This opinion will be unpublished and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

C1-96-2158

Aleta Tulien, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed April 22, 1997

Affirmed

Lansing, Judge

Hennepin County District Court

File No. IC474117

Paul B. Ahern, Froberg & Ahern, P.A., 17736 Excelsior Boulevard, Minnetonka, MN 55345 (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 Peterson, Presiding Judge, Lansing, Judge, and Crippen, Judge.

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

LANSING, Judge

In an appeal from an order sustaining the Commissioner of Public Safety's revocation of a driver's license under the implied consent law, we affirm. The record supports the district court's conclusion that the driver was in physical control of her vehicle while under the influence of alcohol.

FACTS

Minnetonka police administered an Intoxilyzer test to Aleta Tulien that registered an alcohol concentration of .102. The police encountered Tulien outside her Ford Explorer near a house where she had previously lived with a former boyfriend. A neighbor arriving home at 10:20 p.m., had called the police when he saw Tulien exit from the driver's seat of the Explorer and shut the door. He called police again after he saw Tulien carry a box from the direction of the house and place it in the Explorer.

The responding police officer arrived within twenty minutes of the first call. He observed that the hood of the vehicle was still hot, indicating that the Explorer had been driven recently. The officer saw two open beer cans in the center console and a box in the rear cargo area. When the officer heard movement and footsteps in trees at the north end of the lot, he went to that area, and after he made repeated requests, Tulien emerged from the trees. Tulien told the officer that she had been feeding geese at a nearby pond. She provided inconsistent answers to the officer's questions of when she had arrived and how much she had to drink.

At the judicial review hearing, Tulien stated that she attended a band concert at First Avenue and on her way to a friend's house, she drove to her former neighborhood to feed the geese at a nearby pond. She stated that she drank two beers at First Avenue and drank another four cans of beer while feeding the geese. She said she returned to her car to drop off the empty beer cans and look for a tissue. She estimated that it took her about two minutes to put the beer cans in the Explorer and find the tissue. She then retrieved a box belonging to her that had been placed among debris at the edge of the driveway. Tulien said that she had intended to walk to another park area but when she saw the police cars, she started back to the Explorer.

Tulien failed a preliminary breath test and did poorly on field sobriety tests. The Minnetonka officer arrested Tulien and in a pat-down search found her ignition key in her right front pant's pocket. Tulien was taken to the Minnetonka police station where the Intoxilyzer test was administered. The search of her car produced four open beer cans, each containing a small amount of alcoholic liquid.

On these facts the district court sustained the license revocation. Tulien appeals the district court's holding that she was in physical control of the Explorer when she entered it to drop off her empty beer cans and search for a tissue.

D E C I S I O N

A district court's determination on the issue of whether probable cause exists to request an alcohol concentration test under Minn. Stat. § 169.123, subd. 2(a) (1996) is a mixed question of law and fact. Snyder v. Commissioner of Pub. Safety, 496 N.W.2d 858, 860 (Minn. App. 1993). In making that determination, a district court evaluates the credibility of the witnesses, the consistency of the testimony, the opportunity of the witness to observe, the strength of the observation, and the persuasive or probative value of the observation. Clow v. Commissioner of Pub. Safety, 362 N.W.2d 360, 363 (Minn. App. 1985), review denied (Minn. Apr. 26, 1985). We will not reverse a trial court's findings of fact unless those findings are clearly erroneous. State, Dep't of Highways v. Beckey, 291 Minn. 483, 487, 192 N.W.2d 441, 445 (1971). Once the facts are established, however, their significance becomes a question of law that we review de novo. See, e.g., Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985). A license revocation may be rescinded upon a subsequent determination that the person actually was not driving, operating, or in physical control of the vehicle. Flamang v. Commissioner of Pub. Safety, 516 N.W.2d 577, 579 (Minn. App. 1994) (citations omitted), review denied (Minn. July 27, 1994).

The Minnesota Supreme Court has defined physical control to encompass a broader range of circumstances than actual control: "[P]hysical control 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." State v. Starfield, 481 N.W.2d 834, 837 (Minn. 1992). Factors to consider in determining whether a person had physical control of a vehicle include the defendant's location in or by the vehicle, the location of the ignition keys, whether the defendant was a passenger when the vehicle was moving, the ownership of the vehicle, the operability or inoperability of the vehicle, and, if inoperable, the likelihood of its again becoming operable. Id. at 839. No one factor is dispositive; "it is the overall situation that is determinative." Id. at 838.

The district court, in oral findings stated on the record, considered some of these factors in concluding that Tulien was in physical control when she entered the car to drop off the empty beer cans and look for a tissue:

The court is determining that at the point in time after she even said she drank, given her story that she drank the beers by the park, she then entered the motor vehicle and deposited what was remaining of the beer cans in the motor vehicle. Mr. Swanson said he saw her leave the vehicle, not that she had been reaching into it, but he actually saw her exit the vehicle.

So in terms of physical control I find she was at that point in time. She had to open the car doors with the keys, she was in the car with the keys. She deposited the beer cans and the plastic and so forth so at that point in time after she had consumed the alcohol she was in physical control as far as I'm finding.

Relying, as the district court did, on Tulien's own testimony, the record clearly shows: (1) Tulien drove the car to her former neighborhood; (2) she became intoxicated and then entered and exited the vehicle; (3) it was late at night and there were no other passengers who might have driven her home; (4) she did not have the keys to her former residence; (5) the key to the ignition was in her pocket, and (6) the hood of the car was hot.

Tulien asserts that these findings, as a matter of law, are insufficient to demonstrate physical control. She relies on the reasoning in two cases that we find inapposite. In the first case, State, City of Falcon Heights v. Pazderski, 352 N.W.2d 85 (Minn. App. 1984), police officers found Pazderski asleep in his car, parked at his residence, and no indication that the car had been driven recently. Id. at 88. But Tulien was not parked at her own residence, and when a vehicle, even though parked, is located away from one's residence, we have found physical control because the intoxicated person will foreseeably proceed on his journey and attempt to drive home. See Martin v. Commissioner of Pub. Safety, 358 N.W.2d 734, 737 (Minn. App. 1984) (car located in front of house, not his own, and defendant could at any time begin to drive).

In the second case, Snyder v. Commissioner of Pub. Safety, 496 N.W.2d 858 (Minn. App. 1993), we held that Snyder was not in physical control of his vehicle because he had given the keys to another passenger to drive home. Id. at 860. The physical control requirement is not intended to cover situations in which an intoxicated person has relinquished control of the vehicle. Id. But the record does not show that Tulien relinquished control of her car. There were no other passengers in her car, she had entered the car with her keys, and she testified that she was going back to the car after she saw the police.

Tulien's final argument is that she did not intend to reenter her vehicle and drive home. But "[a]n unlawful intention or state of mind is not an element of a D.W.I. charge." State v. Duemke, 352 N.W.2d 427, 430 (Minn. App. 1984) (affirming revocation when defendant argued that evidence showing that he was asleep precluded a finding on the occurrence of a conscious offense). This court has found physical control in numerous cases without a finding of intent to drive the vehicle. See, e.g., Vivier v. Commissioner of Pub. Safety, 406 N.W.2d 587, 590 (Minn. App. 1988) (finding physical control when driver alleged he was merely passing time waiting for a friend). The district court properly based its decision on the objective facts and circumstances, and the facts and reasonable inferences are sufficient to support its conclusion that Tulien was in physical control while under the influence of alcohol.

Affirmed.