This opinion will be unpublished and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

C6-02-2084

 

Perry Jed Henke, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

 

Filed July 29, 2003

Affirmed

Stoneburner, Judge

 

Hennepin County District Court

File No. IC480663

 

Barry V. Voss, Voss & Hickman, P.A., Suite 2355, 527 Marquette Avenue South, Minneapolis, MN 55402 (for appellant)

 

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

 

††††††††††† Considered and decided by Minge, Presiding Judge, Harten, Judge, and Stoneburner, Judge.

U N P U B L I S H E D† O P I N I O N

STONEBURNER, Judge

 

††††††††††† Appellant Perry Jed Henke challenges a district court order sustaining the revocation of his driving privileges.† Henke argues that the district court erred by finding that there was probable cause for his arrest for driving while impaired and the district courtís finding that he had physical control of a vehicle while intoxicated is clearly erroneous.† Because the record supports the district courtís findings, we affirm.

FACTS

 

††††††††††† On the night of Henkeís arrest, Plymouth Police Officer Reed observed two cars going westbound on Shelard Parkway and noticed that one of the drivers was using the horn excessively.† As the car passed Officer Reed, he observed that the driver was wearing a white baseball-style hat.† Officer Reed turned his squad car around and followed the car into the parking lot of an apartment complex.† Officer Reed stopped approximately 15 to 20 feet from the car, on the passengerís side.† He saw the passenger, who was not wearing a white hat, get out of the car and walk toward the building.† A person wearing a white hat, blue jeans and a red flannel shirt, approached the squad car from the driverís side of the car.† For his safety, Officer Reed requested that both men get back into the car.† The man in the white hat ran away.† Officer Reed detained the passenger, Matthew Popp.† Popp, who smelled of an alcoholic beverage and had slurred speech, told Officer Reed that he did not know the driverís name.† Popp said that he had a prior DWI conviction and let a stranger, whom he had met in a downtown bar, drive him home.† At this point, Officer Reed had discovered that Popp is the registered owner of the car in question.† Popp had possession of the car keys.

††††††††††† As he spoke to Popp, Officer Reed saw the person with the white hat in the lobby of the apartment building.† A backup officer arrived and as the two officers approached the lobby, the man in the white hat ran again.† The officers gave chase and the man in the white hat slipped on some ice, fell and was apprehended and identified as appellant, Perry Henke.

††††††††††† Officer Reed asked Henke why he had run from the car and Henke said that he was scared.† Officer Reed noticed a strong odor of alcohol coming from Henke and asked if he had been drinking.† Henke said yes, but he was not the driver.† Officer Reed asked who had been driving and Henke did not respond.† As Officer Reed was having Henke perform field sobriety tests, Henke stopped and told the officer ďIím drunk, just arrest me, Iím drunk.Ē† Henke was arrested and submitted to a breath test that indicated that he had an alcohol concentration of 0.20.†

††††††††††† Henke was charged with two counts of first-degree DWI and obstructing legal process, but the charges were dismissed after Popp submitted an affidavit stating that he was the driver of the car on the night in question.†

††††††††††† Henke contested the revocation of his driverís license.† At the implied consent hearing, Popp testified that he was the driver, but he had been scared to tell the officer.† Henke testified that Popp was the driver and that he had been asleep in the passengerís seat.† Henkeís father testified that when he asked Officer Reed if he had seen Henke driving, the officer responded only that ďhe was fleeing.Ē† Henkeís father also testified that during an earlier hearing, he had overheard the prosecutor asking the officer if Popp could have been the driver, and the officer said ďitís possible.Ē† Officer Reed testified that he never doubted that Henke was the driver.† The district court sustained the revocation.† This appeal followed.

D E C I S I O N

 

††††††††††† ďA determination of probable cause is a mixed question of fact and of law.Ē† Groe v. Commír of Pub. Safety, 615 N.W.2d 837, 840 (Minn. App. 2000) (citation omitted), review denied (Minn. Sept. 13, 2000).† The duty of the reviewing court is ďto ensure that the officer had a substantial basis for concluding that probable cause existed at the time of invoking the implied consent law.Ē† State v. Olson, 342 N.W.2d 638, 641 (Minn. App. 1984).† We will not reverse the district courtís findings of fact unless they are clearly erroneous.† Thompson v. Commír of Pub. Safety, 567 N.W.2d 280, 281 (Minn. App. 1997), review denied (Minn. Sept. 25, 1997); see also Minn. R. Civ. P. 52.01.† ďA reviewing court must consider the totality of the circumstances when determining probable cause.Ē† Groe, 615 N.W.2d at 840 (citation omitted).† Probable cause is determined based on what the officer knew at the time of the arrest, not what he may have learned later.† State v. Harris, 295 Minn. 38, 42, 202 N.W.2d 878, 881 (1972) (stating probable cause must be based on facts and circumstances known to the officer); Giddings v. Commír of Pub. Safety, 354 N.W.2d 579, 581 (Minn. App. 1985) (stating that driverís behavior one hour after arrest not relevant to probable cause for arrest).† When reviewing a district courtís findings of fact, this court gives great deference to the district courtís determinations of witness credibility.† See In re Knops, 536 N.W.2d 616, 620 (Minn. 1995).† In this case, the district court explicitly found that Officer Reed was a credible witness and that Henke and Popp were not credible.

††††††††††† Henke first asserts that the fact that his breath smelled of an alcoholic beverage is not enough to constitute probable cause.† The district court found that Henke not only smelled of alcohol, but admitted he had been drinking, could not complete the field sobriety tests requested, and ďtwice attempted to flee Officer Reed on foot,Ē all of which supported the officerís probable cause to believe that Henke was impaired.†

††††††††††† An admission of drinking coupled with other indicators is sufficient to constitute probable cause that a driver has been drinking.† See State v. Grohoski, 390 N.W.2d 348, 351 (Minn. App. 1986) (stating that officerís observation that defendantís eyes were watery and bloodshot, odor of alcohol emanating from him and admission of drinking is sufficient to justify officerís belief that defendant was impaired), review denied (Minn. Aug. 27, 1986).† The record supports the district courtís findings, and the findings support the conclusion that Henke was impaired.† And the officerís testimony about what he observed supports the district courtís finding that the officer had probable cause to believe that Henke was the driver of the car.† The district court did not err in concluding that the officer had probable cause to invoke the implied consent advisory.

††††††††††† Henke next asserts that the district courtís finding[1] that the state proved by a preponderance of the evidence that Henke drove the vehicle under the influence of alcohol is clearly erroneous.† We disagree.† That there was conflicting testimony about who was driving does not make the district courtís finding erroneous.† See Engebretson v. Commír of Pub. Safety, 395 N.W.2d 98, 100 (Minn. App. 1986) (holding that district court could reasonably have found that defendant was driving snowmobile while impaired based on credibility determinations, notwithstanding contradictory testimony of three defense witnesses stating that another was driving).† The district court specifically found Officer Reed credible and Henke and Popp not credible.† The evidence supports the district courtís finding that Henke was driving.

††††††††††† Affirmed.



[1] The district court made this statement as a ďconclusion,Ē but all parties agreed that it is properly treated as a finding.