This opinion will be unpublished and

may not be cited except as provided by

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

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C2-03-214

 

Jay Jonathan Grizzle, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed ­­­July 29, 2003

Affirmed

Harten, Judge

 

Carver County District Court

File No. CX-02-2034

 

Richard L. Swanson, Law Offices, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN 55318 (for appellant)

 

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

 

            Considered and decided by Harten, Presiding Judge, Stoneburner, Judge, and Parker, Judge.*

U N P U B L I S H E D   O P I N I O N

 

HARTEN, Judge

Appellant challenges the district court’s order sustaining the revocation of his driver’s license, arguing that the arresting officer did not have a sufficient basis to request a preliminary breath test (PBT).  Because we conclude that the officer had a sufficient articulable basis for requesting the PBT, we affirm.

FACTS

At approximately 10:30 p.m. on 25 September 2002, a Chaska police officer responded to a motor vehicle accident.  At the accident scene, he observed numerous people standing around a car and a truck.  The officer identified the car’s driver as appellant Jay Grizzle.  Although it was raining heavily, the officer noticed a slight odor of alcohol coming from appellant.

Appellant told the officer that he was turning left on a green light and that he did not see the oncoming truck’s headlights until just before the accident.  The officer asked appellant if he had been drinking, and appellant told him that he had consumed three bottles of beer.  Appellant agreed to take a PBT, which registered an alcohol concentration of 0.174.  The officer then instructed appellant to perform a field sobriety test, but appellant refused and instead repeatedly attempted to walk toward his wife, who had driven to the scene in another vehicle.  The officer arrested appellant for driving while impaired (DWI).

Respondent Commissioner of Public Safety revoked appellant’s driver’s license pursuant to the implied consent law, and appellant petitioned for judicial review, claiming that the officer had inadequate basis to request a PBT.  At the hearing, the officer was asked if appellant’s version of the incident matched those provided by the other witnesses.  The officer testified, “Somewhat.  * * * He indeed had a green light but it was just a normal green light, he did not have the arrow, green arrow at that intersection.”  The district court sustained the license revocation.  This appeal followed.

D E C I S I O N

Appellant’s sole argument on appeal is that the district court erred in considering the results of the PBT because the officer did not articulate an adequate factual basis for requesting the PBT.

To request a PBT, a police officer must have reason to believe from the manner in which a person is or has been driving, operating, or controlling a vehicle that the person may be driving while impaired.  Minn. Stat. § 169A.41, subd. 1 (2002).  The police officer administering the PBT must have a specific and articulable suspicion that the person violated Minn. Stat. § 169A.20 (driving while impaired).  See State, Dept. of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981) (applying predecessor statute); see also State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986) (officer need only possess “articulable facts” to request a PBT, rather than higher standard of probable cause needed to request chemical test), review denied (Minn. 16 May 1986).  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).

The officer testified that he detected a slight odor of alcohol coming from appellant, that appellant admitted drinking three beers, and that appellant had caused an accident by turning in front of an oncoming truck without having a green turn arrow.  This testimony articulates sufficient indicia of impairment to request the PBT.  See, e.g., Hager v. Comm’r of Pub. Safety, 382 N.W.2d 907 (Minn. App. 1986) (PBT appropriately administered when officer noticed odor of alcohol on driver’s breath and driver’s bloodshot, watery eyes); Vievering, 383 N.W.2d at 730-31 (Minn. App. 1986) (facts sufficient to request PBT when officer observed motorist speeding, detected strong odor of alcohol, and discovered two open beer cans on floor).

Appellant relies on a predecessor statute, Minn. Stat. § 169.121 (1996), for the proposition that an officer must observe a person drive, operate, or control a vehicle to form a belief that a person had been driving while under the influence.  But both the current and predecessor statutes provide that an officer’s belief may be based on the manner in which the person “has driven, operated, or controlled a motor vehicle.”  See also Juncewski, 308 N.W.2d at 321 (stating that predecessor statute “clearly refers to both present and past conduct,” including “conduct not witnessed by the officer”).

Appellant also relies on Knapp v. Comm’r of Pub. Safety, 594 N.W.2d 239 (Minn. App. 1999), rev’d on other grounds, 610 N.W.2d 625 (Minn. 2000), to argue that a PBT request must be based on a person’s manner of exiting a motor vehicle or on some other voluntary action, not on the involuntary action of exhaling an alcohol odor.  But appellant’s reliance is misplaced.  In Knapp, this court held that articulable suspicion to sustain a stop for DWI could not be based solely on the results of a prior PBT where there was no evidence in the record that the factual requisites for the PBT existed.  Id. at 240.  Here, adequate factual requisites existed: the officer detected the odor of alcohol, and appellant admitted both having three beers and turning his car in front of an oncoming truck.

Finally, appellant suggests that the officer’s articulated reasons for administering the PBT should be given less weight because of the officer’s inexperience, as demonstrated by his request that appellant perform a PBT before other “standard field sobriety tests.”  But the officer testified,

At that point [after appellant admitted having three beers], due to the heavy rain and so I didn’t have to keep [appellant] out in the rain any longer than I needed to, I asked him to take a preliminary breath test.

 

Moreover, appellant cites no authority for the implications that an officer must administer other tests before administering a PBT or that an officer’s inexperience affects the validity of a decision to administer a PBT.

We conclude that the officer had a sufficient articulable basis to request the PBT and that the district court did not err by considering the PBT when finding probable cause.

Affirmed.



* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.