This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2002).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-02-851

 

Virgil Lee Barnes, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed January 7, 2003

Affirmed

Gordon W. Shumaker, Judge

 

Sherburne County District Court

File No. C802000386

 

 

Rory Patrick Durkin, Giancola Law Office, PLLC, 403 Jackson Street, Suite 305, Anoka, MN 55303 (for appellant)

 

Mike Hatch, Attorney General, Sheila M. Fitzgerald Steichen, Assistant Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106 (for respondent)

 

††††††††††† Considered and decided by Shumaker, Presiding Judge, Anderson, Judge, and Wright, Judge.

U N P U B L I S H E D†† O P I N I O N

GORDON W. SHUMAKER, Judge

††††††††††† Appellant Virgil Lee Barnes was arrested for being in physical control of a motor vehicle while impaired.† Because Barnesís urine sample revealed an alcohol concentration of 0.14, the Commissioner of Public Safety revoked his driverís license.† After an implied-consent hearing, the district court found that Barnes was in physical control of his truck while impaired, and the court sustained the revocation.† Because the evidence supports the district courtís finding of physical control, we affirm.

FACTS

††††††††††† On January 11, 2002, appellant Virgil Lee Barnes drove his truck to a bar in Big Lake and drank alcoholic beverages.† When he finished drinking, he did not feel capable of driving, and he asked various bar patrons to drive him home.† One patron agreed.

On the way to Barnesís home, with the patron driving, Barnesís truck ran out of gasoline.† Barnes then telephoned his wife and asked her to bring gasoline.† In the meantime, the patron obtained a ride back to the bar.† When the patron left, Barnes moved from the passenger seat to the driverís seat and left the ignition keys on the truckís console.

While on patrol, Deputy Sheriff Scott Tillmann saw Barnesís truck parked on the side of the road and stopped to investigate.† As the deputy walked toward the truck, Barnes put the key in the ignition and turned the switch to ďonĒ so he could open the power window and talk to the deputy.

Barnes told Tillmann that he had been driving his truck and ran out of gas.† Tillmann noticed that Barnes had signs of alcohol impairment and administered a preliminary breath test.† Barnes failed the test, and the deputy arrested him.† Barnesís wife then arrived with a can of gas.

When Barnesís urine sample showed an alcohol concentration of 0.14, the Commissioner of Public Safety revoked his driverís license.† Barnes challenged the revocation in an implied-consent hearing, arguing that he never relinquished his status as a passenger and therefore was not in physical control of the truck when the deputy arrested him.† The district court sustained the revocation, and Barnes appeals.

D E C I S I O N

††††††††††† Barnes does not dispute that, when deputy Tillmann approached his truck, Barnes was sitting in the driverís seat, the key was in the ignition, and the ignition switch was on.† The issue Barnes raises is whether those undisputed facts, in the context of how Barnes arrived at the scene and the reason he was in the driverís seat with the ignition on, support the district courtís conclusion that Barnes was in physical control of his truck.† We review de novo the courtís legal conclusion that Barnes was in physical control.† Shane v. Commír of Pub. Safety, 587 N.W.2d 639, 641 (Minn. 1998).

††††††††††† Under Minn. Stat. ß 169A.52 (2000), the Commissioner of Public Safety has a duty to revoke the driverís license of any person who is in physical control of a motor vehicle when the person has an alcohol concentration of 0.10 or more.† Physical control is ďmore comprehensive than either Ďdriveí or Ďoperate.íĒ† State v. Starfield, 481 N.W.2d 834, 836 (Minn. 1992).† The supreme court defines physical control as

cover[ing] situations where an inebriated person is found in a parked vehicle under circumstances where the car, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property.†

 

Id. at 837.† The danger need not result from actual driving, but will also lie in the potential the vehicle has for becoming a traffic hazard.† Id. at 838.†† The legislature intends the implied consent statute to be given the ďbroadest possible effect.Ē† State, Depít of Pub. Safety v. Juncewski, 308 N.W.2d 316, 319 (Minn. 1981).

Relying on Snyder v. Commír of Pub. Safety, 496 N.W.2d 858 (Minn. App. 1993),and Shane, Barnes argues that he could not have been in physical control of the truck because he never relinquished his passenger status.† In Snyder, we held that when a driver gives the ignition keys to a passenger in the car after consuming alcohol the driver then achieves passenger status.† Id. 860.

Snyder is factually distinguishable because, even though Barnes initially gave his keys to the bar patron and then assumed a passenger status, when the patron left the scene of the stalled truck, Barnes reclaimed† driver status.† He moved into the driverís seat, put the key in the ignition, and turned the ignition on.

In Shane, the police stopped a car and asked the driver to step out.† Shane, 587 N.W.2d at 640.† Shane, the passenger, remained in the car.† Id.† While the police and driver were outside, Shane reached down and pushed the accelerator.† Id.† The supreme court held that Shane had not relinquished his passenger status because he stayed in the passengerís seat and only touched the accelerator.† Id. at 642.† The Shane court held that it would have found physical control if Shane had

put himself in a position to move the [vehicle] or that he caused the [vehicle] to move * * * the record is clear that Shane did not move to the driverís seat, touch the steering wheel, or put the [vehicle] in gear.

 

Id. (emphasis added).† Barnes placed himself in the driverís seat and put the keys in the ignition, thus putting himself in a position to move the truck.† Unlike Shane, Barnes relinquished his passenger status by performing acts of a driver.

Barnes also argues that he could not have been in actual physical control of the truck because it was inoperable after it ran out of gas.† Barnes bases his position on Roberts v. Commír of Pub. Safety, 371 N.W.2d 605 (Minn. App. 1985), review denied (Minn. Oct. 11, 1985). †In Roberts, the driver became intoxicated and his friends brought him to his car, placed him in the driverís seat, and took his keys.† Id. at 606.† The friends returned later, found the driver asleep in the car, disconnected the engine coil wire, and left the ignition keys on the dashboard.† Id.† An officer found the driver asleep in the car, awakened him, saw signs of intoxication, determined that the keys on the dashboard included the ignition key, and then arrested him.† Id.

We affirmed the district courtís order rescinding the revocation of the driverís license because the courtís findings were not clearly erroneous and its conclusions of law should not be disturbed.† Id. at 607.† We held:

Where an intoxicated, sleeping automobile occupant had been placed in the front seat of his automobile without his knowledge, had no intention of driving the vehicle and where the vehicle was mechanically inoperable, the occupant was not in physical control of the vehicle even though the ignition keys were located on the dashboard and the car was parked in a tavernís parking lot.

 

Id. †at 607-08.

Inoperability was only one of a constellation of factors upon which the district court in Roberts based its decision.† Also critical to the decision were the facts that the driver did not even know he had been put in the driverís seat, was not awake while he was there, and evinced an intention to sleep rather than drive.† Id. at 607.

Here, unlike Roberts, Barnes intentionally moved from the passenger seat to the driverís seat, knew where he was, and intentionally put the key into the ignition and turned the switch on.† Furthermore, in Roberts, the district court found that the driver had not driven his car to the tavern while he was intoxicated.† Id.† Here, Barnes told the deputy that he had been driving and ran out of gas.† We said in Roberts that credibility is an issue for the trier of fact to determine.† Id.† ††Although Barnes testified that the bar patron had actually driven the truck, the district court might have accepted Barnesís contrary assertion and concluded from that and the surrounding circumstances that Barnes had driven while impaired and was going to continue his journey as soon as he received gasoline.

The temporary inoperability of Barnesís truck was significantly different from the inoperability of Robertsís car.† Barnes was not only a drop of gasoline away from full operability; the gasoline was in fact on its way.† Temporary inoperability, depending on the circumstances, does not necessarily preclude a proper conclusion that a person is in physical control of a motor vehicle.† See Starfield, 481 N.W.2d at 838 (holding that a woman found in driverís seat, with keys in her pocket and car stuck in the ditch, was still in physical control because her car could have been pulled from the ditch); Abeln v. Commír of Pub. Safety, 413 N.W.2d 546, 548 (Minn. App. 1987) (holding that a driver had physical control of his car that had a dead battery because he was waiting for his wife to arrive and to jump-start it); State v. Woodward, 408 N.W.2d 927, 928 (Minn. App. 1987) (holding that although the car had a flat tire, the driver still could have driven the car, so the driver had physical control).† Also, Barnesís vehicle was a source of danger because it was a traffic hazard on the side of the road and would have become a greater source of danger when his wife arrived with the gas can.† Starfield, 481 N.W.2d at 838.† Thus, we conclude that Barnes was in physical control even though his truck was only temporarily inoperable.

Lastly, Barnes argues that the district court erred in shifting to him the burden of proving that he was not in physical control of the truck.† The commissioner has the burden of proving ďby a fair preponderance of the evidence that the driver was in actual physical control [of the vehicle].Ē† Hansen v. Commír of Pub. Safety, 478 N.W.2d 229, 231 (Minn. App. 1991) (citations omitted).†

The district court erred when it concluded that Barnes had ďfailed to meet his burden of showing he was not in physical control.Ē† But the error was harmless because the undisputed facts support the courtís conclusion.† See Katz v. Katz, 408 N.W.2d 835, 839 (Minn. 1987) (holding correct decision will not be reversed simply because it is based on incorrect reasons).

The commissioner argues that even if we do not find actual physical control from the undisputed facts, we can nevertheless affirm on the district courtís ďimplicitĒ finding that Barnes drove the truck before it ran out of gas.† Because the facts sustain the courtís conclusion, we need not address that argument.†

Affirmed.