This opinion will be unpublished and

may not be cited except as provided by

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




David Lee Smetana, petitioner,



Commissioner of Public Safety,


Filed April 8, 1997


Peterson, Judge

Carver County District Court

File No. C5951868

Richard L. Swanson, P.O. Box 85, Chaska, MN 55318 (for Appellant)

Hubert H. Humphrey, III, Attorney General, Jeffrey S. Bilcik, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for Respondent)

Considered and decided by Norton, Presiding Judge, Peterson, Judge, and Mulally, Judge.[*]



On appeal from an order sustaining the revocation of his driver's license under the implied consent statute, David Lee Smetana challenges the district court's determination that he was in physical control of a motor vehicle. We affirm.


Chaska police officer Bradley Allan Cragoe was dispatched to check on a report about a possible drunken driver in a vehicle that was stopped in a driveway in the area of 90 Thomas Lane. Cragoe testified that he arrived in that area about five minutes after being dispatched and saw a station wagon stopped in the driveway at 87 Thomas Lane. Cragoe walked up to the station wagon and observed that the engine was running, the headlights were on, the keys were in the ignition, and two dogs were in the back seat. Cragoe also observed a person sitting in the driver's seat, slumped over towards the right, but with his feet under the steering column.

Cragoe testified that he knocked on the window several times, but the person inside did not respond. Cragoe continued knocking, and the person slowly sat up and looked at him. Cragoe identified the person as Smetana. Based on Smetana's physical appearance and mannerisms, Cragoe believed Smetana was under the influence of some chemical. Cragoe arrested Smetana for driving while under the influence (DWI). Smetana submitted to a breath test, which showed a blood alcohol concentration of .33.

Smetana testified as follows. He drove with his daughter to a bar. His daughter said that she was going to walk home if Smetana went inside to drink. Smetana went inside and drank a glass of brandy. He was only inside the bar for about a minute or a minute and a half. As he got into his car, Smetana saw his daughter walking up the hill. Smetana drove home and parked in his driveway. Smetana got some alcohol out of his daughter's truck, which also was parked in the driveway and stayed in his car, waiting for his daughter to come home. He stayed in his car instead of going into his house because he had not been alone in the house since his wife died. Also, he wanted to be sure he saw his daughter when she came home, so he could try to make amends with her. Smetana left his car running because it was cold outside. He did not intend to drive anywhere after parking his car in the driveway, and he did not think he was passed out or asleep when Cragoe arrived. He thought he might have been crying. Smetana estimated that he had been parked in his driveway for five to ten minutes when Cragoe arrived.


To sustain a driver's license revocation under the implied consent statute, the Commissioner must prove "by a fair preponderance of the evidence that the person was in physical control of the vehicle." Roberts v. Commissioner of Pub. Safety, 371 N.W.2d 605, 607 (Minn. App. 1985), review denied (Minn. Oct. 11, 1985). A reviewing court defers to the district court's assessment of witness credibility and will not reverse its fact findings unless they are clearly erroneous. Frost v. Commissioner of Pub. Safety, 348 N.W.2d 803, 804 (Minn. App. 1984). Once the facts are determined, the issue of physical control is a question of law. Snyder v. Commissioner of Pub. Safety, 496 N.W.2d 858, 860 (Minn. App. 1993). This court will reverse the district court's conclusions of law if the district court "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).

The supreme court has

said that the term "physical control" should be given "the broadest possible effect" and that the intent was to deter inebriated persons from getting into vehicles except as passengers.

State v. Starfield, 481 N.W.2d 834, 836 (Minn. 1992) (quoting State, Dep't of Pub. Safety v. Juncewski, 308 N.W.2d 316, 319 (Minn. 1981)). The prohibition against being in physical control of a vehicle while intoxicated

is meant to cover situations where an inebriated person is found in a parked vehicle under circumstances where the car, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property.

Id. at 837.

Factors to consider in determining the existence of physical control include (1) the person's location in or near the vehicle; (2) the location of the ignition keys; (3) whether the person or someone else drove the car to its stopping place; (4) the owner of the vehicle; and (5) whether the vehicle was operable and, if not, whether it could have been made operable and become a danger to people or property. Id. at 839. The state need not prove intent to operate the vehicle because "[a] drunken intent is highly problematic and too easily manipulated after the fact." Id.

Smetana argues that State v. Pazderski, 352 N.W.2d 85 (Minn. App. 1984), should control this case. In Pazderski, appellant drove his car home and parked it by his garage at about midnight. Id. at 86. Because of a quarrel with his girlfriend, he decided to sleep in the car. Id. Police arrived about three hours later and found Pazderski

sleeping in the front seat, sitting in the driver's side with his head over towards the passenger side. The car was not running, and the keys were not in the ignition. There was no evidence that the car had been driven recently. Further, no facts in the record supported any inference other than that appellant had been soundly sleeping and had the intention of sleeping the rest of the night there as he claimed.

Id. at 87. This court reversed a finding of physical control. Id. at 89.

This case is factually distinguishable from Pazderski. Smetana's car was running, and the keys were in the ignition. Smetana drove his car home and parked it in the driveway only five or ten minutes before Cragoe arrived. Even if Smetana had planned to stay at home and wait for his daughter, a danger existed that he could have changed his mind and driven somewhere. We conclude that Pazderski does not control this case and that the evidence was sufficient to show Smetana was in physical control of his vehicle.

Smetana also argues that Cragoe lacked a sufficient basis for an investigatory stop of Smetana's vehicle. Smetana concedes that he raises this issue for the first time on appeal. Issues not raised before the district court will not be considered by an appellate court. Juncewski, 308 N.W.2d at 319 n.2.

Smetana argues that this court should address the issue because the record shows the district court considered the issue even though Smetana did not raise it. Although the district court asked Cragoe about why he approached Smetana's vehicle based on the information he received from dispatch, the parties expressly limited the issue before the district court to physical control. In its findings the court stated that the parties had narrowed the issue to "one of driving, operating or in physical control." Because the parties did not present the issue of the sufficiency of the basis for an investigatory stop to the district court and the district court did not decide the issue, we decline to address it.


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