This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1994).

STATE OF MINNESOTA

IN COURT OF APPEALS

CX-95-1984

Jay Leslie Howie, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed May 21, 1996

Affirmed

Willis, Judge

Hennepin County District Court

File No. 473004

Lawrence E. Maus, Lee A. Bjorndal, Baudler, Baudler, Maus & Blahnik, 110 North Main Street, Austin, MN 55912 (for Appellant)

Hubert H. Humphrey, III, Attorney General, Joel A. Watne, Assistant Attorney General, 500 Capitol Office Building, 525 Park Street, St. Paul, MN 55103 (for Respondent)

Considered and decided by Amundson, Presiding Judge, Crippen, Judge, and Willis, Judge.

U N P U B L I S H E D O P I N I O N

WILLIS, Judge

On appeal from an order sustaining a license revocation, driver argues that (1) the arresting officer made an improper seizure, (2) an Intoxalock device prevented him from being "in physical control" of his car, and (3) the arresting officer lacked probable cause to believe he was intoxicated. We affirm.

FACTS

Appellant Jay Howie drove from Mason City, Iowa, to Cambridge, Minnesota, on May 2, 1995, for business purposes. On the return trip, he learned that Led Zeppelin's former lead singers were performing in Minneapolis that evening. In order to attend the concert, he drove to Minneapolis, parked his car in the Radisson Hotel parking ramp, and walked to the Target Center. Howie secured a ticket, but was unable to find a hotel room for the evening. When the concert ended about midnight, he decided to sleep in his car for a few hours before driving back to Iowa.

Howie's car was equipped with an Intoxalock unit, a device designed to prevent anyone with a breath alcohol content above .025 percent from starting the car. Howie admitted drinking four large cups of beer at the concert and testified he knew that amount of alcohol was sufficient for the Intoxalock to prevent him from starting his car.

About 3:00 a.m. on May 3, 1995, Minneapolis police officer Cheryl Cassa responded to a call from Radisson ramp security regarding a "slumper." Officer Cassa approached Howie's car to check on his condition and to see if he needed assistance. She testified that the side window by the driver was open, the driver's seat was fully reclined, a key was in the ignition, and Howie appeared to be sleeping. After nudging him awake, she noted that Howie's "eyes were watery" and that he "seemed very disoriented."

Officer Cassa asked Howie to step out of the car due to "his confused state." Once out of the car, Officer Cassa detected the odor of alcohol. Officer Cassa did not ask Howie to perform any field sobriety tests because he was "so incoherent as to where he was and * * * so unsteady on his feet" that she "didn't feel it was safe for him." She placed Howie under arrest and transported him to the station. Howie consented to a breath test, which revealed an alcohol concentration above .10 percent. [1]

The district court affirmed the revocation of Howie's driving privileges, finding that (1) Officer Cassa had a reasonable, articulable suspicion of wrongdoing and therefore had lawfully detained Howie for investigatory purposes, (2) Howie was in physical control of his car, notwithstanding the presence of the Intoxalock, and (3) Officer Cassa had probable cause to arrest Howie for driving while intoxicated, based solely on the fact that she smelled alcohol.

D E C I S I O N

Where the facts are undisputed, an appellate court determines, as a matter of law, whether a seizure occurred and whether an officer had an adequate basis for the seizure. State v. Storvick, 428 N.W.2d 55, 58 n.1 (Minn. 1988).

1.  Seizure: State and federal constitutional provisions protect individuals from unreasonable searches and seizures. See U.S. Const. amend. IV; Minn. Const. art. I, § 10. A seizure occurs "`when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.'" In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993) (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S. Ct. 1868, 1879 n.16 (1968)).

Not all interactions between law enforcement officials and citizens constitute seizures. E.D.J., 502 N.W.2d at 781 (citing Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 1879 n. 16 (1968)). For example, a seizure does not occur when a police officer approaches a person in public to talk to him or her. State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980). Likewise, an officer may approach a vehicle to determine whether the occupants need assistance, even when there is no indication of criminal activity. Paulson v. Commissioner of Pub. Safety, 384 N.W.2d 244, 245 (Minn. App. 1986).

By itself, Officer Cassa's approach of Howie's car was not a seizure. When Officer Cassa told Howie to exit his car and requested identification, however, she converted the encounter into a Fourth Amendment seizure. See LaBeau v. Commissioner of Pub. Safety, 412 N.W.2d 777, 779 (Minn. App. 1987) (holding that a seizure occurred when an officer requested identification and asked the driver to step out of the vehicle).

A temporary seizure for investigatory purposes is justified only if the police officer has "a `particularized and objective basis for suspecting the particular persons stopped of criminal activity.'" State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)); see also State v. Johnson, 444 N.W.2d 824, 825-26 (Minn. 1989) (holding that suspicion must be based on more than a "hunch"). The officer is entitled to draw inferences and deductions that might elude an untrained person. Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985). Because an investigatory seizure is less intrusive than an arrest, the objective, reasonable basis standard supporting an articulable suspicion is less than that of probable cause to arrest. Terry v. Ohio, 392 U.S. 1, 27, 88 S. Ct. 1868, 1883 (1968).

Officer Cassa testified that she asked Howie to step out of his car because of "his confused state" and "his watery eyes." Considering also the location and time of day, we conclude that on these facts there was a reasonable basis for Officer Cassa's suspicion of wrongdoing, and therefore her seizure of Howie was justified. See Ascher v. Commissioner of Pub. Safety, 519 N.W.2d 183, 187 (Minn. 1994) (holding that seizure is justified where officer articulates objective, individualized suspicion of criminal wrongdoing).

2.  Physical Control: Minnesota's implied consent law applies to "any person who drives, operates, or is in physical control of a motor vehicle." Minn. Stat. § 169.123, subd. 2(a) (1994). The Minnesota Legislature intended physical control to be applied to the broadest possible range of conduct. State, Dep't of Pub. Safety v. Juncewski, 308 N.W.2d 316, 319 (Minn. 1981). We must interpret the implied consent law in favor of the public and against a private interest. Bale v. Commissioner of Pub. Safety, 385 N.W.2d 870, 872 (Minn. App. 1986).

Actual operation or intent to operate a vehicle has no bearing on whether an individual is in physical control of the vehicle. See, e.g., LaBeau, 412 N.W.2d at 780 (stating that person found in driver's seat of parked vehicle with keys in glove compartment was in physical control of the vehicle); Palme v. Commissioner of Pub. Safety, 366 N.W.2d 343 (Minn. App. 1985) (holding that individual found asleep in car, with keys on front seat was in physical control, notwithstanding claim of no intent to drive), review denied (Minn. June 24, 1985). But see State v. Pazderski, 352 N.W.2d 85, 88-89 (Minn. App. 1984) (holding that individual asleep in car in own driveway was not in physical control, but had used car as a "tent" or "summer screenhouse").

Here we must determine whether the installation of an Intoxalock device precludes a finding that Howie was in physical control of his vehicle. While Howie argues that the Intoxalock would have prevented him from starting his car, testimony established that the device is not foolproof. For example, the expert witness from the manufacturer admitted there are several ways to bypass an Intoxalock system, allowing an intoxicated person to start a vehicle fitted with the device. The only immediate consequence of bypassing the system is the recording of an "unauthorized start" on the Intoxalock data log.

Drivers who are in a position to operate their vehicles without much difficulty are considered to be in physical control in the context of Minnesota's implied consent statute. See, e.g., Sens v. Commissioner of Pub. Safety, 399 N.W.2d 602, 604 (Minn. App. 1987) (holding that sleeping driver was in physical control of vehicle, despite missing ignition key, where vehicle was mechanically operable); Butterfield v. Commissioner of Pub. Safety, 393 N.W.2d 515, 518 (Minn. App. 1986) (holding that driver who could have "set out on an inebriated journey at any moment" was in physical control, notwithstanding driver's claim of missing keys). But cf. Roberts v. Commissioner of Pub. Safety, 371 N.W.2d 605, 607-08 (Minn. App. 1985) (holding that intoxicated person is not in physical control of car that is incapable of being operated), review denied (Minn. Oct. 11, 1985).

Because the record establishes that the Intoxalock could be bypassed, we must conclude that Howie could have operated his vehicle. The district court thereby properly determined that Howie was in physical control of his vehicle.

3.  Probable Cause to Arrest:  The determination of probable cause is a question of law and fact. Clow v. Commissioner of Pub. Safety, 362 N.W.2d 360, 363 (Minn. App. 1985), review denied (Minn. Apr. 26, 1985). Once the facts are established, probable cause is a legal determination. Id.

An officer has probable cause to arrest a person for DWI when all the facts and circumstances warrant a "cautious person to believe that the suspect was driving or operating a vehicle while under the influence." Johnson v. Commissioner of Pub. Safety, 366 N.W.2d 347, 350 (Minn. App. 1985). Probable cause is evaluated from the perspective of a "prudent and cautious officer on the scene at the time of the arrest." State v. Olson, 342 N.W.2d 638, 640 (Minn. App. 1984). In reviewing an officer's actions, the district court

should "consider the totality of the circumstances and should remember that trained law-enforcement officers are permitted to make inferences and deductions that might well elude an untrained person."

Johnson, 366 N.W.2d at 350 (quoting State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983)).

Officer Cassa testified that Howie was very unsteady and that she detected the odor of alcohol when Howie stepped out of the car. Under the implied consent law, "even a single objective indication of intoxication may constitute sufficient probable cause" to arrest for DWI. Stiles v. Commissioner of Pub. Safety, 369 N.W.2d 347, 351 (Minn. App. 1985). The record amply supports the conclusion that Officer Cassa had probable cause to arrest Howie for DWI.

Affirmed.


Footnotes

[1]The district court rejected Howie's claim that he asked for but was denied an opportunity to obtain an independent blood test. Although Howie identifies this issue in his statement of the case, he has not briefed it on appeal. Whether Howie was denied an opportunity to obtain an independent test is not properly before this court. See Balder v. Haley, 399 N.W.2d 77, 80 (Minn. 1987) (holding that issues not argued in appellate briefs will be deemed waived on appeal).