This opinion will be unpublished and

may not be cited except as provided by

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






William Charles Tschida, petitioner,





Commissioner of Public Safety,



Filed February 11, 2003


Randall, Judge


Dakota County District Court

File No. C8-01-9858


Paul W. Rogosheske, Joe C. Dalager, Thuet, Pugh, Rogosheske & Atkins, Ltd., 222 Grand Avenue West, Suite 100, South Saint Paul, MN  55075 (for appellant).


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


            Considered and decided by Peterson, Presiding Judge, Randall, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N


            This is an appeal from a district court decision sustaining the revocation of appellant's driver's license.  Appellant argues that the district court's finding that his stated alcohol consumption was "unreasonable" is clearly erroneous, and further argues that he met his burden to establish post-driving consumption.  Based on the record before us, we cannot say the findings are clearly erroneous.  We affirm.


            On September 4, 2001, at 10:12 p.m., Rosemount police dispatch received a report of a one-vehicle accident involving a red truck that had gone into a ditch, possibly had struck a tree, and then had left the scene.  A citizen reported that the vehicle involved was parked at a nearby residence.  Officers went to the residence, where the owner, Robert Sime, invited them in.  They found appellant, the owner of the truck, inside the home, drinking a beer at 10:28 p.m.  Appellant stated that it was his car, but that he had not driven it that evening.  The officers invited appellant to accompany them outside to inspect the truck, but appellant declined.  One of the officers observed that appellant was slurring his speech and had bloodshot eyes and unsteady balance.  When asked how many beers he had consumed, he told the officers he had three beers that evening.  Erickson suggested that appellant perform field-coordination tests, but appellant declined.  Based on his observations, Erickson arrested appellant for driving while impaired.  Officers took appellant to the Rosemount Police Department where he consented to an Intoxilizer breath test that reported his alcohol concentration as 0.19 at 11:23 p.m.  Appellant's drivers license was revoked, and appellant petitioned for judicial review of the revocation to the district court.

            At the hearing, appellant admitted that he had lied to the two officers regarding his consumption.  He testified that, in fact, he consumed three beers before leaving his home and then drove to Sime's residence.  On the way, appellant testified that a tire failed, and his vehicle went into the ditch.  After this, he drove the vehicle, with the flat tire, to Sime's residence.  Appellant testified that once he reached Sime's residence he consumed "four or five juice glasses of whiskey and two and one-half beers before police arrived." 

            Appellant's expert witness, Thomas Burr, testified that given appellant's height, weight, and stated consumption, he would have had an alcohol content of approximately 0.19 at the time officers tested it.  But, he testified that if appellant had consumed only three beers, appellant's alcohol content would have been between 0.01 and 0.03. 

            The district court concluded that appellant failed to prove his affirmative defense of post-driving consumption because the court found appellant's testimony of his consumption that evening "not reasonable under the circumstances."  The district court did not give much weight to appellant's expert's testimony since it was predicated on appellant's own testimony, which the court had found "unreasonable."  Appellant filed a motion for amended findings, which the district court denied.   


            Because the district court has the opportunity to judge the credibility of the witnesses, findings of fact will not be set aside unless they are clearly erroneous.  Thorud v. Comm'r of Pub. Safety, 349 N.W.2d 343, 344 (Minn. App. 1984).  The affirmative defense of post-driving consumption is reviewed under the clearly erroneous standard.  Dutcher v. Comm'r of Pub. Safety, 406 N.W.2d 333, 336 (Minn. App. 1987).  

            We understand appellant's argument.  It centers around his claim that the trial judge placed too much emphasis on the unreasonableness of appellant's testimony, which is based on appellant's recollection of his postdriving consumption.  We also understand appellant's argument that, due to unforeseen circumstances with equipment, the judge did not have the full transcript available when he ruled on appellant’s motion for amended findings and, therefore, the court's findings do not hang together.  We conclude that, taking appellant's arguments together, the record is insufficient for us to say the district court's findings are clearly erroneous.

            The parties agree that appellant testified he consumed four to five juice glasses of whiskey and three beers in 25 to 30 minutes.  The district court found that this testimony was "unreasonable under all the circumstances."  The court discussed its reasoning, stating

[T]he short period of time involved is inconsistent with the quantity of alcohol [appellant] claims he consumed.  [Appellant] failed to inform the officers that he had consumed 4 or 5 juice glasses of whiskey before police arrived at the residence when he was asked regarding the number of beers he had at the residence.  This failure and the failure to disclose any post driving consumption other than 3 beers when he was arrested for driving under the influence is inconsistent with [appellant's] claim that post driving consumption resulted in an alcohol concentration in excess of .10.


            Appellant argues that the district court improperly took judicial notice of how much alcohol one can consume when it found that appellant's account was not reasonable under the circumstances.  We disagree.  Describing appellant's testimony of his consumption as unreasonable is the equivalent of the court finding appellant's testimony not credible.  The fact that the court chose not to explicitly state that it thought appellant was lying does not correlate to proof that the district court was clearly erroneous when it found appellant's testimony, under the circumstances, "unreasonable."  Nothing in the record indicates that the district court's findings are clearly erroneous. 

            Finally, appellant argues that the district court did not give proper weight to the expert testimony presented.  Appellant's expert testified that, based on appellant's account of what he drank, his alcohol content would have been minimal when driving and would have been 0.19 when officers tested him at the police station.  The commissioner did not call witnesses to refute this expert testimony, and, thus, appellant argues that the district court erred in finding he had not proven his affirmative defense of post-driving alcohol consumption.  We find no such error.  Appellant's expert testimony was predicated solely on appellant's own account of his consumption.  If this account was not credible, as the district court found, the probative value of the expert testimony is negated.  The district court was not compelled to accept the expert's testimony at face value simply because the state did not produce a competing expert.