This opinion will be unpublished and

may not be cited except as provided by

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







State of Minnesota,





Mark John Olson,




Filed June 7, 2005

Reversed and remanded
Klaphake, Judge


Hennepin County District Court

File No. 04049898


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


Rolf A. Sponheim, Assistant City Attorney, City of Minnetonka, 14600 Minnetonka Boulevard, Minnetonka, MN  55435 (for appellant)


Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas, P.A., 320 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, MN  55121 (for respondent)


            Considered and decided by Klaphake, Presiding Judge, Shumaker, Judge, and Poritsky, Judge.*

U N P U B L I S H E D   O P I N I O N


            Respondent Mark John Olson was charged with driving while impaired by alcohol and driving with a blood alcohol concentration of greater than 0.10 in violation of Minn. Stat. §§ 169A.20, subd. 1(1), (5), subd. 3, .27 (2002).  After a hearing, the district court suppressed evidence of a preliminary breath test (PBT) and dismissed the charges against respondent.  The State of Minnesota appeals from this pretrial order.

            Because even without the PBT, there was sufficient evidence to give police probable cause to arrest respondent, we reverse and remand for trial.


            In order to appeal from a district court’s pretrial order, the state must show that the district court has clearly erred in its order and that the error, unless reversed, will have a critical impact on the state’s ability to successfully prosecute the defendant.  State v. Horner, 617 N.W.2d 789, 792 (Minn. 2000).  The critical impact portion of this standard is met when, as here, suppression of evidence results in dismissal of charges.  State v. Hawkins, 622 N.W.2d 576, 579 (Minn. App. 2001).

            A peace officer may lawfully arrest a person for a violation of Minn. Stat. § 169A.20 (2004) (driving while impaired) upon probable cause.  Minn. Stat. § 169A.40, subd. 1 (2004).  Probable cause to arrest requires something more than mere suspicion and something less than the evidence necessary for a conviction.  See State v. Camp, 590 N.W.2d 115, 119 n.9 (Minn. 1999).  Probable cause exists when there are sufficient facts “such that under the circumstances a person of ordinary care and prudence [would] entertain an honest and strong suspicion that a crime has been committed.”  State v. Johnson, 314 N.W.2d 229, 230 (Minn. 1982) (quotation omitted). 

            In the specific area of DWI law, probable cause to arrest may be based on objective indications such as slurred speech, an odor of alcohol, bloodshot or watery eyes, and an uncooperative attitude.  State v. Kier, 678 N.W.2d 672, 678 (Minn. App. 2004).  Other observations that may support probable cause have included speeding and a one-car accident occurring at bar-closing time, State v. Schauer, 501 N.W.2d 673, 675 (Minn. App. 1993), or an admission by a driver that he or she had been drinking.  Groe v. Comm’r of Pub. Safety, 615 N.W.2d 837, 841 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000).   Even in the absence of a PBT, probable cause can be found when an admission of drinking is coupled with other signs of intoxication.  State v. Laducer, 676 N.W.2d  693, 698 (Minn. App. 2004).  PBT results are useful, they are not mandatory.  See Minn. Stat. § 169A.41, subd. 1 (2004) (stating officer “may” require PBT under certain circumstances).

            The officer here observed the following facts before arresting respondent:   (1) speeding; (2) swerving from fog line to centerline; (3) the smell of alcohol; (4) observations made at 1:15 a.m., 15 minutes after bar-closing time; (5) slurred speech; (6) watery, bloodshot, glassy eyes; (7) an admission of drinking; and (8) an admission of having taken a prescribed narcotic (Vicodin) while drinking.  These observations are more than sufficient to establish probable cause. 

            The district court here emphasized that all of these observed behaviors could be explained by innocent causes.  But “[t]he fact that there might have been an innocent explanation for [defendant’s] conduct does not demonstrate that the officers could not reasonably believe that [the defendant] had committed a crime.”  Hawkins, 622 N.W.2d at 580 (quotation omitted).  The issue of whether there is “some hypothesis of innocence” is relevant to the beyond a reasonable doubt standard, not probable cause.  Id. 

            Because we conclude that the district court clearly erred in dismissing the charges against respondent, we reverse and remand this matter for trial.

            Reversed and remanded.

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