This opinion will be unpublished and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

C1-96-1236

Timothy Hugh Buckley, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed March 4, 1997

Affirmed

Peterson, Judge

Ramsey County District Court

File No. C7962354

Barry V. Voss, Timothy J. Hickman, Voss & Hickman, P.A., 527 Marquette Avenue South, Suite 840, Minneapolis, MN 55402 (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 Willis, Presiding Judge, Parker, Judge, and Peterson, Judge.

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

PETERSON, Judge

Appellant's restricted driver's license allowed him to drive only if he did not consume alcohol. The Commissioner of Public Safety cancelled and denied appellant's driving privileges after an officer observed and reported appellant's intoxication. Appellant petitioned for reinstatement, and the trial court denied the petition. We affirm.

FACTS

In 1990, appellant's driver's license was cancelled and denied as inimical to public safety. In 1991, he regained his license on the condition that he consume no alcohol. Appellant's driving privileges were again cancelled and denied effective January 9, 1996, after Corporal Gary Jones reported that he had observed appellant under the influence of alcohol. Appellant petitioned for reinstatement.

At the reinstatement hearing, Jones testified that while investigating a fight at a bar on December 25, 1995, he spoke with appellant. Jones described appellant as having very bloodshot eyes, a very strong odor of alcohol on his breath, red or flushed skin, and a very agitated and argumentative manner, indicating to Jones that appellant had consumed alcohol. At the time, Jones did not say anything to appellant about his condition because appellant was extremely agitated, others outside the bar wanted to continue the fight, and the bar was packed. Jones's main objectives were to keep the peace, separate the combatants, and remove them from the bar. Appellant's alcohol violation was secondary.

Appellant's witnesses testified that they did not observe appellant consuming alcohol or showing signs of intoxication on the night in question. Appellant denied consuming alcohol either before or after entering the bar, and offered other explanations for the apparent indicia of intoxication. Appellant testified that a former roommate, who was being escorted out of the bar for fighting, punched him in the face without provocation. He acknowledged having dinner occasionally at the bar during the past year, but testified he had not consumed alcohol at any time since his June 1990 sobriety date.

The general manager of the bar testified that he did not form an opinion as to appellant's intoxication on the evening in question because he was preoccupied with the fight. He also testified, over appellant's objection, that within the past year he witnessed appellant consume alcohol on three occasions. Appellant, on recall, testified that while at the bar he consumed only nonalcoholic beverages, such as nonalcoholic beer, and his companions drank beer.

The trial court found that the Commissioner, as a result of the December 25, 1995, incident at the bar had sufficient reason to believe that appellant had consumed alcohol on that date. The court also found that appellant had, in fact, consumed alcohol on December 25, 1995. The court credited Jones's testimony that he had detected an odor of alcohol on appellant's breath. The trial court denied appellant's petition for reinstatement.

D E C I S I O N

1. The Commissioner cancelled and denied appellant's driver's license pursuant to Minn. Stat. §§ 171.14 (1994) and 171.04, subd. 1(8) (Supp. 1995) upon determining that there was good cause to believe that appellant's operation of a motor vehicle would be "inimical to public safety." This was based on Jones's report that appellant showed signs of intoxication, indicating he had consumed alcohol in violation of his license restriction. See Minn. R. 7503, 1300, subpt. 3 (1995) (Commissioner shall cancel driver's license of person whose license has been reinstated after completion of rehabilitation when Commissioner has sufficient cause to believe person has consumed alcohol); Minn. R. 7503, 1700, subpt. 6 (1995) (Commissioner shall cancel driver's license of person on sufficient cause to believe person has consumed alcohol after rehabilitation); see also Thorson v. Commissioner of Pub. Safety, 519 N.W.2d 490, 493 (Minn. App. 1994) (use of alcohol in violation of total abstinence restriction on driver's license constituted good cause to believe person's operation of motor vehicle would be inimical to public safety).

Appellant sought judicial review of the decision pursuant to Minn. Stat. § 171.19 (1994). In reviewing the acts of the Commissioner at a hearing under section 171.19,

the district court is not bound by the record reviewed by the Commissioner and may consider additional evidence at the hearing.

Thorson, 519 N.W.2d at 493. There is a presumption of regularity and correctness when the court reviews license matters, and we will not reverse a license determination unless the determination is unsupported by substantial evidence or arbitrary and capricious. Id.

Appellant challenges the trial court's finding that he had consumed alcohol on December 25, 1995, claiming it is not supported by substantial evidence. He contends that the source of the odor of alcohol detected by Jones was beer that was spilled on him and that the other indicia of intoxication were caused by his allergies and by being punched in the face shortly before he talked to Jones.

The trial court stated:

In this particular case, there is evidence that there may have been alcohol spilled on Mr. Buckley's person or there may have been evidence that there was alcohol that might have been spilled in the entryway. While there might have been testimony about some general alcohol odor that might have flowed from the bar itself, the testimony of Corporal Jones was unequivocal in that he detected an odor of alcohol from Mr. Buckley's breath on different occasions during the time period in which he had conversations with Mr. Buckley. This Court is persuaded by that testimony and that testimony alone that, indeed, Mr. Buckley had consumed alcohol on December 25, 1995.

The trial court's decision to credit Jones's testimony and rely on the odor of alcohol on appellant's breath to show that appellant violated the total abstinence requirement is supported by substantial evidence and is not arbitrary and capricious.

2. Appellant next contends that the trial court abused its discretion when it admitted the bar manager's testimony that he saw appellant use alcohol on three occasions before December 25, 1995. The decision to admit or exclude evidence rests within the discretion of the trial court and will be reversed only when "it is based on an erroneous view of the law or constitutes an abuse of discretion." Uselman v. Uselman, 464 N.W.2d 130, 138 (Minn. 1990). Whether a party is entitled to a new trial depends on whether the complaining party can demonstrate prejudicial error. Id.

Appellant contends that admitting the manager's testimony violates Minn. R. Evid. 608(b), which provides:

Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, other than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness * * * .

Appellant's testimony that he took his last drink in 1990 opened him up to cross-examination to test his credibility. See State v. Clark, 296 N.W.2d 359, 367-68 (Minn. 1980)(defendant's testimony on direct examination that vehicle he was driving when arrested was 1967 model he had owned since 1968 allowed state to impeach by eliciting admission that vehicle was stolen 1973 model). However, as appellant asserts, under rule 608(b) his credibility cannot be challenged by extrinsic evidence as was done here. It was improper to admit the bar manager's testimony to impeach appellant's testimony as to the date of his last drink.

Appellant claims that although the court took great pains to specifically state its decision was based solely on Jones's testimony, the court was unable to disregard the bar manager's testimony in what appellant characterizes a "very shaky case." See Farmers' Union Elevator Co. v. Syndicate Ins. Co., 40 Minn. 152, 154, 41 N.W. 547, 547-48 (1889) (new trial ordered when trial court committed error by refusing to strike evidence; remand because unable to predict result in absence of erroneously admitted testimony).

The supreme court has addressed the situation in which a party claimed that the improper introduction of evidence tainted the trial court's fact-finding process.

We have confidence in the ability of a court in a trial without a jury to be objective and to disregard evidence improperly admitted. While a mere recital by the court that it was not influenced by the improper evidence will not suffice, such a statement together with other evidence supporting the judgment and indicating that the inadmissible evidence was not a material factor in the court's decision will preclude reversal.

Chris/Rob Realty v. Chrysler Realty Corp., 260 N.W.2d 456, 459 (Minn. 1977).

The trial court found that Jones's testimony that he detected an odor of alcohol from appellant's breath was unequivocal. Jones's testimony, by itself, was sufficient to support the judgment. Consuming alcohol on December 25, 1995, alone violated appellant's restricted driving privileges. When the trial court found Jones's testimony credible and concluded that appellant had consumed alcohol on December 25, 1995, it was not necessary to demonstrate that appellant consumed alcohol on any other occasion. Jones's testimony and the trial court's statement that it was persuaded solely by Jones's testimony indicate that the manager's testimony was not a material factor in the trial court's decision and preclude reversal.

Affirmed.