This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. ß 480A.08, subd. 3 (2006).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A06-2032

Brian Charles Boeser, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

 

Filed December 4, 2007

Affirmed

Ross, Judge

 

Scott County District Court

File No. 70-CV-06-1565

 

Aaron J. Morrison, Peter B. Wold, P.A., Barristers Trust Building, 247 Third Avenue South, Minneapolis, MN 55415 (for appellant)

Lori Swanson, Attorney General, Jeffrey F. Lebowski, Assistant Attorney General, Joel A. Watne, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)

 

Considered and decided by Ross, Presiding Judge; Kalitowski, Judge; and Worke, Judge.

U N P U B L I S H E D†† O P I N I O N

Ross, Judge

This matter arose when police found Brian Boeser soaking in his own vomit and slumped over the wheel of his pickup truck parked between the only two bars on Main Street in Prior Lake at closing time.† This appeal requires us first to determine whether the evidence supports the finding that Brian Boeser violated his agreement not to consume alcohol, and, second, whether the sufficient-cause-to-believe standard used by the Commissioner of Public Safety to determine whether Boeser violated the abstinence restriction on his driverís license violates his right to due process.† Boeser argues further that the district courtís reliance on mere testimony when reviewing whether the sufficient-cause-to-believe standard has been met also violated his right to due process.† Because the district court did not err by finding that the commissioner had sufficient cause to believe that Boeser violated his total abstinence restriction, and because the sufficient-cause-to-believe standard does not violate the constitutional right to due process, we affirm.

FACTS

Brian Boeserís driverís license included a 15-year-old total-abstinence restriction at the time police encountered him in December 2005. †Prior Lake Police Sergeant Thomas Kahlert responded at two in the morning to a call of an intoxicated man leaving a bar and attempting to enter a pickup truck.† Sergeant Kahlert found Boeser slumped over the steering wheel of the truck.† The sergeant saw vomit on the steering wheel and on Boeserís clothing.† He smelled the strong odor of an alcoholic beverage.† When Boeser stepped from the pickup truck he could barely stand and continued to vomit.† Two officers were present with Sergeant Kahlert and witnessed Boeserís condition.† Police called Boeserís wife, who picked him up.† Kahlert recorded these facts in a police report and provided the report to the Commissioner of Public Safety because Boeserís driverís license had a no-alcohol restriction.

The Commissioner of Public Safety therefore cancelled Boeserís driverís license.† Boeser sought judicial review and asked the district court to rescind the cancellation decision, contending that the evidence was insufficient to establish that Boeser had violated the total abstinence restriction.† He also argued that the sufficient-cause-to-believe standard violates due process.

The district court heard testimony from various witnesses.SergeantKahlert and his two backup officers testified about their observations.† In addition to those behavioral observations, which Boeser does not dispute, one officer testified that he offered Boeser a preliminary breath test with a portable device and that Boeser refused.† Boeser does not recall being offered a preliminary breath test.† Boeser disputed the cause of his condition.† He admitted that he and his friend visited two bars throughout the evening and early morning hours before he encountered the officers.† Boeser and his friend testified that Boeser had not consumed any alcoholic beverage.† Boeser claimed that his impaired condition resulted from being overcome by paint fumes that he inhaled much earlier in the day.

The district court was unpersuaded by Boeserís testimony and concluded that the commissioner had sufficient cause to believe that he had consumed an alcoholic beverage.† The district court therefore sustained the commissionerís decision cancelling Boeserís driverís license.† It also concluded that the sufficient-cause-to-believe standard does not violate due process.† This appeal follows.

D E C I S I O N

I

We first consider Brian Boeserís indirect challenge to the district courtís finding that he consumed an alcoholic beverage.† Although the findings are not explicitly contested, the commissioner accurately construes Boeserís argument as contending that the district court misread the evidence and therefore mistakenly concluded that Boeser consumed alcohol.† We will not disturb the district courtís factual findings unless they are clearly erroneous.† Busch v. Commír of Pub. Safety, 614 N.W.2d 256, 258 (Minn. App. 2000).† A finding is clearly erroneous if the reviewing court is left with a definite and firm conviction that a mistake has been made.† Vangsness v. Vangsness, 607 N.W.2d 468, 472 (Minn. App. 2000).† This court gives due regard to the district courtís assessment of witness credibility.† Minn. R. Civ. P. 52.01.† The district courtís finding that Boeser drank alcohol is not clearly erroneous.

The officersí uncontested observations support the district courtís conclusion that Boeser consumed an alcoholic beverage.† Boeser admits that the officers found him slumped over the wheel of his pickup truck at two oíclock in the morning, parked just outside the two bars in which he had been socializing for the past six hours.† He admits that the officers smelled alcoholic beverages when they opened his door.† He admits that they noticed that he and the inside of his truck were covered with his vomit and that he vomited again as he stepped from the truck.† And he concedes that ď[i]t is a reasonable assumption that he was drinking.Ē† But he insists that ďthe same facts also support a conclusion [that he] was sick from the chemicals he was exposed to that day, or the flu, or food poisoning.Ē† And he postulates that it might also be that ďthe alcohol [that the officers] smelled was the result of [his] sitting at a table in a bar that was covered with spilled alcohol.Ē† He does not point to any evidence in the record to support these alternative possible findings or to explain the officersí testimony that Boeser had urinated on himself, staggered as he walked, and could barely speak.† Although the facts might support the paint-fumes theory, the flu theory, or the food-poisoning theory, they also support the less remarkable theory the district court settled on, which is that Boeser had ďconsumed an alcoholic beverage.Ē

Boeserís argument that his illness was caused by exposure to paint fumes was heard and rejected by the district court.† We defer to the district courtís credibility assessment and its weighing of evidence.† Boeserís counsel summarized the logic of the district courtís finding well: ďThere he was, Mr. Boeser, parked next [to] the VFW late at night, throwing up.† Not a good position for someone with an alcohol restricted driverís license.Ē† The district courtís finding that Boeser consumed an alcoholic beverage rests on uncontradicted testimony and is not clearly erroneous.† We next consider Boeserís constitutional challenge to the standard under which the finding was made.

II

Boeser asserts that the sufficient-cause-to-believe standard that the commissioner uses to decide whether to cancel a driverís license for violation of a total abstinence restriction offends a personís right to due process.The district courtís decision regarding the constitutionality of a statute is a question of law, which we review de novo.† Hamilton v. Commír of Pub. Safety, 600 N.W.2d 720, 722 (Minn. 1999).Boeser bears the burden of proving that the standard is unconstitutional beyond a reasonable doubt.† In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).† Boeser does not meet that burden.

The commissioner must cancel and deny the driverís license of any person on sufficient cause to believe that the person has consumed an alcoholic beverage after he agrees to total abstinence.† Minn. R. 7503.1700, subp. 6 (2005).† The United States and Minnesota Constitutions forbid a state to ďdeprive any person of life, liberty, or property, without due process of law.Ē U.S. Const. amend. XIV; Minn. Const. art. I, ß 7.† The state may not suspend a personís driverís license without constitutionally required due process.† Dixon v. Love, 431 U.S. 105, 112, 97 S. Ct. 1723, 1727 (1977).† Due process requires applying a trustworthy standard of proof, the minimally acceptable nature of which will depend on the nature of the deprivation.† A standard of proof, as that concept is embodied in the Due Process Clause, must ďinstruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions for a particular type of adjudication.Ē †In re Winship, 397 U.S. 358, 370, 90 S. Ct. 1068, 1076 (1970) (Harlan, J., concurring).† But especially where prompt postdeprivation review is available, the Due Process Clause does not require procedures that ďpreclude any possibility of error.Ē† Mackey v. Montrym, 443 U.S. 1, 13, 99 S. Ct. 2612, 2618 (1979).

Boeserís constitutional challenge to the standard the commissioner applied to cancel his driving privileges is not compelling.† Boeser does not contend that due process prohibits the state from basing the cancellation on his failure to abstain from alcohol.† Rather, he contends that the standard of proof by which the state may establish the fact that he consumed alcohol is too unreliably low to constitute due process, and he separately contends that the type of evidence permitted to prove the fact is not sufficiently trustworthy to satisfy the requirements of due process.[1]† This court has previously resolved both constitutional challenges.

In Lamusga v. Commissioner of Public Safety, we specifically considered whether the sufficient-cause-to-believe standard and the evidence allowable under the standard provide a reasonably reliable basis to test the fact of a personís postabstinence consumption.† 536 N.W.2d 644, 647-48 (Minn. App. 1995), review denied (Minn. Oct. 27, 1995).† We analyzed the issue by following the United States Supreme Courtís decision in Montrym, which held that a police officerís probable-cause determination that a driver is under the influence and the officerís representation that the driver refused a breath analysis can support a prehearing license suspension without violating due process.† 443 U.S. at 13-19, 99 S. Ct. at 2618-21.† We also applied the Minnesota Supreme Courtís decision in Heddan v. Dirkswager, which addressed a similar suspension scheme in which ďa driverís license is revoked in cases where a peace officer had probable cause to believe the person had been operating a motor vehicle while under the influence of alcohol and that person refused to submit to chemical testing.Ē †336 N.W.2d 54, 61 (Minn. 1983).† Following the three-factor analysis first established by Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, (1976), and mirroring the Montrym reasoning, the Heddan court held that this suspension scheme did not violate due process.† Id. at 61-63. †Based on that analysis, in Lamusga we held that the same prehearing procedure that Boeser now contests does not violate due process.† 563 N.W.2d at 648.† Lamusga controls our decision today, and we reject Boeserís constitutional challenge.

Boeser has not persuaded us to a different conclusion by emphasizing that the commissioner and the district court relied on the officerís report or testimony without supporting forensic evidence, such as the results of chemical testing for alcohol concentration.† We do not share Boeserís apprehension that the determination of whether a person has consumed alcohol will be decided based on the district courtís assessment of the credibility of a police officer against an unsworn civilian.† As a practical matter, even if, as Boeser asserts, this creates ď[a] credibility match any citizen is likely to loseĒ in some situations, in this case there was no factual dispute between officer and nonofficer; it is uncontested that the officers were called to the scene of a reported drunk man entering a pickup and that they arrived to find Boeser apparently intoxicated.† The only credibility question that Boeser introduced was whether his paint-fumes accounting for his impairment would prevail over the more plausible conclusion that he was intoxicated, as implied by all observations.† And this court has held constitutional the commissionerís reliance on police officer representations to establish a factual basis for cancellation.† Lamusga, 536 N.W.2d at 648; see also Gardner v. Commír of Pub. Safety, 423 N.W.2d 110, 113 (Minn. App. 1988) (recognizing that additional evidence disclosed at a hearing may be used to justify the revocation of a license, and the district court is not limited to the record presented to the commissioner).

Conceptually, we see no merit to the notion that due process requires more than witness testimony or police reports to sustain a fact.† Courts have long relied on witness testimony for deprivations far more severe than the loss of driving privileges.† Boeser proposes that either qualified blood-alcohol test results or evidence of refusal to submit to such a test be required to cancel and deny a driverís license.† He fails to explain why testing should be constitutionally required simply by virtue of the fact that testing is statutorily required in other settings.† The argument has no weight.

Affirmed.



[1]†† Boeserís brief also suggests a challenge to ď[t]he judicial review process.Ē† Boeser does not develop any argument or provide supporting citation, and we do not consider the issue.† See State Depít of Labor & Indus. v. Wintz Parcel Drivers, Inc., 558 N.W.2d 480, 480 (Minn. 1997) (declining to reach issues in the absence of adequate briefing).