driver’s license.  After a bench trial, the district court entered an order sustaining the commissioner’s order of revocation, concluding that there were sufficient indicia of intoxication to form an articulable suspicion that appellant was under the influence of alcohol and that, given the totality of the circumstances, the officers had probable cause to believe that appellant was operating a vehicle while under the influence of alcohol.  The district court also decided that, because of recent appellate decisions regarding whether the use of the Intoxilyzer 5000, series 68-01, was properly authorized by the commissioner, it deferred to the commissioner’s construction of its own regulations and concluded that the use of that model was proper.

Although appellant originally raised on appeal the same issues she raised in the district court, she has withdrawn her challenge regarding the Intoxilyzer 5000 in light of the Minnesota Supreme Court’s decision in Jasper v. Comm’r of Pub. Safety, 642 N.W.2d 435 (Minn. 2002).

D E C I S I O N

Appellant argues that the wrong standard is used in Minnesota to determine whether a PBT may be administered and that a probable-cause standard should be used as articulated in Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 109 S. Ct. 1402 (1989).  In Skinner, the Federal Railroad Administration promulgated rules that required railroads to ensure that all railroad employees involved in certain events, such as major train accidents, provide blood, urine, or breath samples for toxicological testing.  Id. at 609, 109 S. Ct. at 1409.  The Supreme Court found that this testing, specifically including breath testing, was a search protected under the Fourth Amendment, and thus the search must be “reasonable.”  Id. at 616-17, 109 S. Ct. at 1412-13.  But reasonableness “depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself.”  Id. at 619, 109 S. Ct. at 1414 (quotation omitted).  The court also noted that, although the standard rule requires that a judicial warrant be obtained based upon probable cause before a search and seizure may occur, there are exceptions to this rule, such as “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”  Id. (quotation omitted).  Obtaining breath samples for toxicological testing is one of these exceptions.  Id. at 623-24, 109 S. Ct. at 1417. 

Even in instances where a warrant is not necessary, a search must be based on probable cause to believe that the person to be searched has violated the law.  Id. at 624, 109 S. Ct. at 1417.  But the probable-cause requirement is sometimes not required, as long as some individualized suspicion is shown indicating that the search is reasonable:

When the balance of interests precludes insistence on a showing of probable cause, we have usually required “some quantum of individualized suspicion” before concluding that a search is reasonable.

 

Id. (citation omitted).

Although Skinner does not involve roadside administration of a PBT, we find the Supreme Court’s analysis instructive, and the law in Minnesota regarding the administration of preliminary breath testing is in accordance with the parameters articulated in Skinner.

In Minnesota, “[a]n officer need not possess probable cause to believe that a DWI violation has occurred in order to administer a preliminary breath test.”  State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986), review denied (Minn. May 16, 1986).  Rather, an officer may request a PBT if he or she can point to specific, articulable facts that form a basis to believe that a person is or has been driving, operating, or controlling a motor vehicle while under the influence of alcohol.  Id.  Articulable suspicion is an objective standard and is determined from the totality of the circumstances.  Paulson v. Comm’r of Pub. Safety, 384 N.W.2d 244,246 (Minn. App. 1986).

Here, appellant admitted to drinking that evening; the officers noticed an odor of alcohol on her breath; her eyes were watery and bloodshot; and she struggled in performing the finger-dexterity test.  These facts are sufficient for the officer to have an articulable suspicion that appellant was driving while under the influence of alcohol and the request to administer a PBT was proper.  See Vievering, 383 N.W.2d at 729 (officer had sufficient reason to request PBT as he observed speeding violation, detected strong odor of alcohol on driver and passenger’s breath, and discovered two open cans of beer on floor of vehicle). 

Appellant in this case, like the defendant in Vievering, argues that the officer’s observations show only that she had been drinking, not that she was intoxicated.  But the court in Vievering specifically rejected this distinction and found that the distinction is even less sound when applied to a request for a preliminary breath test, because the standard used to request a PBT is lower than that used to arrest for driving while intoxicated:

The distinction is even less sound when applied to a request for a preliminary breath test, because the officer need only possess “articulable facts” to support the request, rather than the higher standard of probable cause to support a request for a chemical test.

 

Id. at 730.  The record shows that the officer’s request to administer a PBT was proper.

Finally, appellant argues that the district court erred in finding that the officer had probable cause to administer the implied-consent advisory. 

Probable cause exists where the facts would lead a person of ordinary care and prudence to hold an honest and strong suspicion that the driver was under the influence.  State v. Hendricks, 586 N.W.2d 413, 414 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999).  A single, objective indication of intoxication may be sufficient to constitute probable cause, depending on the circumstances of the case.  Martin v. Comm’r of Pub. Safety, 353 N.W.2d 202, 204 (Minn. App. 1984).  We must consider the totality of the circumstances when determining probable cause.  Groe v. Comm’r of Pub. Safety, 615 N.W.2d 837, 840 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000).  The collective knowledge of all the police officers is imputed to the arresting officer for the purpose of determining whether probable cause exists.  Id.

Before the PBT was administered, appellant admitted to drinking that evening and exhibited symptoms of alcohol influence.  The PBT confirmed that appellant’s alcohol concentration was beyond that allowed by law.  Even if we did not consider the field-sobriety tests used after the PBT was administered, in the totality of the circumstances, there was a substantial factual basis for appellant’s arrest.  See Steinbrenner v. Comm’r of Pub. Safety, 413 N.W.2d 557, 559 (Minn. App. 1987) (probable cause existed based on manner of driving, odor of alcohol on breath, bloodshot and watery eyes, speech, and balance); Shull v. Comm’r of Pub. Safety, 398 N.W.2d 11, 13-14 (Minn. App. 1986)(“moderate” odor of alcohol, flushed complexion, bloodshot and watery eyes, and slurred speech sufficient to establish probable cause, even though appellant had explanations for some of the indicia); State v. Grohoski,390 N.W.2d 348, 351 (Minn. App. 1986), (the following indicia alone are sufficient to establish probable cause: bloodshot and watery eyes, odor of alcohol on breath, and admission to drinking), review denied (Minn. Aug. 27, 1986); Steinberg v. State, Dep’t of Pub. Safety, 357 N.W.2d 413, 416 (Minn. App. 1984) (bloodshot and watery eyes, slurred speech, and strong odor of alcohol sufficient to establish probable cause).  The district court did not err in sustaining the revocation of appellant’s driver’s license.

Despite the officers’ technical compliance with the law and undoubted good-faith desire to provide law-enforcement experience to a trainee, as the concurring opinion explains, the officers’ approach was heavy-handed and unnecessary and was the type of conduct that fosters a negative view of the police.

Affirmed.

 

 

 

 

 

HARTEN, Judge (concurring specially)

 

            Although I concur with the result reached on appeal, I do not condone the practices used by the officers who arrested appellant.  Apparently the officers were more interested in conducting a training session for an inexperienced officer than in testing appellant fairly after they stopped her at 1:36 a.m.  By the officers’ own admission, they subjected her to no fewer than six tests prior to arresting her:  (1) a finger dexterity test, (2) an alphabet recitation text, (3) a preliminary breath test (PBT), (4) a one-leg stand test, (5) a nine-step walk-and-turn test, and (6) a horizontal gaze nystagmus (HGN) test.  Moreover, the results of the first two tests indicated that appellant was not under the influence and the results of the fourth and fifth tests corroborated that indication.

            Admittedly, this court has held that “an officer need only have one objective indication of intoxication to constitute reasonable and probable grounds to believe a person is under the influence.”  Holtz v. Comm’r of Pub. Safety, 340 N.W.2d 363, 365 (Minn. App. 1983) (citing State v. Hicks, 301 Minn. 350, 222 N.W.2d 345 (1974)).  But that holding was modified by Martin v. Comm’r of Pub. Safety, 353 N.W.2d 202 (Minn. App. 1984):

            The Holtz decision is misread if it is seen as authority to find probable grounds for implied consent testing whenever one objective indication of intoxication is proven.

 

            * * * Holtz * * * makes it clear that even a single objective indication of intoxication may be sufficient, depending upon the circumstances in each case.  * * *  [I]t is fundamental that each case must be decided on its own facts and circumstances and without regard to any formula.

 

Martin, 353 N.W.2d at 204 (emphasis added) (citations omitted).

 

            Where the “facts and circumstances” of a case include both evidence refuting and evidence corroborating intoxication, officers may not simply ignore the former and continue testing until they find the latter.  Once an initial suspicion has been refuted, officers cannot proceed as if that refuting evidence did not exist.  See, e.g., State v. Hickman, 491 N.W.2d 673, 675 (Minn. App. 1992) (upholding suppression of evidence of driving after revocation obtained after officer’s initial suspicion of driving with an expired vehicle registration had been refuted), review denied (Minn. 15 Dec. 1992).

            The purpose of field testing is not to provide support for an officer’s predetermined conclusion; it is to enable an officer to come to a conclusion based on all the facts and circumstances.  Here, the officers ignored some facts and circumstances:  they ignored the results of the first two tests when they administered the PBT and ignored the results of the one-leg stand and the walk-and-turn tests when they proceeded with the HGN test.

            Insofar as appellant was required to undergo at least arguably superfluous tests to provide experience for an officer in training, appellant was treated unfairly.  Her consent to the additional tests was not requested; she was not informed of the officer’s probationary status; she was not given the opportunity to refuse the tests.  There is no support for the view that providing trainee officers with experience supercedes the requirement for either articulable suspicion or probable cause.

            Only when, and as long as, those requirements are met do officers have the option to conduct field testing.  And the officer should bear in mind that a suspect is under no obligation to perform any field sobriety test.  The requirements are never met merely because an officer needs training, and they are no longer met when successful performance on some tests refutes the articulable suspicion or removes the probable cause.