This opinion will be unpublished and

may not be cited except as provided by

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







Schaun Kevin Waste, petitioner,





Commissioner of Public Safety,



Filed May 10, 2005


Lansing, Judge


Hennepin County District Court

File No. IC 482937



Daniel B. Mohs, Daniel Mohs & Associates, Ltd., 201 Ridgewood Avenue, Minneapolis, MN 55403-3508 (for appellant)


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


            Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Stoneburner, Judge.

U N P U B L I S H E D   O P I N I O N


Schaun Waste appeals the district court’s order sustaining the revocation of his driver’s license under the implied-consent law, arguing that he proved the affirmative defense of postdriving consumption.  Because the district court did not clearly err in determining that Waste failed to prove the affirmative defense by a preponderance of the evidence, we affirm.


Plymouth police officers arrested Schaun Waste on two outstanding warrants and on probable cause for driving while impaired.  Following chemical testing that reported an alcohol concentration of .12, the commissioner of public safety revoked Waste’s driving privileges.  Waste petitioned for judicial review.

At the hearing Waste testified that on the evening preceding his arrest he had driven to a local bar to meet two friends for drinks.  Before going to the bar, he had worked a long day, played softball, and eaten dinner.  He said that he did not consume any alcohol before going to the bar.  According to the testimony of Waste and one of the friends, the three of them shared a pitcher of beer at the bar, and Waste consumed two and a half plastic cups, or thirty ounces, of beer from the pitcher.  After an hour, at approximately 1:00 a.m., Waste left the bar, talked with his friends in the parking lot for about twenty minutes, and then drove away.  As he was driving, he saw a small animal on the road and swerved to the right to avoid hitting it.  His pickup went off the road and down an embankment where it was immobilized at about 1:45 a.m.

            A passing motorist offered Waste a ride home, which Waste accepted.  The motorist testified to his observations of Waste’s condition.  He said that when Waste “stepped out of his vehicle he fell underneath it actually.”  He explained that although the embankment was pitched it was “not very difficult to walk,” but that someone who had been drinking would have had trouble climbing it.  Waste needed assistance climbing the hill and had trouble with his balance.  The motorist testified that he thought Waste was intoxicated, that Waste smelled as though he had been drinking, and that Waste needed some time to remember and describe where he lived.  He also stated that Waste had difficulty staying awake on the drive home either because Waste was really tired or drunk.

A Plymouth police officer was dispatched to investigate the one-vehicle accident.  Inside the pickup, the officer found personal items that included Waste’s I.D.  A computer check reported that Waste had two outstanding warrants, and the clerk dispatcher confirmed Waste’s address as listed on the warrants.  Following a conversation with the motorist who had returned to the area after dropping Waste at home, the investigating officer requested that back-up officers execute the warrants and check on Waste’s condition.

Waste testified that he arrived home roughly forty-five minutes before police knocked at his door.  He testified that he drank four double shots, or ten ounces, of tequila after arriving home because he was worried about the consequences of driving his employer’s pickup off the road when he did not have a valid license.  Waste admitted to lying to the officers when he told them that he had not driven the pickup into the ditch, but claimed that he lied only to protect his job and that he later admitted that he was driving.  The officers arrested Waste on the warrants and for driving while impaired.  Waste consented to an Intoxilyzer test, which showed his alcohol concentration to be .12 at the time of testing.

The record contains conflicting testimony about whether Waste told the officers that he had been drinking at home.  Waste testified that he repeatedly told the officers that he had been drinking at home after the accident.  The arresting officer, who did not enter the apartment, testified that Waste did not tell her that he had been drinking at home and that she did not see a tequila bottle or shot glass.  A second officer, who spoke with Waste at the public safety building, testified that, in the process of transferring Waste to his control, one of the officers told him that “the suspect did make a comment that he’d been sitting at home drinking.”

            The results of the Intoxilyzer test were admitted by stipulation, and Waste also admitted that the state had demonstrated a prima facie case, leaving only the issue of postdriving consumption for trial.  An expert witness for Waste testified that, assuming Waste drank only thirty ounces of beer, his alcohol concentration would have been less than .10 at the time of the accident.  She further testified that, assuming Waste drank four double shots of tequila in forty-five minutes, his alcohol concentration, after accounting for elimination, would have been more than .10 at the time of the test.  The witness acknowledged that the accuracy of her computation depended on the accuracy and truthfulness of Waste’s statements on his alcohol consumption.  The district court, in detailed findings, sustained the revocation of Waste’s driving privileges, and Waste appeals.


Postdriving alcohol consumption is an affirmative defense to license revocation under the implied-consent statute.  Minn. Stat. § 169A.46, subd. 1 (2002); Dutcher v. Comm'r of Pub. Safety, 406 N.W.2d 333, 336 (Minn. App. 1987).  Under the law in effect at the time of Waste’s arrest, the affirmative defense required the defendant to establish by a preponderance of the evidence: (1) he consumed alcohol after the time of violation but before the administration of the test, and (2) this postdriving consumption caused his alcohol concentration to meet or exceed .10 at the time of testing.  Minn. Stat. § 169A.46, subd. 1; Dutcher, 406 N.W.2d at 336.  Because the affirmative defense raises factual issues, we review the district court’s determination under a clear-error standard.  Minn. R. Civ. P. 52.01 (stating general standard for findings of fact); Dutcher, 406 N.W.2d at 336 (applying standard to postdriving consumption defense). 

The district court accepted Waste’s expert evidence on the correlation between alcohol consumption and alcohol dissipation but observed that the expert’s conclusion that was drawn from this analysis was predicated on Waste’s report of his postdriving consumption.  Consequently the district court’s determination relied on a credibility assessment of the nonexpert witnesses. 

In detailed findings the district court set forth its reasons for accepting or rejecting the testimony at the hearing.  The district court noted that Waste had an apparent self-interest in the outcome of the case, that he admittedly lied in his initial contact with the officers by denying his involvement in the accident, and that this lie showed his “willingness to be dishonest in order to avoid responsibility.”  The court further observed that Waste’s testimony about drinking four double shots of tequila in forty-five minutes was not credible when compared to his stated rate of consumption earlier in the evening.  In evaluating the weight and credibility of the testimony of Waste’s friend, the district court noted that the testimony was not impartial nor conclusive on the issue of postdriving consumption.

The district court attached significant credibility to the testimony of the passing motorist who observed Waste immediately after he was driving and during the ride home.  The court concluded that the motorist’s testimony was the most credible because he had no interest in the hearing’s outcome and because he had a substantial opportunity to observe Waste’s condition immediately following his driving and during the twelve-to-fifteen-mile drive to Waste’s home.  According to the motorist’s testimony, Waste smelled of alcohol, fell while getting out of his immobilized pickup, needed help climbing the hill, could not immediately remember where he lived, and had trouble staying awake on the drive home.  Based on the evidence, the district court determined that Waste was substantially impaired at the time his pickup went down the embankment and that the degree of the impairment supported the accuracy of the reported value of the alcohol-concentration test.  The court therefore rejected Waste’s affirmative defense of postdriving consumption. 

A district court’s credibility determinations are anchored on its opportunity to personally observe the witnesses and to gauge their candor and demeanor.  Appellate courts, for this reason, defer to the district court’s determination of the credibility of witnesses and the weight to be given to their testimony.  See State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) (emphasizing that it is exclusive function of fact-finder to weigh credibility).

Given the district court’s findings and the evidence supporting the findings, we conclude that the district court did not clearly err in determining that Waste failed to prove his affirmative defense by a preponderance of the evidence.  We therefore sustain the district court’s revocation of Waste’s driver’s license.