This opinion will be unpublished and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

C2-96-1746

Larry Wayne Erickson, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed February 18, 1997

Affirmed

Harten, Judge

Ramsey County District Court

File No. C0-96-5449

Daniel S. Dunham, Kalina, Willa, Woods, Gisvold & Clark, P.L.L.P., 941 Hillwind Rd. N.E., #200, Minneapolis, MN 55432 (for Appellant)

Hubert H. Humphrey, III, Attorney General, Peter R. Marker, Assistant Attorney General, 525 Park St., Ste. 200, St. Paul, MN 55103-2106 (for Respondent)

Considered and decided by Short, Presiding Judge, Amundson, Judge, and Harten, Judge.

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

HARTEN, Judge

Appellant challenges the district court order sustaining the revocation of his driving privileges and impoundment of his license plates. He argues that (1) he was subjected to an unconstitutional investigatory stop and (2) he did not have four alcohol-related violations within 15 years in violation of Minn. Stat. § 168.042 (1996). We affirm.

FACTS

In the early morning hours of May 10, 1996, Officer William Sortor of the New Brighton Police Department observed a van with its lights on and its motor running parked in front of an automobile repair business along Old Highway 8. Sortor was aware of recent burglaries at businesses along Old Highway 8; he also knew that this particular business had been vandalized at night on several occasions, most recently a few days earlier.

Finding the circumstances unusual, Sortor decided to check out the van "to make sure everything was all right." Sortor pulled up behind the van, which was partially blocking the driveway entrance, and shined his spotlight on the vehicle; the van's driver turned off the vehicle's engine and lights. Sortor approached the van and found appellant Larry Wayne Erickson seated in the driver's seat. Sortor noted that appellant had watery and bloodshot eyes, slurred speech, and the smell of alcoholic beverages on his breath. Sortor arrested appellant for DWI; appellant submitted to an alcohol concentration test, which indicated a result greater than 0.10. Subsequently, the Commissioner revoked appellant's driving privileges and impounded his license plates because this was his fourth alcohol-related incident within 15 years.

Appellant sought judicial review of the Commissioner's actions. After an implied consent hearing, at which only Officer Sortor testified, the district court made oral findings of fact and conclusions of law on the record. The district court concluded that (1) Sortor had a reasonable and articulable basis to stop appellant's van and (2) appellant had four alcohol-related violations, as defined by Minn. Stat. § 168.042, subd. 1, within 15 years. This appeal followed.

D E C I S I O N

1. Appellant challenges the propriety of Officer Sortor's initial contact with him. He asserts that the reason articulated by Sortor (i.e., early morning observation of a van, with its motor running and lights on, parked in front of a closed business that had been a recent crime victim) was insufficient to justify a stop. Before considering appellant's assertion, we first determine whether appellant was seized, thereby triggering the constitutional requirement for reasonable and articulable suspicion. See In re Welfare of E.D.J., 502 N.W.2d 779, 783 (Minn. 1993) (stating police need not possess articulable suspicion to approach a person in public unless there was a "seizure").

To determine whether a seizure has occurred, we look objectively at the totality of the circumstances and ask whether a reasonable person in the subject person's position would have concluded that he or she was not free to leave. Id. Generally, it has been held that no seizure occurs when an officer approaches a parked car to speak with the occupant. State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980) (no seizure for officer to approach parked car and shine flashlight through window); see also Crawford v. Commissioner of Pub. Safety, 441 N.W.2d 837, 839 (Minn. App. 1989) (no seizure where officer approached parked vehicle to talk to driver and then observed indicia of intoxication); State v. McKenzie, 392 N.W.2d 345, 346-47 (Minn. App. 1986) (no seizure where officer approached already stopped vehicle).

An officer's show of authority and subsequent conduct, however, may change the tenor of the initial contact and convert it into a seizure. See State v. Pfannenstein, 525 N.W.2d 587, 589 (Minn. App. 1994) (officer's request for identification constitutes seizure if reasonable person would believe they were not free to leave or decline request); Paulson v. Commissioner of Pub. Safety, 384 N.W.2d 244, 246 (Minn. App. 1986) (defendant seized when asked to leave her vehicle and be seated in patrol car).

Here, Sortor pulled in behind appellant's parked van. He did not block the van, activate his overhead flashing lights, or otherwise show his authority; he merely shined his spotlight into the van to observe its occupants. Sortor then approached the van to talk to the driver and while speaking with appellant, observed indicia of intoxication. We conclude that Sortor did not seize appellant until he had probable cause to suspect appellant of operating a motor vehicle while under the influence of alcohol. Therefore, because we conclude that appellant was not seized when first approached, we need not consider appellant's assertion that Sortor's articulated suspicion was insufficient to support a stop.[1]

2. Appellant also challenges the impoundment of his license plates, arguing that a refusal to take an implied consent test is not a "violation," as defined by Minn. Stat. § 168.042, subd. 1(c)(1) (1996), unless it results in a criminal conviction. Appellant contends that since his implied consent test refusals in 1983 and 1986 did not result in criminal convictions, these incidents are not "violations."[2]

The impoundment statute directs the commissioner to impound license plates when a person's driver's license or driving privileges are revoked for "a fourth or subsequent violation, as defined in subdivision 1, paragraph (c), clause (1), within 15 years." Minn. Stat. § 168.042, subd. 2(1) (1996). Subdivision 1 defines "violation" as

a violation of section 169.123 or an impaired driving conviction as defined in section 169.121, subdivision 3, that results in the revocation of a person's driver's license or driving privileges, and also includes an alcohol-related license revocation from another state * * *.

Minn. Stat. § 168.042, subd. 1(c)(1).

Appellant construes the language "a violation of section 169.123" to apply only to individuals who take an implied consent test with results over 0.10 and are then convicted. We disagree. It is a person's refusal to take an implied consent test that constitutes a violation of section 169.123 (1996). The implied consent statute presumes a person's consent to testing and requires a person submit to testing in statutorily defined situations. Minn. Stat. § 169.123, subd. 2(a) (motor vehicle operator consents to testing and test is required if officer has probable cause and statutory preconditions exist). Thus, refusal of this requirement violates section 169.123 and can be the basis for revocation of a person's driving privileges. Minn. Stat. § 169.123, subd. 4 (revocation for test refusal). Because appellant's 1983 and 1986 test refusals were violations of section 169.123, the incidents are "violations" as defined by section 168.042, subd. 1(c)(1).

Finally, appellant raises an ex post facto law argument claiming that the impoundment of his license plates necessitated the improper retroactive application of section 168.042. The use of prior violations or convictions occurring before the effective date of the enhancement provision, however, does not violate the ex post facto doctrine. Cf. State v. Willis, 332 N.W.2d 180, 185 (Minn. 1983) ("The use of prior convictions to increase punishment for an underlying substantive offense committed after the effective date of a statute providing for increased penalties does not violate the ex post facto provisions of either the state or federal constitutions."). Therefore, we conclude that the district court properly sustained impoundment of appellant's license plates.

Affirmed.

[ ]1Even were we to consider appellant's seizure argument, we believe that Sortor's testimony provided a sufficient basis to justify a stop. Given (1) Sortor's knowledge of recent after-hours crimes at the business, (2) the early morning hour, and (3) Sortor's observation of appellant's solitary idling van in front of a closed business, we believe that there was an adequate basis to justify a stop. See Olmscheid v. Commissioner of Pub. Safety, 412 N.W.2d 41, 43 (Minn. App. 1987) (officer's knowledge of previous theft from business and the presence of a vehicle on a deadend road in the early morning hours provided sufficient basis for investigatory stop), review denied (Minn. Nov. 6, 1987).

[ ]2 Appellant concedes that his 1984 and 1996 license revocations are "violations" as defined by statute.