This opinion will be unpublished and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
C1-96-460

Patrick Michael Murphy, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed August 6, 1996
Affirmed
Harten, Judge

Isanti County District Court
File No. C7-95-1208

Jeffrey S. Sheridan, Strandemo & Sheridan, P.A., 2125 Upper 55th Street East, Inver Grove Heights, MN 55077 (for Appellant)

Hubert H. Humphrey, III, Attorney General, 14th Floor NCL Tower, 445 Minnesota St., St.Paul, MN 55101 (for Respondent)

Joel A. Watne, Assistant Attorney General, Capitol Office Bldg., Ste. 200, 525 Park St., St. Paul, MN 55103 (for Respondent)

Considered and decided by Willis, Presiding Judge, Davies, Judge, and Harten, Judge.

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

HARTEN, Judge

Appellant's driver's license was revoked after he was arrested for driving while intoxicated, and the district court sustained the revocation. Appellant now challenges the district court's denial of his motion for directed verdict, arguing that the Commissioner failed to establish probable cause to believe that appellant drove while intoxicated. We affirm.

FACTS

On November 4, 1995, appellant Patrick Murphy was arrested for driving while intoxicated, and his driver's license was revoked. Murphy demanded a hearing to challenge the revocation. At the subsequent implied consent hearing, Murphy stipulated that his chemical test was reliable and yielded an alcohol concentration above 0.10 and that only the issue of probable cause was before the court.

In support of the revocation, the Commissioner presented only the testimony of Deputy Sheriff James Johnson. Johnson testified that after 3:00 a.m. on the morning of November 4 he received a dispatch about two people walking on the highway near a church; shortly thereafter, Johnson found Murphy and another man cleaning and warming themselves in the shower at a nearby house. Murphy told Johnson that his truck had become stuck, that the two men had then fallen into a swamp, and that they had come to the house to try to warm themselves. Johnson smelled the odor of an alcoholic beverage in the bathroom and later when Murphy was with him in the squad car. He also noticed that Murphy's eyes were red and watery. Johnson testified that Murphy was confused, did not know where his truck was located, and did not know how the men had walked to the house. Johnson and Murphy eventually found Murphy's truck about four miles from the house. Johnson then arrested Murphy for driving while intoxicated. Johnson conceded that he did not know when the truck had become stuck. Johnson also testified that Murphy did not state at the time of arrest that he had consumed alcohol after the truck became stuck, although Johnson did not ask about any post-accident drinking.

The Commissioner rested its case after Johnson's testimony. Murphy moved for a "directed verdict" at that point, arguing that Johnson's testimony had not established probable cause to believe that Murphy had been driving while intoxicated. The district court denied the motion.

In his case presentation, Murphy testified that his truck became stuck between 12 and 12:30 a.m. and that he and the other man had then split twelve cans of beer while sitting on the bed of the truck and attempting to reach a friend by cellular phone. The men eventually set out on foot for the road, but fell through ice into a swamp. They then walked down the highway until they came upon the house where Johnson found them. On rebuttal, Johnson testified that Murphy had told him that the men had been at a bar until closing time and that he had had too much to drink and should not have been driving when the truck became stuck. The district court sustained the revocation of Murphy's license, and this appeal resulted.

D E C I S I O N

Murphy appeals from the district court's denial of his motion for a "directed verdict." Murphy argues that the Commissioner's evidence was insufficient as a matter of law to establish probable cause. We recently treated such a motion as a motion for involuntary dismissal under Minn. R. Civ. P. 41.02(b). See Kranz v. Commissioner of Pub. Safety, 539 N.W.2d 420, 421-22 (Minn. App. 1995). Because a motion under that rule is analogous to a motion for directed verdict, we apply a similar standard of review. A directed verdict is appropriate only when the court would have a duty to set aside an opposite result as manifestly contrary to the evidence or the law. Claflin v. Commercial State Bank, 487 N.W.2d 242, 247 (Minn. App. 1992), review denied (Minn. Aug. 4, 1992). In reviewing such a motion, we must view the evidence and all reasonable inferences in the light most favorable to the adverse party. Id.

A chemical test may be required of a person when an officer has probable cause to believe that the person was driving under the influence of alcohol. Minn. Stat. ' 169.123, subd. 2(a) (1994). Generally, the issue of probable cause presents a mixed question of fact and law. Hasbrook v. Commissioner of Pub. Safety, 374 N.W.2d 592, 594 (Minn. App. 1985). Here, however, the facts established during the Commissioner's case-in-chief must be accepted as true; whether those facts establish probable cause thus becomes a question of law.

Probable cause exists where all the facts and circumstances would warrant a cautious person to believe that the [individual drove while under the influence of alcohol]. It must be viewed from the point of view of a prudent and cautious police officer on the scene. Trained law enforcement officers may make inferences and deductions that might elude an untrained person. The court must examine the totality of the circumstances to determine whether probable cause exists.

Vangstad v. Commissioner of Pub. Safety, 404 N.W.2d 15, 16 (Minn. App. 1987) (citations omitted).

In arguing that the Commissioner failed to establish probable cause, Murphy relies on Dietrich v. Commissioner of Pub. Safety, 363 N.W.2d 801 (Minn. App. 1985), in which this court upheld the rescission of a license revocation. There we held that the Commissioner failed to establish probable cause to believe that the petitioner drove while intoxicated because the necessary "temporal connection" between the driving and the intoxication had not been established. Id. at 803. Murphy urges a similar result here, noting that Deputy Johnson did not know when Murphy's truck had become stuck.

In numerous cases decided within the year following Dietrich, however, we distinguished that case in reaching an opposite result. In those cases, we made clear that Dietrich did not establish any requirement that the officer testify specifically to the time of the accident or driving. See, e.g., Graham v. Commissioner of Pub. Safety, 374 N.W.2d 809, 811 (Minn. App. 1985).

For instance, in DeLong v. Commissioner of Pub. Safety, 386 N.W.2d 296 (Minn. App. 1986), review denied (Minn. June 13, 1986), we held that the unbroken sequence of events related to the officer by the driver established the necessary temporal connection. Id. at 298. The driver told the officer that he became stuck in a ditch, received a ride to a truck stop, called for a tow truck, and then received a ride back to the accident scene, where he showed signs of intoxication. Id. at 298-99. We distinguished Dietrich as a case in which "no time frame whatsoever was established." Id. at 299.

The supreme court addressed this issue in Eggersgluss v. Commissioner of Pub. Safety, 393 N.W.2d 183 (Minn. 1986). In that case, the officer discovered a one-car rollover at approximately 7:00 a.m. Id. at 184. A few minutes later, the driver and a passenger arrived. Id. The driver told the officer that the accident had occurred about three hours earlier. Id. The passenger told the officer that the two men had been drinking at a reception; the driver denied that he had been drinking, even though he showed clear signs of intoxication. Id. at 184-85. The supreme court concluded from the totality of the circumstances that the officer had probable cause to believe that the driver was under the influence of alcohol at the time of the accident. Id. at 185. The supreme court held that the facts established probable cause to believe that the driver drove while intoxicated. The supreme court stated:

The majority [court of appeals] opinion puts too much importance on the commissioner's inability to prove a negative, specifically, that [the driver] did not drink after the accident. Even if the officer had specifically asked this, [the driver] could have lied just as he apparently did when asked generally if he had been drinking. In any event, by asking [the driver] and the passenger generally if they had been drinking, the officer gave them an opportunity to give him their version of what happened. Presumably, if the drinking had occurred after the accident, they would have said so since that fact obviously would have helped [the driver]. They did not say so.

Id.

In the instant case, we conclude that Deputy Johnson's testimony established the necessary temporal connection. Here, as in DeLong, the officer testified to a sequence of events that established a general time frame. Murphy told Johnson that he became stuck, attempted to walk out to the road, fell into a swamp, walked down the highway to a house, asked for assistance, and began to clean and warm himself; this unbroken chain of events reasonably suggested to Johnson a scenario devoid of post-accident consumption. Murphy did not tell Johnson that he had been drinking after he became stuck. There was no evidence indicating that Murphy had consumed any alcohol after the accident. See Hedstrom v. Commissioner of Pub. Safety, 410 N.W.2d 47, 49 (Minn. App. 1987) (probable cause found where there was no evidence prompting the officer to suspect that the driver drank after the accident); Dutcher v. Commissioner of Pub. Safety, 406 N.W.2d 333, 335 (Minn. App. 1987) (probable cause found where no testimony indicated that the driver told the trooper that she drank after the accident). Moreover, Johnson's failure to ask about post-accident drinking does not compel a different result. See Rohlik v. Commissioner of Pub. Safety, 400 N.W.2d 791, 794 (Minn. App. 1987) (officer's failure to ask about post-accident drinking immaterial), review denied (Minn. Apr. 17, 1987). Finally, the fact that Murphy was confused about the location of the truck and how he came to the house suggested that he was already intoxicated before arriving at the house, the most likely place to expect any post-accident drinking.

We hold that the Commissioner put forth sufficient evidence in his case-in-chief to establish probable cause that Murphy drove while under the influence of alcohol. Accordingly, we affirm the district court's denial of Murphy's motion for directed verdict and its order sustaining the revocation of Murphy's license.

Affirmed.