This opinion will be unpublished and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

C1-96-1673

Dan Harold Wiltsey, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed January 28, 1997

Affirmed

Kalitowski, Judge

Anoka County District Court

File No. C09510530

Samuel A. McCloud, Adlai A. Brink, Suite 1000, Circle K, Box 216, Shakopee, MN 55379 (for Appellant)

Hubert H. Humphrey III, Attorney General, Steven H. Alpert, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for Respondent)

Considered and decided by Harten, Presiding Judge, Crippen, Judge, and Kalitowski, Judge.

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

KALITOWSKI, Judge

Dan Harold Wiltsey challenges the district court's determination that the scope of judicial review following a revocation based on test refusal does not include the question of whether Wiltsey actually was driving, operating, or in physical control of a motor vehicle. We affirm.

D E C I S I O N

There are no factual disputes in this case; Wiltsey is challenging the district court's conclusions of law. "Conclusions of law will be overturned only upon a determination that the district court has erroneously construed and applied the law to the facts of the case." Dehn v. Commissioner of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986).

Wiltsey argues the scope of judicial review following revocation based on test refusal should include a determination of whether the person was actually driving, operating, or in physical control of a motor vehicle. Wiltsey argues that Flamang v. Commissioner of Pub. Safety, 516 N.W.2d 577, 580 (Minn. App. 1994), review denied (Minn. July 27, 1994), which held otherwise, is wrong and should be overturned. To support his position, Wiltsey cites Minn. Stat. § 169.123, subd. 2(a) (1996), which provides in relevant part:

Any person who drives, operates, or is in physical control of a motor vehicle within this state or upon the ice of any boundary water of this state consents, subject to the provisions of this section and sections 169.121 and 169.1211, to a chemical test of that person's blood, breath, or urine for the purpose of determining the presence of alcohol, controlled substances, or hazardous substances. The test shall be administered at the direction of a peace officer. The test may be required of a person when an officer has probable cause to believe the person was driving, operating, or in physical control of a motor vehicle in violation of section 169.121 * * *

Relying on the first sentence of the above-quoted language, Wiltsey argues only persons who drive, operate, or are in physical control of a motor vehicle consent to submit to chemical testing, and therefore the Commissioner is required to prove the person was actually driving, operating, or in physical control of a motor vehicle in test refusal cases. We disagree.

First, the argument ignores the last sentence of the quoted statute, which indicates the circumstances under which a peace officer may require a person to take a chemical test. Id. Second, the argument fails to consider Minn. Stat. § 169.123, subd. 6(b) (1996), which provides for the scope of judicial review. In cases where revocation is based on refusal to submit to testing, the scope of judicial review shall be limited to the issues of: (1) whether the peace officer had probable cause to believe the person was driving, operating, or in physical control of a motor vehicle; (2) whether at the time of the request for the test the peace officer informed the person of the person's rights and consequences of taking or refusing the test; and (3) whether the person refused to submit to the test. Id.

In holding the scope of judicial review following revocation for test refusal does not extend to the question of whether the person actually was driving, operating, or in physical control of the vehicle, this court in Flamang followed Minnesota Statute section 169.123. We conclude the district court did not err in following Flamang. Likewise, we reject Wiltsey's argument that his test refusal was reasonable because he was not driving, operating, or in physical control of a motor vehicle. To hold that a claimed lack of actual driving, operating, or physical control of a motor vehicle constitutes grounds for reasonable refusal would render the law on test refusal meaningless and frustrate the purpose of the implied consent law to promote public safety.

Finally, in oral argument before this court, Wiltsey, for the first time, raised constitutional issues. Issues not presented to the district court will not be heard for the first time on appeal. Ronyak v. Pangerl, 302 Minn. 556, 557, 225 N.W.2d 533, 533 (1975). We therefore decline to address these issues.

Affirmed.