This opinion will be unpublished and

may not be cited except as provided by

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







Mark Shimer,






Commissioner of Public Safety,



Filed May 25, 2004


Anderson, Judge


Cass County District Court

File No. C1-03-286



Rich Kenly, P.O. Box 31, Backus, MN  56435 (for appellant)


Mike Hatch, Attorney General, Willow Najjar, Assistant Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101-2143 (for respondent)


            Considered and decided by Hudson, Presiding Judge; Anderson, Judge; and Crippen, Judge*.

U N P U B L I S H E D  O P I N I O N




            The Commissioner of Public Safety revoked the driving privileges of appellant after appellant was arrested for driving while impaired.  Appellant petitioned the district court to reinstate his driving privileges; the district court sustained the revocation of appellant’s license.  Appellant appeals that judgment, arguing that the district court’s findings of fact are clearly erroneous regarding appellant’s defense of post-driving consumption.  Because the district court’s findings of fact are not clearly erroneous, we affirm.



            In March 2003, Officer Wayne Tennis observed an individual, wearing a purple Ski-Doo jacket and operating a snowmobile, leave the area of the Zona Rosa restaurant parking lot in Walker, Minnesota.  The individual failed to stop for a stop sign.  The individual was later identified as appellant Mark Allen Shimer; Shimer does not contest this identification.

            Tennis, who was on foot, first tried to chase the snowmobile, but then returned to his patrol car and called Deputy Robert Stein for assistance.  Tennis and Stein conducted an investigation, including calling the bartender at Zona Rosa who confirmed that Shimer had been at the restaurant and had been drinking alcohol before he left, and found that Shimer was going to another bar, Charlie’s Up North.  Tennis called Charlie’s Up North and spoke with the bartender there, Bradley Thompson.  Thompson told Stein that Shimer was at Charlie’s Up North and had been served one bottle of beer while there. 

            Tennis and Stein went to Charlie’s Up North and Shimer came out of the bar to speak with the officers.  At that point, the officers observed that Shimer displayed indicia of alcohol consumption.  The officers administered a PBT to Shimer; he failed the test with an alcohol concentration of .237 and was arrested.  After Shimer was transported to the Cass County jail, Tennis read Shimer the implied consent advisory, and Shimer submitted to an Intoxilyzer breath test.  Shimer’s Intoxilyzer test revealed an alcohol concentration of .21.  The Commissioner of Public Safety revoked Shimer’s driving privileges based on the incident. 

            At trial, three witnesses who were at Charlie’s Up North that night testified on Shimer’s behalf.  The state called Tennis, Stein, and Thompson to testify.  The district court affirmed the revocation of Shimer’s driving privileges, concluding that Shimer did not prove the affirmative defense of post-driving consumption of alcohol; Shimer now appeals.



            We review the district court’s ruling on post-driving consumption under the clearly erroneous standard.  Dutcher v. Comm’r of Pub. Safety, 406 N.W.2d 333, 336 (Minn. App. 1987).  We will not set aside the district court’s findings of fact, including its credibility determinations, unless those, too, are clearly erroneous.  Thorud v. Comm’r of Pub. Safety, 349 N.W.2d 343, 344 (Minn. App. 1984).  Findings of fact are clearly erroneous when they are not “reasonably supported by evidence in the record considered as a whole.”  Hubbard v. United Press Int’l, Inc., 330 N.W.2d 428, 441 (Minn. 1983). 

            Post-driving alcohol consumption is an affirmative defense to driving while impaired under the implied consent statute.  Dutcher, 406 N.W.2d at 336.  To avail himself of the defense, Shimer must prove: (1) that he was drinking after the “time of actual driving, operating, or physical control” of the vehicle, but before he took the Intoxilyzer test, and (2) that this later drinking caused his alcohol concentration to equal or exceed .10 at the time of testing.  Id

            Shimer argues that because the findings of fact of the district court were clearly erroneous, and because the decision of the district court that Shimer did not prove the post-driving consumption of alcohol defense is based on these clearly erroneous findings, we must reverse the judgment of the district court.  We disagree.

            What Shimer is asking this court to do is reweigh the trial testimony and credit the version of events set forth by Shimer’s witnesses.  Here, several witnesses testified on behalf of Shimer.  Shimer’s witnesses contradicted the testimony of the state’s witnesses that Shimer had only a single beer to drink while he was at Charlie’s Up North.  But the district court found the witnesses for the state credible and rejected the testimony of Shimer’s witnesses.  See Thorud, 349 N.W.2d at 344 (stating that the factual findings of the district court are upheld unless clearly erroneous).  Because we review the district court’s findings of facts, including credibility determinations, under the clearly erroneous standard, and because the district court’s decision to credit the testimony of the state’s witnesses is not clearly erroneous, we will not disturb the district court’s findings of fact.  See id. 

            Further, based on these findings of fact, the district court concluded that Shimer had not proven the post-driving consumption of alcohol affirmative defense.  Because this conclusion is not clearly erroneous in light of the record, we affirm.  See Dutcher, 406 N.W.2d at 336 (stating that the ruling of the district court on post-driving consumption will not be disturbed unless clearly erroneous).


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