This opinion will be unpublished and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

C0-96-2281

Thomas Annibale Landucci, petitioner,

Appellant,

v.

Commissioner of Public Safety,

Respondent.

Filed May 20, 1997

Affirmed

Huspeni, Judge

Dakota County District Court

File No. C0-96-8798

Kai J. Lahti, 15025 Glazier Avenue, Suite 230, Apple Valley, MN 55124 (for Appellant)

Hubert H. Humphrey III, Attorney General, Joel A. Watne, Assistant Attorney General, 200 Capitol Office Bldg., 525 Park Street, St. Paul, MN 55103 (for Respondent)

Considered and decided by Schumacher, Presiding Judge, Parker, Judge, and Huspeni, Judge.

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

HUSPENI, Judge

Appellant challenges the denial of his petition for reinstatement of driving privileges, arguing that he did not violate the terms of the total abstinence requirement on his license, that the decision of the Commissioner of Public Safety to cancel was unreasonable, and that the district court's order affirming cancellation was clearly erroneous. Because we find the Commissioner's determination that appellant had consumed alcohol in violation of his total abstinence requirement was not unreasonable and because the decision of the district court is supported by substantial evidence and is not clearly erroneous, we affirm.

FACTS

At approximately 1:30 a.m. on July 12, 1996, appellant Thomas Annibale Landucci was stopped by an Apple Valley police officer who observed appellant's vehicle twice weave between the center divider and the curb. The officer determined that appellant's license was subject to a total abstinence restriction, observed that appellant's eyes were watery and bloodshot and that he had an odor of alcohol on his breath, and administered an Alco-Sensor test that resulted in a "warn" reading, indicating appellant had alcohol in his system. The officer reported that appellant admitted drinking alcohol; the officer then cited appellant for violating a limited license in violation of Minn. Stat. § 171.09 and allowed him to drive home.

This incident was reported to the Commissioner of Public Safety who, on the basis of the officer's report, cancelled appellant's driving privileges as "inimical to public safety" under Minn. Stat. §§ 171.14, 171.04, subd. 1(8). Appellant sought judicial review of the cancellation; a hearing was conducted before the district court.

At the hearing, several people testified that they were with appellant on the evening in question, that they observed him drinking non-alcoholic beer, and that he did not appear intoxicated. Appellant testified that he had been drinking only non-alcoholic beer and had taken two tablespoons of Vick's Formula 44 approximately four and a half hours before being stopped. Eldon Ukestad, a BCA forensic scientist, testified that consumption of non-alcoholic beer and Vick's Formula 44 would not produce the signs the officer reported seeing in appellant. The citing officer did not testify at trial but submitted an affidavit that reiterated his previous police report.[1]

The district court found that the officer had probable cause to believe that appellant was driving while under the influence of alcohol and in violation of appellant's total abstinence restriction and that appellant was lawfully placed under arrest for a violation of Minn. Stat. § 169.121,[2] and sustained the action of the Commissioner.

D E C I S I O N

Appellant asserts that the Commissioner of Public Safety did not have good cause to believe that appellant had violated his total abstinence restriction, arguing that drinking non-alcoholic beer does not constitute a basis for canceling a driver's license and that the district court's determination to uphold the cancellation was not supported by the record.

Commissioner-Sufficient Cause

The Commissioner of Public Safety has the authority to require total abstinence from alcohol as a continuing condition for retaining a driver's license. Askildson v. Commissioner of Pub. Safety, 403 N.W.2d 674, 676-77 (Minn. App. 1987), review denied (Minn. May 28, 1987). The Commissioner has the authority to cancel and deny a driver's license when there is sufficient cause[3] to believe the driver has consumed alcohol after completing rehabilitation. Minn. R. 7503.1300, subpt. 3 (1995).

Here, the police report indicated that appellant was stopped after his car was observed weaving across the road, that he had bloodshot and watery eyes, smelled of alcohol, and admitted drinking alcohol, and that he received a "warn" light when given a breath test. We conclude that the district court properly upheld the Commissioner's determination that there was "sufficient cause to believe" appellant had violated his total alcohol abstinence restriction and had authority to cancel appellant's license.

Evidence Presented at the District Court Hearing

There is a presumption of regularity and correctness when license matters are reviewed. Thorson v. Commissioner of Pub. Safety, 519 N.W.2d 490, 493 (Minn. App. 1994). A reviewing court will not reverse a license determination unless it finds that it is unsupported by substantial evidence or is arbitrary and capricious. Id. The Commissioner must present "some evidence" to show there was sufficient cause to believe a violation of the total abstinence clause had occurred. Plaster v. Commissioner of Pub. Safety, 490 N.W.2d 904, 906 (Minn. App. 1992). Appellant must show that the Commissioner acted unreasonably. Thorson, 519 N.W.2d at 493.

The district court heard appellant's testimony that he had taken two tablespoons of Vick's Formula 44 before leaving for the bar around 9:00 p.m., that he consumed 8-10 bottles of non-alcoholic beer over a four-hour period and left at approximately 1:00 a.m., that after leaving the bar he was stopped because the officer claimed he was swerving, that he believed he passed the field sobriety tests the officer administered, that he believed he passed the breath test the officer administered, that the officer appeared upset that appellant passed the breath test and required him to repeat the test two more times, that the officer stated the real reason he stopped appellant was because of a radar detector on appellant's dashboard, that if appellant's eyes were red and watery this was a result of working 12-hour days and feeling run down, that appellant's eyes are frequently watery, and that he did not admit to drinking alcohol but instead told the officer that he consumed Vick's Formula 44 and non-alcoholic beer and that the officer responded that both contained alcohol. The court also heard witnesses testify that although they did not observe appellant consuming alcohol, he could have consumed alcohol while not in their presence.

The district court also reviewed the citing officer's police report and his affidavit that included a statement that appellant at no time claimed that he had been consuming non-alcoholic beer or Vick's Formula 44, that the officer did not recall any signs of sniffles, coughing, a cold, or other respiratory problems, that the officer visually checked appellant's mouth before administering a breath test and determined there was nothing that would interfere with the test, and that the officer administered a screening test using an Alco-Sensor that had been calibrated on June 14, 1996, to read "fail" at alcohol concentrations of 0.11 or more. Attached to the officer's affidavit was a copy of the calibration and maintenance records of the machine used to test appellant, indicating regular monthly calibrations and maintenance from January 22, 1988, to September 17, 1996.

The district court also heard expert testimony indicating that even if appellant's claim of drinking only 8-10 non-alcoholic beers and two tablespoons of Vick's Formula 44 were considered, the claim was not credible.[4] The expert stated he assumed that the Alco-Sensor was working properly, that he does the maintenance on the Alco-Sensors, that he had no clear recollection of whether that particular instrument had been in for servicing, and that calibration records showing uninterrupted calibrations on the instrument would indicate that it was working properly.

There is substantial evidence to support the district court's determination to uphold the Commissioner's cancellation.[5]

Affirmed.

[ ]1Evidence may be presented by affidavit at the district court hearing. Minn. Stat. § 171.19 (1994).

[ ]2The district court's finding erroneously indicates that appellant was placed under arrest for a violation of Minn. Stat. § 169.121. Appellant was actually issued a citation for violating his license restriction and allowed to proceed.

[ ]3Minn. R. 7503.0100, subpt. 11 (1995):

"Sufficient cause to believe" means grounds put forth in good faith which are not arbitrary, irrational, unreasonable, or irrelevant and which make the proposition asserted more likely than not, provided the grounds are based on at least one of the following sources:

A. written information from an identified person;

B. facts or statements supplied by the applicant or driver;

C. driver license and accident records;

D. court documents and police records;

E. facts of which the commissioner or the commissioner's employees

have personal knowledge.

[ ]4The expert testified that if appellant had consumed two tablespoons of Vick's Formula 44 before 9:00 p.m., all the alcohol would have cleared appellant's system before the portable breath test was administered, that if the Alco-Sensor was calibrated to read "warn" at an alcohol concentration of .056, appellant would have needed to have all the alcohol from 20 bottles of non-alcoholic beer in his body at the time of the test to produce a "warn" reading, and that appellant would have to have consumed 41 bottles of non-alcoholic beer during his stay at the bar to achieve the "warn" reading.

[ ]5The district court's erroneous finding that appellant was placed under arrest for driving under the influence of alcohol is unnecessary to conclude that appellant violated the terms and conditions of his restricted license, in light of all the evidence presented.