This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C1-96-751

Martin Joseph Lavalle, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed December 17, 1996

Affirmed

Peterson, Judge

Ramsey County District Court

File No. CX961067

Steven L. Bergeson, 111 South Broadway, Jordan, MN 55352-1505 (for Appellant)

Hubert H. Humphrey, III, Attorney General, Nancy J. Bode, Assistant Attorney General, 500 Capitol Office Building, 525 Park Street, St. Paul, MN 55103-2106 (for Respondent)

Considered and decided by Peterson, Presiding Judge, Klaphake, Judge, and Davies, Judge.

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

PETERSON, Judge

Martin Lavalle appeals from an order sustaining his driver's license revocation. We affirm.

FACTS

In the early morning hours of December 31, 1995, state troopers investigated a report of a van in a ditch. When the troopers arrived at the scene, appellant's wife was in the van, and appellant was outside. Appellant's wife initially told a trooper that appellant had been driving the van when it went into the ditch. At some point, appellant denied that he had been driving. A trooper observed signs of intoxication, and appellant was arrested for driving while under the influence of alcohol.

The trooper read the implied consent advisory to appellant twice. Appellant attempted unsuccessfully to contact an attorney and then refused testing, giving as his reason that "I wasn't driving." His driver's license was revoked pursuant to the implied consent law for refusing testing.

Appellant petitioned for judicial review. At the hearing, both he and his wife testified that his wife was the driver at the time of the accident. His wife admitted that she initially told the trooper that appellant had been driving. The district court found the trooper had probable cause to believe appellant had been driving while under the influence. It declined to address the issue of actual driving because appellant refused the implied consent test.

D E C I S I O N

Findings of fact will not be set aside by the appellate court unless clearly erroneous. State, Dep't of Highways v. Beckey, 291 Minn. 483, 487, 192 N.W.2d 441, 445 (1971). Conclusions of law will be overturned if the appellate court determines the district court erroneously construed and applied the law to the facts. Dehn v. Commissioner of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986).

A person's driver's license will be revoked if a peace officer certifies that there was probable cause to believe the person was driving under the influence of alcohol and that the person refused to submit to an alcohol concentration test or submitted to a test and the test results indicated an alcohol concentration of 0.10 or more. Minn. Stat. § 169.123, subd. 4 (1994). A person whose driver's license was revoked may petition for judicial review. Minn. Stat. § 169.123, subd. 5c (1994). Judicial review is available regardless of whether the person refused to submit to a test or submitted to a test and failed. Flamang v. Commissioner of Pub. Safety, 516 N.W.2d 577, 580 (Minn. App. 1994), review denied (Minn. July 27, 1994).

In Flamang, this court explained that the scope of review differs depending on whether the driver failed or refused testing. Id. This court held that where the revocation is based on a refusal to submit to testing, the scope of judicial review is limited to those issues permitted by Minn. Stat. § 169.123, subd. 6 (1992). Flamang, 516 N.W.2d at 580. These issues include whether the officer had probable cause to believe the person was driving while intoxicated, whether statutory preconditions were met, whether the person was properly advised, and whether the person refused to permit the test. Id. (citing Minn. Stat. § 169.13, subd. 6 (1992)) The driver also may raise the affirmative defense that the refusal was based on reasonable grounds. Minn. Stat. § 169.123, subd. 6 (1994).

When the alleged driver claims not to have been driving, the Commissioner must prove this fact by a preponderance of the evidence. Llona v. Commissioner of Pub. Safety, 389 N.W.2d 210, 212 (Minn. App. 1986). In Flamang, however, this court held that only drivers who take and fail the test may raise this issue:

Where a driver submits to testing, revocation is premised on the test results and the fact that the person drove, operated or had actual control of a vehicle. But where a driver refuses to submit to testing in the face of probable cause that the driver was in physical control of a motor vehicle while intoxicated, revocation is based on the refusal to act on the lawful request of a peace officer. Because in the instant case appellant refused to submit to testing, the question whether he actually was in physical control of his vehicle was irrelevant and outside the permissible scope of judicial review.

516 N.W.2d at 580.

In this case, the district court found that the trooper had probable cause to believe appellant had been driving while intoxicated, based on appellant's wife's statement that he had been driving and his failed field sobriety tests. The court determined that, under Flamang, whether appellant had actually been driving was outside the scope of judicial review because appellant refused testing.

Appellant argues on appeal that Flamang is distinguishable on the facts because the issue there was whether the sole occupant of the vehicle was in actual physical control, while in this case the issue was which of two people was the driver. We do not find the factual differences significant. In Flamang, as in this case, the alleged driver claimed that he was not actually driving, operating, or in physical control. 516 N.W.2d at 580-81. Further, we disagree with appellant's contention that Flamang is inconsistent with the policy that drunk drivers should be encouraged to find a designated driver. See Hansen v. Commissioner of Pub. Safety, 478 N.W.2d 229, 231 (Minn. App. 1991) (purpose of implied consent law is to encourage people who have been drinking to find a designated driver).

During oral argument, appellant claimed that his refusal to submit to testing was reasonable because he had not been driving the van. Appellant contended that this case should be remanded to the district court for a determination of whether his refusal was reasonable.

It shall be an affirmative defense for the petitioner to prove that, at the time of the refusal, the petitioner's refusal to permit the test was based upon reasonable grounds.

Minn. Stat. § 169.123, subd. 6.

Appellant did not raise this issue in his petition for judicial review or before the district court. At the beginning of the hearing, in response to the district court's question about the issues raised in the case, appellant's counsel stated:

The issues, Your Honor, are whether the officer had probable cause. Whether they had probable cause to believe that my client was driving the vehicle. Whether he was correctly informed of his rights. Whether he had sufficient time to speak with--consult with an attorney prior to making a decision.

Finally, the transcript of the review hearing demonstrates that appellant did not ask the district court to determine whether his refusal was reasonable because he was not driving. The transcript indicates only that appellant's reason for refusing the test was that he was not driving. This was not sufficient to raise the issue. Minn. Stat. § 169.123, subd. 5c requires the petitioner to "state with specificity the grounds upon which the petitioner seeks rescission of the order of revocation, disqualification, or denial." An issue that is neither raised in the petition nor litigated by consent will not be considered on judicial review. Kraker v. Commissioner of Pub. Safety, 372 N.W.2d 741, 742 (Minn. App. 1985), review denied (Minn. Sept. 19, 1985).

Affirmed.