This opinion will be unpublished and

may not be cited except as provided by

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






Keith Lyman Mielke, petitioner,


Commissioner of Public Safety,


Filed January 3, 2006


Toussaint, Chief Judge


Wabasha County District Court

File No. C0-04-442



Patrick J. Costello, P.O. Box 26, Red Wing, MN  55006 (for appellant)


Mike Hatch, Attorney General, Kyle R. Gustafson, Assistant Attorney General, 1800 Bremer Building, 445 Minnesota Street, St. Paul, MN  55101-2134 (for respondent Commissioner of Public Safety)



            Considered and decided by Randall, Presiding Judge; Toussaint, Chief Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

In this appeal from an order sustaining the revocation of appellant Kevin Lyman Mielke’s driver’s license under the implied-consent law, appellant argues that he was not operating or in physical control of a motorboat as defined by the implied-consent law and Minn. Stat. § 86B.331, subd. 1(c), (g) (2002).  Because the district court’s finding that appellant must have used the motor to propel the boat to its dock slip was based on the court’s assessment of witness credibility and is not clearly erroneous, we affirm.

D E C I S I O N[1]

            A district court’s findings of fact will not be reversed unless clearly erroneous.  Jasper v. Comm’r of Pub. Safety, 642 N.W.2d 435, 440 (Minn. 2002).  “A reviewing court will not disturb the [district] court’s findings of fact on appeal, even though it might not agree with them, unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.”  Dufrane v. Comm’r of Pub. Safety, 353 N.W.2d 705, 707 (Minn. App. 1984).

Minn. Stat. § 169A.52, subd. 4 (2002), provides for the revocation of a driver’s license if the person was “driving, operating, or in physical control of a motor vehicle” with an alcohol concentration of .10 or more.  The term “motor vehicle” includes “motorboats in operation.”  Minn. Stat. § 169A.03, subd. 15 (2002); see also Minn. Stat. § 86B.331, subd. 1(c) (2002) (stating that “person who operates or is in physical control of a motorboat . . . is subject to chapter 169A”).  The implied-consent law defines a “motorboat in operation” to exclude “a motorboat that is anchored, beached, or securely fastened to a dock or other permanent mooring or a motorboat that is being rowed or propelled by other than mechanical means.”  Minn. Stat. § 169A.03, subd. 14 (2002); see also Minn. Stat. § 86B.331, subd. 1(g) (defining motorboat in operation in same manner).

In an implied-consent proceeding, when the alleged operator raises the issue of whether he was actually operating or in physical control, the commissioner must prove by a fair preponderance of the evidence that he was operating or in physical control.  Llona v. Comm’r of Pub. Safety, 389 N.W.2d 210, 212 (Minn. App. 1986).  A finding of operation or physical control can be based on circumstantial evidence.  See Hunt v. Comm’r of Pub. Safety, 356 N.W.2d 801, 803 (Minn. App. 1984) (affirming finding based on strong circumstantial evidence that appellant was driver of vehicle).

Appellant argues that the evidence is insufficient to support the district court’s finding that he was in physical control of his boat.  The district court’s finding of physical control is based on a finding that appellant was operating his boat when he maneuvered it back to its slip.  Thus, the relevant question is whether the evidence is sufficient to show that the engine was running when appellant maneuvered the boat back to its slip.

            Lake City police officers were dispatched to investigate a report that a sailboat named “Milky Way” had struck a number of other boats while attempting to return to its slip.  When the officers arrived, the 35-foot sailboat with an inboard motor was tied up at its slip at dock 700.  Appellant admitted that he owned the boat and that he had left the slip but claimed that he was using the sail for power.  The sail was not up when the officers arrived.

At the hearing, appellant admitted that his boat left the slip but claimed that it was just drifting.  Appellant testified that his friend, Allen Dittrich, was also on the boat.  Dittrich admitted being on the boat but was not present when the officers arrived.  Both appellant and Dittrich testified that the current took the boat backwards toward dock 800 and that, by Dittrich using a boat hook and appellant attempting to steer, appellant was able to maneuver the boat back to its slip at dock 700.  Both appellant and Dittrich testified that the motor was not running, and appellant testified that he did not even have the keys to start the motor on the boat.

The district court expressed skepticism that appellant was able to steer the boat back to its slip without any means of propulsion other than the current, noting that a boat must be propelled by some means that makes it move faster than the current for “attempts to steer the vehicle to have any efficacy.”  The district court found:

For reasons stated at the hearing, the court is skeptical of [appellant’s] claim that the inboard motor on his boat was not running at the time of the incident.  In the absence of some means of propulsion, there would have been no way to steer the boat and the evidence is clear that the sails were not deployed at the time.  The Court is persuaded . . . that [appellant] was, under the totality of the circumstances, in actual physical control of his boat and on the night of his arrest.  [Appellant] was taking his boat out of its slip and out into the outer harbor; the boat’s sails were not deployed; the boat was not being rowed; and [appellant] testified that it was his intent to move the boat first out from the slip and later back into the slip.


While the district court could have credited appellant’s and Dittrich’s testimony that using the boat hook provided sufficient propulsion to maneuver the boat back to its slip, it was not required to do so.  The district court is not required to credit the evidence supporting the driver’s version of events even when that evidence is uncontradicted.  See Engebretson v. Comm’r of Pub. Safety, 395 N.W.2d 98, 99-100 (Minn. App. 1986) (upholding finding based on circumstantial evidence that appellant was driver of vehicle despite uncontradicted evidence to contrary).  This court must give due regard to the district court’s assessment of witness credibility.  Dufrane, 353 N.W.2d at 707(citing Minn. R. Civ. P. 52.01); see also Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996) (explaining that great deference is accorded “a [district] court’s findings of fact because it has the advantage of hearing the testimony, assessing relative credibility of witnesses and acquiring a thorough understanding of the circumstances unique to the matter before it”).

Here, there was evidence undercutting the credibility of appellant’s version of events.  Specifically, appellant initially told the officers that he was using the sail.  But the boat’s sail was not up when the officers arrived, and at the hearing, appellant did not testify that he was using the sail but instead testified that he attempted to steer the boat as it drifted in the current.  Also, the officers received a report that the Milky Way had struck several other boats, but appellant denied hitting any other boats.  The district court did not clearly err in finding appellant’s and Dittrich’s testimony incredible.

Based on other evidence in the record, it is a reasonable inference that some means of propulsion beyond attempting to steer the boat was necessary to maneuver the boat back to its slip.  There is no evidence that oars or paddles were being used, and there is evidence that the sail was not being used, leaving only the engine to provide propulsion.  The district court’s finding that appellant was operating the boat is supported by circumstantial evidence and, therefore, not clearly erroneous.


[1] Appellant’s notice of appeal referred to the order sustaining the revocation and to the pretrial denial of his motion to dismiss the pending criminal charge.  It is undisputed that the commissioner participated in the district court’s combined omnibus and implied consent revocation hearing, as well as in this appeal.  But the pretrial criminal order is not appealable until the defendant has been finally convicted and sentenced.  Minn. R. Crim. P. 28.02, subd. 2(2).  Accordingly, we have limited our review to the implied-consent ruling.  But see State v. Victorsen, 627 N.W.2d 655, 664 (Minn. App. 2001) (holding that when proper notice and opportunity to be heard is given, state is collaterally estopped from relitigating, in a criminal DWI proceeding, issues that have been decided in a related implied-consent proceeding).