This opinion will be unpublished and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

C1-96-457

C6-96-910

James Paul Meyers, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed November 19, 1996

Affirmed

Amundson, Judge

Hennepin County District Court

File No. AP9515231

Steven E. Boynton, 1012 Grain Exchange Building, 400 South Fourth Street, Minneapolis, MN 55415 (for appellant)

Hubert H. Humphrey, III, Attorney General, Joel A. Watne, Assistant Attorney General, 200 Capitol Office Building, 525 Park Street, St. Paul, MN 55103-2106 (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

AMUNDSON, Judge

Appellant James Paul Meyers challenges the trial court's order sustaining the revocation of his driver's license, arguing that: (1) the pre-hearing cancellation violated his due process rights; (2) the evidence was insufficient to support the Commissioner's decision; and (3) the limit on the amount of time to present oral testimony deprived him of a fair trial. We affirm.

FACTS

On October 28, 1985, the Commissioner of Public Safety (Commissioner) cancelled, revoked, and denied appellant James Paul Meyers's driver's license as a result of four alcohol-related driving violations. The Commissioner declared Meyers to be "inimical to public safety" and required him to complete rehabilitation before his license would be reinstated. On December 1, 1988, the Commissioner reinstated Meyers's driver's license on the condition that he abstain from alcohol, also commonly referred to as a "B" card restriction.

On September 22, 1991, Mendota Heights Police Officer Dave Olson questioned Meyers regarding a possible "domestic" in the parking lot of Jose's Bar & Grill in Hennepin County. Officer Olson, on a routine patrol, concluded that Meyers was using alcohol, as his eyes were glassy and bloodshot, his balance was poor, and his breath emitted an odor of alcohol. Following Officer Olson's report of the incident, Meyers's alcohol consumption was reported to the Commissioner. The Commissioner, determining that there was sufficient cause to believe Meyers used alcohol, directed that his driver's license be cancelled. Meyers petitioned for reinstatement.

At the hearing, the court limited the time for oral testimony to one hour, allocated equally between appellant and respondent. Officer Olson testified that on September 22, 1991, Meyers used alcohol, as his eyes were glassy and bloodshot, his balance was poor, and his breath emitted an odor of alcohol. The trial court found the testimony of Officer Olson to be "credible and persuasive" and affirmed the Commissioner's decision to cancel Meyers's driving privileges. This appeal followed.

DECISION

I. Pre-Hearing Deprivation of Meyers's Driving Privileges

Meyers argues that the pre-hearing cancellation of his driver's license is a violation of his due process rights. Meyers asserts that, given the nature of the property at stake and the likelihood of erroneous deprivation, such pre-hearing actions should be held unconstitutional.

An appellate court will only consider issues that the record shows were presented and considered by the trial court in deciding the matter before it. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988).

Upon a careful examination of the trial court record, the issue of due process cannot be found. Thus, the issue of due process has not been presented and considered by the trial court and cannot be appropriately considered on appeal.

II. Sufficiency of the Evidence

Generally, there is a presumption of regularity and correctness when license matters are reviewed. Antl v. State Dept. of Public Safety, 353 N.W.2d 240, 242 (Minn. App. 1984). This court will not reverse a license determination unless it finds that it is unsupported by substantial evidence or is arbitrary and capricious. Mechtel v. Commissioner of Public Safety, 373 N.W.2d 832, 834 (Minn. App. 1985).

Meyers argues that the trial court's finding that he had consumed alcohol, thereby providing cause for terminating his driving privileges, is unsupported by substantial evidence. Specifically, he argues that evidence of his consumption was based solely on the police officer's observations and thus is insufficient.

Minn. Stat. § 171.19 provides that the trial court is to

take testimony and examine into the facts of the case to determine whether the petitioner is entitled to a license or is subject to revocation, suspension, cancellation, or refusal of license, under the provisions of this chapter.

This court must then give due regard to the trial court's assessment of the credibility of a witness. Minn. R. Civ. P. 52.01.

The trial court found the testimony of Officer Olson to be more credible than Meyers's testimony. Officer Olson observed and testified that Meyers had poor balance, bloodshot and glassy eyes, and a strong odor of alcohol on his breath. These observations, being indica of intoxication, lead to the conclusion that Meyers had consumed alcohol. Thus, the trial court, relying on the report of Officer Olson, had sufficient evidence to believe Meyers consumed alcohol and to find the cancellation of his driver's license was proper.

III. Time Limitation

Meyers argues that the trial court's time limitation of one-half hour to present oral testimony deprived him of a fair trial, as he had to forego calling witnesses in order to comply with the court's order.

Minn. R. Evid. 611 gives the trial court the authority to control the interrogation of witnesses and the presentation of evidence. Rule 611 states in relevant part that the court shall

exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

Minn. R. Evid. 611 (1994).

The trial court's time limitation of one-half hour for oral testimony is an exercise of control over the mode of the presentation of evidence. Under Rule 611, the trial court has the authority to impose reasonable limits on the presentation of evidence. The limitation is reasonable in light of the fact that oral testimony was not the only means by which Meyers had to present evidence, as the opportunity to present evidence by affidavit is always available under Minn. Stat. § 171.19.

Affirmed.

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