This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).






State of Minnesota,





Michael J. Faber,



Filed March 1, 2005


Toussaint, Chief Judge


Ramsey County District Court

File No. K6-03-1488


Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and


Philip C. Carruthers, Assistant Ramsey County Attorney, 50 W. Kellogg Blvd., Suite 315, St. Paul, MN 55102 (for respondent)


Benjamin Jon Butler, Assistant State Public Defender, 2221 University Avenue SE, Suite 425, Minneapolis, MN 55414 (for appellant)


            Considered and decided by Minge, Presiding Judge; Toussaint, Chief Judge; and Schumacher, Judge.

U N P U B L I S H E D  O P I N I O N


TOUSSAINT, Chief Judge


Appellant Michael Faber, who was involved in a car accident, challenges his conviction for driving while intoxicated, arguing that the trial court erred in denying his motion to dismiss the complaint and excluding evidence of the vehicle’s inoperability.  Because (1) the evidence was sufficient to establish probable cause that Faber was driving the vehicle while intoxicated and (2) the trial court did not abuse its discretion in excluding evidence regarding the car’s inoperability, we affirm.



            Faber first argues that the evidence was insufficient to establish probable cause that he was driving the vehicle while intoxicated.  “[T]he test of probable cause is whether the evidence worthy of consideration . . . brings the charge . . . within reasonable probability.”  State v. Koenig, 666 N.W.2d 366, 372 (Minn. 2003) (quotation omitted).  This court will accept the trial court’s findings of fact unless clearly erroneous, but legal determinations are reviewed de novo.  Id.

            At the Rasmussen hearing, Kyle Baumgarten, a motorist who came to Faber’s assistance, testified that he did not see the accident, but when he approached the vehicle he saw Faber behind the wheel and no one else in the vehicle or vicinity.  The doors of the vehicle were shut, and the airbags were deflating.  Faber did not mention that he was not the driver, but instead, asked Baumgarten not to call the police because he had been drinking.  Baumgarten observed Faber repeatedly and unsuccessfully attempt to start the vehicle. 

            Minnesota State Trooper James Koenig testified that when he arrived at the scene of the accident, Faber told him that he was not the driver, but he did not give the driver’s name.  In the squad car, Faber told the trooper: “[S]omebody cut me off over there,” and then immediately corrected himself and stated “Cut us off.”  He had the keys to the vehicle in his pocket and evidence produced at the hearing proved that he was the owner.  The result of his breath test was .16.

            In support of his motion to dismiss, Faber submitted (1) the affidavit of Mary French, who claimed to have been the driver of the vehicle at the time of the accident and (2) the affidavit of Daniel York, who interviewed French’s boyfriend, Joseph Moss, who stated that when Faber and French left his home that evening, she was driving the vehicle.  Faber claims that this exonerating evidence, together with the state’s failure to produce a witness who saw him drive the vehicle, supports a finding that no probable cause existed to believe he was driving the vehicle.  Nevertheless, “the production of exonerating evidence by a defendant at the probable cause hearing does not justify the dismissal of the charges if the record establishes that the prosecutor possesses substantial evidence that will be admissible at trial and that would justify denial of a motion for a directed verdict of acquittal.”  State v. Rud, 359 N.W.2d 573, 579 (Minn. 1984).  We find that here, the state’s evidence, if believed, would establish Faber was driving a motor vehicle while intoxicated.              In light of the testimony of Baumgarten and Trooper Koenig and of vehicle ownership and the trooper video, it was not clearly erroneous for the trial court to conclude that Faber was the driver of the vehicle.  Thus, the trial court could properly deny Faber’s motion to dismiss.


            Next, Faber argues that the trial court abused its discretion in excluding evidence regarding the car’s inoperability.  Absent erroneous interpretation of the law, the question of whether to admit or exclude evidence is within the district court’s discretion.  Kroning v. State Farm Auto. Ins. Co., 567 N.W.2d 42, 45-46 (Minn. 1997).  Only relevant evidence is admissible at trial.  Minn. R. Evid. 402.

            Operability of a motor vehicle is not an element of the crime of being in “physical control” of a motor vehicle while intoxicated, and the state need not prove operability.  State v. Starfield, 481 N.W.2d 834, 838-39 (Minn. 1992).  Although operability may be relevant in some cases to show physical control of the vehicle, here, the fact that the vehicle became inoperable after the accident was not relevant.  In light of the court’s broad discretion in evidentiary matters and evidence that the vehicle was being operated prior to the accident, the trial court did not abuse its discretion in excluding the evidence.