This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2004).
IN COURT OF APPEALS
Michael Curtis Danielson,
Filed April 12, 2005
Reversed and remanded
Gordon W. Shumaker, Judge
Olmsted County District Court
File No. K5-04-1700
Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and,
Terry L. Adkins, Rochester City Attorney, Peter D. Magnuson, Assistant City Attorney, 201 S.E. Fourth Street, Room 247, Rochester, MN 55904-3780 (for appellant)
Carl F. Anderson, Anderson Law Office, 1812 Second Street S.W., Suite B, Rochester, MN 55902 (for respondent)
Considered and decided by Shumaker, Presiding Judge, Toussaint, Chief Judge; and Dietzen, Judge.
GORDON W. SHUMAKER, Judge
The state appeals from a pretrial order suppressing evidence and dismissing gross misdemeanor charges of third-degree driving while impaired and third-degree driving with an excess alcohol concentration, arguing that the district court clearly erred in ruling that the officer who stopped respondent’s vehicle; saw that respondent’s eyes were bloodshot; smelled an odor of alcohol; obtained respondent’s admission that he had been drinking; and administered field sobriety tests, some of which respondent failed, lacked articulable suspicion to require respondent to take a preliminary breath test. The state also argues that the court erred in concluding the officer lacked probable cause to arrest respondent. Because there was probable cause for arrest, we reverse and remand for further proceedings.
Minnesota State Trooper Barstad has been a law enforcement officer for 18 years. On May 2, 2004, at 2:39 a.m., he clocked respondent’s vehicle at 69 miles per hour in a 55-mile-per-hour zone. He stopped the vehicle and identified the driver as respondent Michael Danielson. The trooper detected an odor of alcohol coming from the vehicle and observed that respondent’s eyes were bloodshot. The trooper asked respondent if he had consumed any alcoholic beverages and respondent stated that he had approximately four drinks at a wedding dance and that his last drink was approximately an hour and a half before he began to drive home.
After this brief conversation, the trooper asked respondent to get out of the vehicle so that he could take field sobriety tests. The first test was the horizontal gaze nystagmus test (HGN test). The HGN test involved the trooper watching respondent’s eyes as they moved to determine if there is any involuntary jerking. The trooper asked respondent if he had any problems with his eyes. The respondent indicated that he wore contact lenses but did not have any other trouble. The trooper testified that he looked for six “clues” when administering the HGN test, including the lack of smooth pursuit, nystagmus at maximum deviation, and nystagmus prior to a 45-degree angle. The trooper observed each of these clues in both of respondent’s eyes for a total of six clues.
The second test the trooper administered was the “walk and turn test” in which there are eight clues, the existence of any two being considered failing. The trooper observed two clues in respondent’s completion of this test. The trooper testified that respondent completed an improper turn and failed to touch heel to toe on three of the steps.
The third test the trooper administered was the “one leg stand” test. In this test respondent was asked to stand with his arms out to the side, raise one leg off the ground six inches, and count by thousands. Respondent had to be reminded to count by thousands but did not miss any of the “clues” the trooper looks for and therefore passed this test.
trooper asked respondent to complete a preliminary breath test (PBT). The PBT produced a reading of .129,
indicating a blood-alcohol content exceeding the legal limit. The trooper then arrested respondent and
transported him to the
Respondent moved to dismiss the charges, arguing that there was not sufficient evidence for the trooper to request a preliminary breath test, and therefore no probable cause to request a breath test at the police department. The district court heard this motion on August 11, 2004, and granted it on September 13, 2004. The state appealed.
the state appeals pretrial suppression orders, it “must clearly and
unequivocally show both that the trial court’s order will have a ‘critical
impact’ on the state’s ability to prosecute the defendant successfully and that
the order constituted error.” State
v. Scott, 584 N.W.2d 412, 416 (
“[W]hen reviewing a pre-trial order
suppressing evidence where the facts are not in dispute and the trial court’s
decision is a question of law, the reviewing court may independently review the
facts and determine, as a matter of law, whether the evidence need be
suppressed.” State v. Othoudt,
482 N.W.2d 218, 221 (
1. Specific and articulable facts for PBT
Appellant argues that the district
court erred when it concluded that the trooper did not have the requisite
specific, articulable facts to require the PBT.
A peace officer is authorized to require a PBT when the officer has
reason to believe from the manner in which a person is operating a motor
vehicle or from the person’s actions upon departure from a vehicle that the
driver may be or has been driving while impaired. Minn. Stat. § 169A.41, subd. 1
(2004). An officer may request a PBT if
he possesses specific and articulable facts that form a basis to believe that a
person is or has been driving a motor vehicle while under the influence of an
intoxicating beverage. State v.
Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986), review denied (May
16,1986). The officer does not need
probable cause to administer a PBT.
Reversed and remanded.