This opinion will be unpublished and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
Karen Knute, petitioner,
Commissioner of Public Safety,
Beltrami County District Court
File No. C8-05-1210
Richard L. Swanson,
Attorney General, James E. Haase, Assistant Attorney General, 1800
Considered and decided by Wright, Presiding Judge; Randall, Judge; and Halbrooks, Judge.
U N P U B L I S H E D O P I N I O N
On appeal from the district court’s decision to sustain the revocation of her driver’s license under the implied consent law, appellant argues that the request for a preliminary breath test was not objectively reasonable and violated the protection against unreasonable seizures. We affirm.
August 6, 2005, appellant Karen Knute was stopped after Bemidji Police Officer
Willie Beise observed her vehicle swerve and cross the fog line a few
times. Officer Beise smelled an odor of
alcohol and noticed that appellant’s eyes were bloodshot and watery. Appellant admitted to having a couple of
alcoholic beverages prior to driving that night. Officer Beise administered the horizontal
gaze nystagmus (HGN) test, which appellant failed. Officer Beise then administered the
preliminary breath test (PBT), which indicated an alcohol concentration in
excess of the legal limit. Appellant was
subsequently arrested for driving while intoxicated, and her driving privileges
were revoked pursuant to
Appellant challenged the revocation, and a hearing was held on the matter. At the hearing, Officer Beise testified that based on his ten years of experience in law enforcement, appellant exhibited sufficient indicia of intoxication to warrant the administration of the PBT. The district court sustained the revocation, concluding that Officer Beise observed sufficient signs of impairment to warrant the administration of field sobriety tests, including a PBT. This appeal followed.
D E C I S I O N
review, a district court’s determination on the issue of whether reasonable
basis existed to request a chemical test under the implied consent statute is a
mixed question of law and fact. Clow v. Comm’r of Pub. Safety, 362
N.W.2d 360, 362-63 (Minn. App. 1985), review denied (Minn. Apr. 26,
1985). When an appellate court reviews a
traffic stop based on given facts, the test is not whether the district court’s
decision is clearly erroneous, but whether, as a matter of law, the basis for
the stop was adequate. Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (
the facts are clarified, this court does not review probable cause determinations
de novo; instead, we determine if the police officer “had a substantial basis
for concluding that probable cause existed at the time of invoking the implied
consent law.” Groe v. Comm’r of Pub. Safety, 615 N.W.2d 837, 840 (Minn. App.
2000), review denied (
Minn. Stat. § 169A.41, subd. 1 (2004), provides that when
a police officer “has reason to believe from the manner in which a person is
driving, operating, or controlling, or acting upon departure from a motor
vehicle . . . that the driver may be [impaired] . . . the officer may require
the driver to provide a sample of the driver’s breath for a preliminary
screening test . . . .” The probable cause standard required for an
officer to make an arrest is not required to administer a breathalyzer
Appellant challenges the district court’s determinations by claiming that Officer Beise lacked the requisite reasonable basis for suspecting her of driving under the influence and for requesting a PBT. Specifically, appellant claims that Officer Beise was acting out of his preconceived subjective belief that she was driving while impaired and that his belief should thus be disregarded as having no legal significance. Appellant indicates that little or no weight should be given to Officer Beise’s testimony regarding the administration of the HGN test because the officer seemed unsure of its administration.
We understand appellant’s argument that articulable suspicion to stop (low threshold) does not automatically equal articulable suspicion that you are drunk or “impaired,” which is the higher threshold law enforcement needs to reach before offering a motorist a PBT. But here, the claimed swerving is some support for the right to offer a PBT. Swerving, unlike a burned out tail-light, can be grouped along with other factors to support indicia of impaired driving. The swerving, along with appellant’s bloodshot and watery eyes, the odor of alcohol and her admission to alcohol consumption, and the failed HGN test, provided enough for the officer to administer the PBT.
We acknowledge that the commissioner’s case is not overwhelming. But the commissioner made a safe landing, taking into account the deference granted a district court on witness credibility and weight.