This opinion will be unpublished and

may not be cited except as provided by

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








State of Minnesota,





Michael Dana Patterson,




Filed November 16, 2004

Affirmed in part, reversed in part, and remanded

Parker, Judge*


Pipestone County District Court

File No. T7-03-1111


Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN  55101; and


James E. O’Neill, Pipestone County Attorney, Damain D. Sandy, Assistant County Attorney, 114 North Hiawatha Avenue, Pipestone, MN  56164 (for respondent)


Michael Dana Patterson, 209 Eighth Street East, Jasper, MN  56144 (pro se appellant)


            Considered and decided by Halbrooks, Presiding Judge; Schumacher, Judge; and Parker, Judge.

U N P U B L I S H E D   O P I N I O N




            On May 22, 2003, Deputy Tim Schultz responded to a report of a single-vehicle accident.  When he arrived at the scene, Schultz noted there was only one person in the vehicle.  The fire department used force to open the vehicle door, and Schultz noted blood on the occupant’s face, as well as the strong odor of alcohol.  The occupant of the vehicle was eventually identified as appellant Michael Dana Patterson.

            Appellant was removed from the vehicle and transported to the hospital.  Schultz arrived at the hospital shortly after appellant, and Schultz told Deputy Sam Saletel he believed appellant was driving a vehicle while under the influence of alcohol.  Schultz told Saletel to administer the implied-consent advisory.  Upon finding appellant, Saletel noted he smelled of alcohol, had bloodshot eyes, and slurred his speech.  The implied-consent advisory was then read to appellant, he waived his right to counsel, and agreed to provide a blood sample.  The blood sample was eventually tested by the Bureau of Criminal Apprehension (BCA), and the result was an alcohol concentration of 0.19.

            Appellant waived a jury trial at a hearing before the court on December 2, 2003.  Appellant appeared pro se for a bench trial on February 26, 2004.  When the court asked if he was ready for trial, appellant instead argued motions to dismiss and to compel discovery.  After arguing his motions, appellant stated, “[T]his defendant withdraws his waiver of right to trial by jury.”  The district court denied appellant’s motions, as well as his withdrawal of the jury trial waiver, stating his withdrawal was “too late.”  The prosecution offered to consent to the withdrawal of the jury trial waiver if appellant paid reasonable costs incurred by the prosecution’s witnesses.  Appellant refused to agree to this suggestion.  The district court proceeded with the scheduled bench trial and found appellant guilty of fourth-degree driving while impaired.  We affirm in part, reverse in part, and remand.


I.          September 15, 2003, complaint

            Appellant contends the September 15, 2003, complaint was insufficient in accordance with various Minnesota and Federal Rules of Civil Procedure.  But appellant misunderstands the applicability of the rules of civil procedure.  “These rules govern the procedure in the district courts of the State of Minnesota in all suits of a civil nature . . . .” Minn. R. Civ. P. 1 (emphasis added).  Appellant’s reliance on the rules of civil procedure is misguided because this is a criminal case, not a civil case.  Therefore, the Minnesota Rules of Criminal Procedure apply to the prosecution of appellant for fourth-degree DWI. Minn. R. Crim. P. 1.01 (stating the rules of criminal procedure govern the prosecutions of misdemeanors).

II.         Speedy trial

            Appellant maintains he was denied his right to a speedy trial.  Minn. R. Crim. P. 6.06 states, “On demand made in writing or orally on the record by the prosecuting attorney or the defendant, the trial shall be commenced within sixty (60) days from the date of the demand . . . .”  (Emphasis added.)  Appellant made an oral speedy-trial demand in accordance with rule 6.06 on December 31, 2003.  Appellant’s trial took place on February 26, 2004, 57 days after his speedy-trial demand.  The district court properly denied appellant’s various motions to dismiss based on his speedy-trial demand, and appellant’s trial took place within the requisite time period required by rule 6.06.

III.       Lawful arrest

            Appellant asserts he was unlawfully arrested following the single-vehicle accident. Appellant relies on Minn. Stat. §§ 629.34 and 169.99 (2002), and Minn. R. Crim. P. 6.01.  Contrary to appellant’s argument, a peace officer may arrest a defendant without a warrant rather than issue a citation.  Minn. Stat. §§ 169A.40, subd. 1 (2002) (“A peace officer may lawfully arrest a person for violation of section 169A.20 (driving while impaired) . . . without a warrant upon probable cause, without regard to whether the violation was committed in the officer's presence.”), 169.91, subd. 1(4) (2002) (stating an accused may be taken into custody “when the person is arrested upon a charge of driving or operating or being in actual physical control of any motor vehicle while under the influence of intoxicating liquor or drugs” (emphasis added)); Minn. R. Crim. P. 6.01.

IV.       Blood sample and implied-consent advisory

            Appellant alleges there was insufficient evidence to establish probable cause requiring the implied-consent advisory.  Minn. Stat. § 169A.51, subd. 1(a) (2002) states:

Any person who drives, operates, or is in physical control of a motor vehicle within this state or on any boundary water of this state consents . . . to a chemical test of that person's blood, breath, or urine for the purpose of determining the presence of alcohol, controlled substances, or hazardous substances.


[t]he test may be required of a person when an officer has probable cause to believe the person was driving, operating, or in physical control of a motor vehicle in violation of section 169A.20 (driving while impaired), and one of the following conditions exist:

            . . . .

            (2)  the person has been involved in a motor vehicle accident or collision resulting in property damage, personal injury, or death[.]


Id., subd. 1(b)(2).  Additionally, “[m]any telltale signs of intoxication exist independently or in combination with others.  All signs need not be exhibited in every case.  In fact, an officer need only have one objective indication of intoxication to constitute reasonable and probable grounds to believe a person is under the influence.”  Holtz v. Comm’r of Pub. Safety, 340 N.W.2d 363, 365 (Minn. App. 1983) (emphasis added); see also State v. Laducer, 676 N.W.2d 693, 697-98 (Minn. App. 2004) (affirming an officer’s need to only have one objective indication of intoxication).

            Appellant neglects the factual elements supporting probable cause to arrest him: Schultz observed that appellant was the only person in the vehicle; the fire department used force to open the vehicle door; Schultz noticed blood on the occupant’s face, as well as the strong odor of alcohol; Saletel observed that appellant smelled of alcohol, had bloodshot eyes, and slurred his speech.  Based on these facts, it was reasonable for the deputies to infer appellant was operating the vehicle at the time of the accident and that appellant had been drinking prior to the accident.

            Appellant maintains that the deputies never saw him operate the vehicle or in possession of the keys.  But physical control, rather than actual operation, of the vehicle is necessary for DWI offenses.  Minn. Stat. § 169A.51, subd. 1(a) (2002).  And it is a reasonable inference that appellant was in physical control of the vehicle at the time of the accident because there were no other persons in the car or at the scene, appellant was still inside the vehicle when Schultz arrived, appellant sustained injuries consistent with an auto accident, and the fire department needed to employ force to pry open the car door when removing appellant from the vehicle.

            Because there was sufficient evidence establishing probable cause, the deputy acted appropriately in reading the implied-consent advisory, taking the blood sample, and arresting appellant.  The district court properly determined there was probable cause supporting application of the implied-consent law.

V.         Suppression of physical evidence

            Appellant maintains the district court erred in failing to suppress physical evidence collected by the deputies.  There is no requirement of a Miranda warning before reading the implied-consent advisory and administering an alcohol-concentration test.  State v. Gross, 335 N.W.2d 509, 510 (Minn. 1983).  Having determined that appellant’s arrest was lawful, the implied-consent advisory was appropriate, and the blood sample was properly collected, suppression of the evidence at trial would have been inappropriate.  The district court properly admitted the evidence.

VI.       Withdrawal of jury trial waiver

            Appellant maintains that the district court erred in denying his request to withdraw his jury trial waiver.  Minn. R. Crim. P. 26.01 states, “Waiver of jury trial may be withdrawn by the defendant at any time before the commencement of trial.”  Minn. R. Crim. P. 26.01, subd. 1(3).  The comment to the rule states, “Trial is commenced when jeopardy attaches.”  Id. cmt.  “In a trial to the court sitting without a jury, jeopardy attaches when the first evidence is presented.”  City of St. Paul v. Hurd, 299 Minn. 51, 55, 216 N.W.2d 259, 262 (1974); see also Serfass v. United States, 420 U.S. 377, 388, 95 S. Ct. 1055, 1062 (1975) (stating jeopardy attaches in  a bench trial when the court begins to hear evidence); State v. Caswell, 551 N.W.2d 252, 254-55 (Minn. App. 1996) (stating jeopardy attaches in a bench trial when the first witnesses are sworn and the court begins to hear evidence).  Appellant requested withdrawal of his jury trial waiver before any evidence was introduced.  Therefore, the trial did not commence, jeopardy did not attach, and the district court erred in refusing to allow appellant to withdraw his jury trial waiver.

            We affirm the district court with respect to issues I, II, III, IV, and V.  We reverse regarding issue VI, vacate the conviction, and remand to the district court for further proceedings consistent with this opinion.

            Affirmed in part, reversed in part, and remanded.

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