This opinion will be unpublished and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

A03-319

 

Charles E. Devaney, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

 

Filed January 27, 2004

Affirmed

Wright, Judge

 

Scott County District Court

File No. C-02-17467

 

 

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

 

Mike Hatch, Attorney General, Willow Najjar, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101 (for respondent)

 

 

            Considered and decided by Lansing, Presiding Judge; Minge, Judge; and Wright, Judge.

 

 

U N P U B L I S H E D  O P I N I O N

 

WRIGHT, Judge

 

In challenging a decision sustaining the revocation of his driving privileges, appellant argues that the district court erred in (1) finding him in physical control of his motor vehicle even though the vehicle was inoperable and (2) holding that the officer did not seize him when he was placed in the back seat of the squad car.  We affirm.

FACTS

 

On August 3, 2002, at approximately 10:38 p.m., State Trooper Wade Erickson pulled up behind a stalled vehicle near the intersection of highways 169 and 41.  Trooper Erickson walked up to the vehicle, observed a key in the ignition, and attempted to start the vehicle.  The vehicle would not start.  After calling for a tow truck, Trooper Erickson conducted an inventory search of the vehicle and found two open beer bottles containing small amounts of liquid and an open 12-pack of beer behind the passenger seat.  A few minutes later, Trooper Erickson observed appellant Charles Devaney walking up to the vehicle with a gas can.  Devaney put gas in the stalled vehicle.  Trooper Erickson approached Devaney and asked him to drive to the nearby gas station.  Because the vehicle would not start, Trooper Erickson asked Devaney to sit in the back of the squad car while they waited for the tow truck.

            While in the squad car, Trooper Erickson smelled alcohol and asked Devaney if he had been drinking.  Devaney admitted that he had been drinking earlier that afternoon.  At that time, Trooper Erickson observed various indicia of intoxication, including slurred speech and bloodshot eyes.  Trooper Erickson administered field sobriety tests and asked Devaney to submit to a preliminary breath test (PBT).  The PBT registered .118.  Sometime during the course of events, Devaney’s wife arrived and told Trooper Erickson that she was there to call a tow truck.

            Devaney was arrested for third-degree driving while impaired (DWI) and possession of an open bottle in a motor vehicle.  His driving privileges were revoked pursuant to the implied consent law.  At the implied consent hearing, Devaney challenged the basis for revoking his driving privileges, arguing that he was not in physical control of his vehicle and that his seizure was unconstitutional.  The district court ruled that      (1) Devaney was in physical control of his vehicle even though the vehicle was inoperable and (2) placing Devaney in the squad car did not constitute an unconstitutional seizure.  The district court sustained the revocation of Devaney’s driving privileges, and this appeal followed. 

D E C I S I O N

 

Devaney first argues that the district court erred in finding that he was in physical control of his vehicle because it was mechanically inoperable.  Whether Devaney was in physical control of the vehicle is a question of law, which we review de novo.  See Snyder v. State, Comm’r of Pub. Safety, 496 N.W.2d 858, 860 (Minn. App. 1993).

The Commissioner of Public Safety has a duty to revoke the driver’s 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 or has refused an implied consent test.  Minn. Stat.             § 169A.52, subd. 4 (2002).  “The term ‘physical control’ is more comprehensive than either ‘drive’ or ‘operate.’”  State v. Starfield, 481 N.W.2d 834, 836 (Minn. 1992).  A person is in “physical control of the vehicle if [that person] has the means to initiate any movement of that vehicle and . . . is in close proximity to the operating controls of the vehicle.”  State v. Duemke, 352 N.W.2d 427, 432 (Minn. App. 1984); Starfield, 481 N.W.2d at 837 (stating that physical control “cover[s] situations . . . 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”).  The danger need not result from actual driving but in the potential of the vehicle to become a traffic hazard.  Starfield, 481 N.W.2d at 838.  Indeed, the legislature intends the implied consent statute to be given the “broadest possible effect.”  State, Dep’t of Pub. Safety v. Juncewski, 308 N.W.2d 316, 319 (Minn. 1981). 

Physical control is measured by the totality of the circumstances.  Shane v. State, Comm’r of Pub. Safety, 587 N.W.2d 639, 641 (Minn. 1998).  Where a temporarily inoperable vehicle can be “quickly remedied,” the vehicle’s inoperability does not preclude a finding of physical control.  See, e.g., Starfield, 481 N.W.2d at 838 (physical control found where vehicle needed to be towed from a ditch); State v. Hendricks, 586 N.W.2d 413, 415-16 (Minn. App. 1998) (physical control found where vehicle was lodged in snow bank), review denied (Minn. Feb. 18, 1999); Abeln v. Comm’r of Pub. Safety, 413 N.W.2d 546, 548 (Minn. App. 1987) (physical control found where vehicle had a dead battery); State v. Woodward, 408 N.W.2d 927, 928 (Minn. App. 1987) (physical control found where vehicle had a flat tire); State v. Thurmer, 348 N.W.2d 776, 779 (Minn. App. 1984) (physical control found where vehicle was stuck in a snow-filled ditch). 

Here, the district court concluded that Devaney was in physical control of his vehicle even though the vehicle was inoperable.  The district court reasoned that

[t]he vehicle engine may have “flooded” and it would start after a few minutes wait, or the vehicle might have started with continued effort to start the vehicle.  This is no different than the driver with a dead battery that is waiting for a “jump,” a flat tire waiting for a spare, or a vehicle in a ditch where the driver is waiting for a tow.

 

The record establishes that Trooper Erickson pulled up behind a stalled vehicle, found a key in the ignition, and attempted to start the vehicle.  Shortly thereafter, Trooper Erickson observed Devaney walking up to the vehicle with a gas can.  Devaney poured gas into the vehicle, but the vehicle would not start.  Devaney had not arranged for a tow truck and, as the district court noted, Devaney was not aware of any driving impediment other than lack of gas.  Trooper Erickson did not need probable cause to believe that Devaney had been driving.  He merely needed probable cause to believe that Devaney was in physical control of the vehicle.  Minn. Stat. § 169A.51, subd. 1(b).[1]  Based on the record before us, the district court correctly determined that Devaney was in physical control of his motor vehicle. 

Devaney next argues that he was unlawfully seized when Trooper Erickson asked Devaney to sit in the back of his squad car.  In the absence of disputed facts, we consider as a matter of law whether the trooper’s actions amounted to a seizure and, if so, whether the officer had a reasonable, articulable suspicion to warrant the seizure.  Kranz v. Comm’r of Pub. Safety, 539 N.W.2d 420, 422 (Minn. App. 1995).  Not every citizen-police contact constitutes a seizure.  In re E.D.J., 502 N.W.2d 779, 781 (Minn. 1993).  “When, under the totality of circumstances, a reasonable person would believe that, because of the conduct of the police, he or she is not free to leave, then a ‘seizure’ has occurred[.]”  State v. Bergerson, 659 N.W.2d. 791, 795 (Minn. App. 2003) (citing E.D.J., 502 N.W.2d at 783). 

The district court determined that placing Devaney in the squad car did not constitute an unconstitutional seizure because Trooper Erickson directed Devaney to sit in the backseat merely for Devaney’s comfort and protection while they waited for the tow truck.  At that time, no unlawful activity was even suspected.  The district court correctly concluded that, under the totality of circumstances, Devaney’s wait “did not even rise to the level of infringement of an investigatory seizure.” 

At the implied-consent hearing, Trooper Erickson testified that, after observing Devaney’s vehicle located in the left-hand turn lane, he called for a tow truck.  Due to the rain, the darkness, and his concern for Devaney’s safety, Trooper Erickson asked Devaney to sit in the back of the squad car until the tow truck arrived.  Trooper Erickson’s safety concerns were especially appropriate given of the location of Devaney’s vehicle.  At that time, Devaney was not under arrest.  And there is no evidence in the record that leads us to conclude that, because of the trooper’s conduct, a reasonable person would believe that he or she was not free to leave.  Rather, under the circumstances, a person reasonably could have perceived that the trooper was providing safe refuge from a potentially dangerous location until roadside assistance arrived.  See State v. Pfannenstein, 525 N.W.2d 587, 589 (Minn. App. 1984) (finding no seizure occurred where officer approached motorist having trouble with his motorcycle; “[t]he officer’s approach could reasonably have been perceived as an offer of assistance”), review denied (Minn. Mar. 14, 1995).  Accordingly, we conclude that the district court correctly determined that Devaney’s wait in the squad car prior to the arrival of the tow truck was not a seizure.

            Affirmed.

 

 

 



[1]  Citing State v. Pazderski, 352 N.W.2d 85 (Minn. App. 1984), Devaney argues that he was not in physical control because he had no intention of driving the vehicle from its location.  Devaney’s claim is inconsistent with the reasonable inference drawn from his actions, namely, filling the stalled vehicle with gas upon his return to the location.  Based on the record before us, we agree with the district court’s rejection of this claim.