This opinion will be unpublished and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

C4-96-2462

David John Kirchberg, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed June 17, 1997

Affirmed

Klaphake, Judge

Dakota County District Court

File No. C5-96-9381

Daniel C. Guerrero, Meshbesher & Spence, Ltd., 1616 Park Avenue South, Minneapolis, MN 55404 (for Appellant)

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

Considered and decided by Lansing, Presiding Judge, Short, Judge, and Klaphake, Judge.

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

KLAPHAKE, Judge

David John Kirchberg appeals the trial court's determination that he was in actual "physical control" of his vehicle. Because the trial court did not err in its determination, we affirm revocation of appellant's driving privileges.

D E C I S I O N

Findings of the trial court in its review of a license revocation under Minn. Stat. § 169.123 (1996), will be upheld on appeal if not clearly erroneous. State v. Kvam, 336 N.W.2d 525, 529 (Minn. 1983). Conclusions of law will be overturned when there is a showing that the trial court has erroneously construed and applied the law. Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).

This appeal challenges both findings and conclusions. First, Kirchberg argues that the trial court erroneously found that the key in his possession at the time of arrest was the ignition key for his vehicle. Second, Kirchberg argues that the absence of the ignition key precludes the conclusion that he was "in physical control" of a motor vehicle under Minn. Stat. § 169.123, subd. 2 (1996).

The finding that the key in appellant's possession at the time of the arrest was the ignition key was not based on direct evidence. Here, the trial court believed appellant's pre-arrest explanation that he had driven to the location of his arrest and had consumed five beers. The court did not believe appellant and his siblings' trial testimony that the ignition key was actually in his brother's vehicle at a different location. Circumstantial evidence may establish physical control under the implied consent statute. See State v. Pieschke, 295 N.W.2d 580, 589 (Minn. 1980). Because the circumstances support the trial court's findings regarding the key, this court must accept them. See Kvam, 336 N.W.2d at 529 (unless appellate court reaches firm conviction that trial court was mistaken, it should affirm trial court's finding).

The legal conclusion that appellant was in actual "physical control" of the vehicle is supported by the court's finding that he had the ignition key in his possession while sleeping in his vehicle. Physical control does not solely depend upon the location of the ignition key, but access to the ignition key supports the conclusion that appellant could have "set out on an inebriated journey at any moment, posing a risk to himself and others." LaBeau v. Commissioner of Pub. Safety, 412 N.W.2d 777, 780 (Minn. App. 1987).

Affirmed.