This opinion will be unpublished and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

C1-96-300

Bryan Kent Magnuson, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed October 29, 1996

Affirmed

Toussaint, Chief Judge

Hennepin County District Court

File No. 473250

James P. Westphal, 270 Grain Exchange Building, 301 Fourth Avenue South, Minneapolis, MN 55415 (for appellant)

Hubert H. Humphrey, III, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for respondent)

Considered and decided by Amundson, Presiding Judge, Toussaint, Chief Judge, and Foley,[*] Judge.

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

TOUSSAINT, Chief Judge

Appellant Bryan Kent Magnuson challenges the implied consent revocation of his driver's license, asserting that he had not been driving the vehicle. Because the district court findings are not clearly erroneous and were sufficient, we affirm.

D E C I S I O N

On appeal, we review a driver's claim that the district court clearly erred in its findings. Llona v. Commissioner of Pub. Safety, 389 N.W.2d 210, 212 (Minn. App. 1986) (citing State, Dept. of Highways v. Beckley, 291 Minn. 483, 486-87, 192 N.W.2d 441, 445 (1971)). A district court's conclusions of law will be reversed if the court erroneously construed the law. Dehn v. Commissioner of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986); see Durfee v. Red Baxter Imports, Inc., 262 N.W.2d 349 (Minn. 1977). In this case, Magnuson claims that the district court clearly erred in finding he was the driver of the van and that the district court findings were insufficient.

When an alleged driver claims at a judicial review hearing that he or she was not the actual driver of the vehicle, the Commissioner must prove this fact by a preponderance of the evidence. Llona, 389 N.W.2d at 212. In cases such as this where there is a dispute as to the identity of the driver, this court has repeatedly deferred to the district court's determination as to the credibility of witnesses. See, e.g., id. at 211-12 (district court decision to credit alleged driver's admission at scene that he had been driving, rather than testimony by several witnesses that another had been driving, not clearly erroneous).

Magnuson argues that the evidence was insufficient to show he had been driving after leaving the bar. He cites the officer's testimony that when he arrived on the scene, Magnuson was in the passenger seat and the officer saw no indication that Magnuson and his companion had switched seats. Magnuson acknowledges that, to protect his companion, he initially told the officer he was driving. He contends that once it was apparent he was the subject of a DWI investigation, he immediately admitted the "truth" and then consistently maintained those facts. Further, Magnuson testified under oath at the hearing that he was not driving and had relinquished the keys to his companion while at the bar. Magnuson notes that while the officer reached his conclusion that Magnuson was the driver based in part on the belief that his companion was too intoxicated to drive, Magnuson offered alternative explanations for his companion's condition.

The district court's decision was based on Magnuson's initial admission and the testimony by the witnesses. The district court was in the best position to determine the credibility of witnesses, and its decision is not clearly erroneous.

Magnuson also asserts that the district court's findings were confusing and insufficient to support the order sustaining the revocation of his driver's license. The district court order sustaining the revocation was based upon its determination that Magnuson was the driver. Its findings on this disposition issue are sufficient.

Magnuson also argues that he was not in physical control of the vehicle. This issue was not raised in the district court and, in any event, it appears to be undisputed that his companion was in physical control of the vehicle at the time the officers approached.

Affirmed.

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