This opinion will be unpublished and

may not be cited except as provided by

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





Arthur Alan Anderson, petitioner,


Commissioner of Public Safety,


Filed December 4, 2007

Affirmed; motion granted

Toussaint, Chief Judge


Redwood County District Court

File No. 64-CV-06-516



Charles A. Ramsay, Kevin W. DeVore, Sharon R. Osborn, Ramsay 7 DeVore, P.A., 1700 West Highway 36, Suite 450, Roseville, MN 55113 (for appellant)

 Lori Swanson, Attorney General, Sean R. McCarthy, Melissa J. Eberhart, Assistant Attorneys General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)



            Considered and decided by Toussaint, Chief Judge; Lansing, Judge; and Huspeni, Judge.*


U N P U B L I S H E D   O P I N I O N

TOUSSAINT, Chief Judge

Appellant Arthur Alan Anderson challenges a judgment sustaining the revocation of his driver's license, arguing that the arresting officer did not have a reasonable basis to ask him to submit to a preliminary breath test and that he was denied effective assistance of counsel.  Because the district court did not err in determining that the officer had a reasonable, articulable suspicion to request that appellant submit to a preliminary breath test, we affirm.  We also grant respondent Commissioner of Public Safety’s motion to strike. 


            On July 6, 2006, appellant was arrested for driving while impaired, in violation of Minn. Stat. § 169A.20, subd. 1(5) (2004), and for driving in violation of a restricted license, in violation of Minn. Stat. § 171.09, subd. 1(b)(1) (2004).  Appellant’s driver’s license was revoked under the implied-consent law, Minn. Stat. § 169A.52, subd. 4(a)(1) (2004).  Appellant petitioned for judicial review, and the district court sustained the revocation of his driver’s license. 

            The district court’s findings of fact will not be set aside unless clearly erroneous.  Thompson v. Comm’r of Pub. Safety, 567 N.W.2d 280, 281 (Minn. App. 1997), review denied (Minn. Sept. 25, 1997).  “Conclusions of law will be overturned only upon a determination that the trial court has erroneously construed and applied the law to the facts of the case.”  Dehn v. Comm’r of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986).



            Appellant alleges that the arresting officer, Deputy Jason Jacobson, did not have a reasonable basis to request that appellant submit to a preliminary breath test and instead based the request only on the fact that he had a B card license restriction prohibiting him from consuming any alcohol. 

            Here, the district court made factual findings that Jacobson had reasonable suspicion to administer the preliminary breath test because he thought appellant was attempting to cover up an odor of alcohol by smoking, he noticed beer cans in the back of the truck, appellant’s eyes were bloodshot, and appellant had a B card restriction on his license.[1]  The record indicates that the district court did not err in making these factual findings. 

Minn. Stat. § 169A.41, subd. 1 (2004) provides:

                        When a peace officer has reason to believe from the manner in which a person is driving . . . or acting upon departure from a motor vehicle. . . that the driver may be . . . driving while impaired . . . the officer may require the driver to provide a sample of the driver’s breath for a preliminary screening test using a device approved by the commissioner for this purpose.


The results of a preliminary breath test may be used to prove that a test was properly required under the implied-consent law, Minn. Stat. § 169A.51, subd. 1.  Minn. Stat. § 169A.41, subd. 2(1).

            The purpose of requiring a preliminary breath test is to assist officers in making a probable cause determination when they are unsure whether the driver is under the influence.  Marben v. State Dep’t of Pub. Safety, 294 N.W.2d 697, 700 (Minn. 1980).  An investigating “officer need not possess probable cause to believe that DWI violation has occurred in order to administer a preliminary breath test.”  State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986), review denied (Minn. May 16, 1986).  Rather, an officer may request a preliminary breath test if he or she can point to specific, articulable facts that form a basis to believe that a person is or has been driving a motor vehicle while under the influence of alcohol.  State v. Juncewski, 308 N.W.2d 316, 317 (Minn. 1981).  Articulable suspicion is an objective standard and is determined from the totality of the circumstances.  Paulson v. Comm’r of Pub. Safety, 384 N.W.2d 244, 246 (Minn. App. 1986).  Appellate courts “acknowledge that trained law enforcement officers are permitted to make inferences and deductions that would be beyond the competence of an untrained person.”  State v. Richardson, 622 N.W.2d 823, 825 (Minn. 2001). 

            Given the totality of the circumstances, the district court did not erroneously construe and apply the law to the facts of this case.  See Hager v. Comm’r of Pub. Safety, 382 N.W.2d 907, 911 (Minn. App. 1986) (holding that officer had reasonable suspicion to administer a preliminary breath test when driver’s eyes were bloodshot and watery and he smelled of alcohol); Swapinski v. Comm’r of Pub. Safety, 368 N.W.2d 322, 324 (Minn. App. 1985) (holding that officer had sufficient probable cause to believe that driver was intoxicated to request preliminary breath test when driver had a balance problem and he smelled of alcohol), review denied (Minn. July 26, 1985); Vievering, 383 N.W.2d at 730 (holding that officer had reasonable basis to administer preliminary breath test when driver smelled of alcohol and two open cans of beer were on the floor of the vehicle).  As the district court found, Jacobson clearly relied on more than just the fact that appellant had a B card restriction when he asked him to take a preliminary breath test.  Because of the observed indicia of intoxication, Jacobson had a reasonable articulable suspicion to request that appellant submit to a preliminary breath test. 



            Appellant argues that he was denied effective assistance of counsel when his counsel at the implied-consent hearing (1) did not challenge the procedure for administering the preliminary breath test, (2) did not seek to admit evidence of a prior brain trauma (which appellant alleges affected his performance on the field sobriety tests), and (3) did not hire an expert to testify regarding the effects of his alleged consumption of racing fuel on the Intoxilyzer results. 

            Appellant argues for the first time on appeal that he was denied effective assistance of counsel.  The district court did not consider this issue.  Only those issues that the record shows were presented to and considered by the district court can be reviewed by an appellate court.  Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).  We decline to address this issue.

            In any event, this appeal does not involve review of a criminal proceeding; it arises from the administrative revocation of appellant’s driving privileges, which is a civil matter.  See Goldsworthy v. State Dep’t of Public Safety, 268 N.W.2d 46, 49 (Minn. 1979).  No Sixth Amendment right to counsel attaches to implied-consent proceedings because they are civil in nature.  Maietta v. Comm’r of Pub. Safety, 663 N.W.2d 595, 600 (Minn. App. 2003), review denied (Minn. Aug. 19, 2003) (barring ineffective-assistance-of-counsel claims in implied-consent hearings). 



            Respondent moves to strike a document in the appendix to appellant’s brief that was not presented at the revocation hearing and is not part of the record on appeal.  The record on appeal is limited to the “papers filed in the [district] court, the exhibits, and the transcript of the proceedings.”  Minn. R. Civ. App. P. 110.01.  The appellate court must strike documents included in a brief that are not part of the appellate record.  Fabio v. Bellomo, 489 N.W.2d 241, 246 (Minn. App. 1992), aff’d, 504 N.W.2d 758 (Minn. 1993).  This court may also strike or disregard the portions of a brief that refer to or rely on the non-record documents.  See AFSCME Council No. 14 v. Scott County, 530 N.W.2d 218, 222-23 (Minn. App. 1995), review denied (Minn. May 16 & June 14, 1995).

            Appellant has attached to his brief an undated document entitled “DWI Detection and Standardized Field Sobriety Testing,” from the United States Department of Transportation.  Respondent did not have the opportunity to challenge the foundation of the document, cross-examine witnesses regarding the document, or refute the application of the document to this case.  Respondent’s motion to strike this document and all references to it is granted. 

Affirmed; motion granted. 

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

[1]The record also establishes that Jacobson smelled an odor of alcohol emanating from appellant when he was no longer smoking, although it is not clear whether the officer smelled this odor before or after administering the preliminary breath test.