This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat.  480A.08, subd. 3 (1994).


Robert Alan Kalass, petitioner,


Commissioner of Public Safety,

Filed August 13, 1996
Davies, Judge

Goodhue County District Court
File No. CX-95-1361

Douglas W. Thomson, Lisa D. Lodin, Douglas W. Thomson, 
Ltd., 332 Minnesota St., Suite W-1260, St. Paul, MN 55101 
(for Appellant)

Hubert H. Humphrey III, Attorney General, Peter R. Marker, 
Assistant Attorney General, 525 Park St., Suite 200, 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

	Appellant argues that his driver's license revocation 
should be rescinded because the investigating officers did not 
have sufficient reason to seize him and did not have probable 
cause to believe that he was intoxicated at the time he was 
driving his vehicle.  We affirm.


	A deputy sheriff, seeing a horse dangerously close to a 
highway, stopped and turned on his squad car's red lights to 
slow approaching vehicles.  Several vehicles slowed and pulled 
off to the right, but appellant Robert Kalass did not do so and 
he arrived just as the horse darted onto the road.  Although 
appellant braked, he hit the horse, which then ran off.  
Appellant immediately drove away.
	Within 30 minutes, officers investigating the incident 
found in front of a restaurant in a nearby town a damaged 
vehicle matching the description of the one involved in the 
collision.  A license check revealed that the vehicle was 
registered to appellant, so a deputy went inside and asked for 
appellant by name.  Appellant presented himself and admitted 
driving the vehicle that struck the horse.  He showed signs of 
intoxication and acknowledged having one to two drinks earlier. 
 He claimed also to have had three to four drinks at the 
restaurant after hitting the horse.
	Appellant's driver's license was revoked pursuant to the 
implied consent law for an alcohol concentration over .10.   He 
petitioned for judicial review; the trial court sustained the 
revocation.  Appellant now challenges the initial seizure and 
also argues that the officers did not have probable cause to 
believe he was intoxicated at the time he was driving his 



	It is undisputed that the officers "seized" appellant at the 
restaurant.  The issue is whether they had sufficient cause to do 
so.  The seizure of an individual is lawful if the officer can 
articulate a "particularized and objective basis" to suspect that 
the person was engaged in criminal activity.  Berge v. 
Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 
	The trial court ruled that the officers had an articulable 
suspicion to believe that appellant violated a statutory obligation 
to stop and give information under Minn. Stat.  169.09, subd. 
3 (1994).  We agree with appellant's argument, apparently now 
undisputed by the state, that the statute does not apply because 
the duty to stop and give information applies only to an accident 
causing bodily injury or death to a person or an accident 
causing injury to an attended vehicle.  Id., subds. 1, 2 (1994).
	The Commissioner cites additional reasons to affirm the 
trial court decision, but appellant contends the Commissioner 
may not rely on a new theory raised for the first time on appeal. 
 See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (party 
generally may not obtain review on theory not presented 
below).  An appellate court will not, however, reverse a trial 
court's correct decision merely because it is based on an 
incorrect reason.  Schweich v. Ziegler, Inc., 463 N.W.2d 722, 
728 (Minn. 1990).
	The officer here had reasonable suspicion to investigate 
appellant as a driver who did not notice or heed warning lights 
and who failed to react to the slowed and cautious traffic in the 
area.  Appellant's further decision to leave the scene after 
striking the horse, despite the presence of a squad car, could be 
seen as evasive conduct of an impaired driver, giving rise to 
reasonable suspicion.  See State v. Johnson, 444 N.W.2d 824, 
827 (Minn. 1989) (evasive behavior raises reasonable suspicion 
of wrongdoing).  The suspect vehicle, showing signs of the 
collision with the horse, was parked outside a restaurant and the 
registered owner was inside the restaurant.  This provided the 
officers with reasonable suspicion that appellant had been the 
driver and, as a matter of law, supported the equivalent of an 
investigatory stop.  Cf. State v. Pike, ___N.W.2d ___ (Minn. 
July 3, 1996) (absent facts making it unreasonable to assume 
owner is driver, officer's knowledge that owner's license is 
suspended provides reasonable suspicion justifying Terry stop).


	Appellant claims the trial court erred in concluding that 
the officer had probable cause to believe he had been driving 
while under the influence.  "The trial court's determination 
* * * of whether probable cause existed to request an alcohol 
concentration test * * * is a mixed question of law and fact."  
Flamang v. Commissioner of Pub. Safety, 516 N.W.2d 577, 
580 (Minn. App. 1994), review denied (Minn. July 27, 1994).  
The totality of the circumstances must be considered.  
Eggersgluss v. Commissioner of Pub. Safety, 393 N.W.2d 
183, 185 (Minn. 1986).
	The trial court noted that appellant admitted he had been 
driving, failed a field sobriety test, and said he had four to six 
drinks in the previous four hours (although he claimed most 
were subsequent to driving).  He also "looked like he was under 
the influence at the time."  We agree that these facts show the 
officer had probable cause to believe that appellant had driven 
while under the influence.  See Costillo v. Commissioner of 
Pub. Safety, 416 N.W.2d 730, 733 (Minn. 1987) (objective 
probable cause existed where officer had reason to believe 
driver had rear-ended vehicle, given false name, and fled scene, 
and officer observed driver's bloodshot eyes, strong odor of 
alcohol, slurred speech, and belligerent behavior).
	The trial court rejected the assertion of intervening 
drinking as a defense because it is an affirmative defense that 
was not before the court.  See Dutcher v. Commissioner of 
Pub. Safety, 406 N.W.2d 333, 336 (Minn. App. 1987) (post-
accident drinking is affirmative defense).  On appeal appellant 
again attempts to assert intervening drinking as a defense, but 
the defense cannot be raised for the first time on appeal.  
Because appellant failed to raise it validly in the trial court, it is 
now waived.