This opinion will be unpublished and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-96-392

John J. Ellsworth, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed July 16, 1996
Affirmed
Kalitowski, Judge

Hennepin County District Court
File No. 473327

Marc S. Berris, Jerry Strauss, Strauss & Associates, Commerce at the Crossings, 250 Second Avenue South, Suite 228, Minneapolis, MN 55401-2169 (for Appellant)

Hubert H. Humphrey III, Attorney General, Steven H. Alpert, Joel A. Watne, Nancy Bode, Assistant Attorneys General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for Respondent)

Considered and decided by Kalitowski, Presiding Judge, Parker, Judge, and Randall, Judge.

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

KALITOWSKI, Judge

Appellant John Ellsworth challenges the district court's order sustaining the revocation of his driver's license. He argues the arresting officer lacked probable cause to believe appellant was in physical control of a motor vehicle while intoxicated. We affirm.

D E C I S I O N

A determination on the issue of whether probable cause existed to request an alcohol concentration test under the implied consent law is a mixed question of fact and law. Snyder v. Commissioner of Pub. Safety, 496 N.W.2d 858, 860 (Minn. App. 1993). Once the facts have been found, the trial court must apply the law to determine if probable cause existed. Id.

A police officer may invoke the implied consent law and request that a driver take a chemical test when the officer "has probable cause to believe the person was driving, operating, or in physical control of a motor vehicle" while under the influence. Minn. Stat. '169.123, subd. 2 (1994). "Great deference" should be given to an officer's judgment on the issue of whether probable cause existed to request an alcohol concentration test. Snyder, 496 N.W.2d at 860. The term "physical control" is more comprehensive than either "drive" or "operate" and it is given the broadest possible effect. State v. Starfield, 481 N.W.2d 834, 836 (Minn. 1992).

Probable cause is to be evaluated from the point of view of the particular situation confronting the officer. Stiles v. Commissioner of Pub. Safety, 369 N.W.2d 347, 350 (Minn. App. 1985). The officer must make a practical common sense decision "in light of all the circumstances." Id. Probable cause to believe a driver is in "physical control" is

a reasonable suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious [person] in believing the driver was in physical control.

State v. Moe, 498 N.W.2d 755, 758 (Minn. App. 1993) (quoting State v. Maletich, 384 N.W.2d 586, 587 (Minn. App. 1986)). It is the overall situation that is determinative of whether a person is in physical control of a motor vehicle. Starfield, 481 N.W.2d at 838; see Hunt v. Commissioner of Pub. Safety, 356 N.W.2d 801, 803 (Minn. App. 1984) (probable cause can arise from direct or circumstantial evidence, even where the officer did not personally observe the individual driving and the individual denies driving the car).

Here, all of the circumstantial evidence supports the arresting officer's determination that he had probable cause to believe appellant was in physical control of the car while intoxicated: (1) less than two minutes elapsed between the time the arresting officer received the radio dispatch describing a vehicle driving erratically and the time he first saw appellant near the vehicle; (2) the car hood was warm to the touch and appellant was the registered owner; (3) appellant was urinating in his yard, outside his home, at nine o'clock at night; (5) appellant was the only person in the area of the car; (6) appellant smelled of alcohol, had poor balance, and lied about drinking; and (7) there was no evidence of any other driver. We conclude that, on these facts, the district court did not err in determining the arresting officer had reasonable and probable cause to believe appellant was in physical control of a motor vehicle while under the influence of alcohol.

Affirmed.