This opinion will be unpublished and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

C1-97-761

Kim Ward Jenkins, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed November 18, 1997

Affirmed

Kalitowski, Judge

Ramsey County District Court

File No. C9966471

Richard L. Swanson, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN 55318 (for appellant)

Hubert H. Humphrey III, Attorney General, Jeffrey F. Lebowski, Jeffrey S. Bilcik, Assistant Attorneys General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for respondent)

Considered and decided by Huspeni, Judge, Toussaint, Chief Judge, and Kalitowski, Judge.

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

KALITOWSKI, Judge

Appellant Kim Ward Jenkins challenges the revocation of his driver's license under the implied consent law, claiming the police officer did not have sufficient probable cause to arrest him for driving under the influence of a controlled substance. We affirm.

D E C I S I O N

Whether there is probable cause to request a chemical test under the implied consent law is a mixed question of law and fact; once the facts have been established, the law must then be applied to determine if there was probable cause. Flamang v. Commissioner of Pub. Safety, 516 N.W.2d 577, 580 (Minn. App. 1994), review denied (Minn. July 27, 1994).

An after-the-fact scrutiny should not take the form of a de novo review. Rather, the duty of the reviewing court is simply to ensure that the officer had a substantial basis for concluding that probable cause existed at the time of invoking the implied consent law.

State v. Olson, 342 N.W.2d 638, 641 (Minn. App. 1984) (citing Jones v. United States, 362 U.S. 257, 80 S. Ct. 725 (1960)). Reviewing courts should give "great deference" to an officer's probable cause determination. Id. at 640-41.

Probable cause for an arrest has been defined to be a "reasonable ground of suspicion supported by circumstances sufficiently strong in themselves to warrant a cautious man in believing the accused to be guilty."

State v. Sorenson, 270 Minn. 186, 196, 134 N.W.2d 115, 122-23 (1965) (citation omitted). "There is no rule of thumb to be employed in evaluating an officer's probable cause to proceed under the implied consent law." Martin v. Commissioner of Pub. Safety, 353 N.W.2d 202, 204 (Minn. App. 1984). The question is whether, given the circumstances, information, and the officer's observations and experience, the officer could reasonably have believed that the person to be arrested committed a crime. Sorenson, 270 Minn. at 196, 134 N.W.2d at 122.

In fact, an officer need only have one objective indication of intoxication to constitute reasonable and probable grounds to believe a person is under the influence.

Holtz v. Commissioner of Pub. Safety, 340 N.W.2d 363, 365 (Minn. App. 1983). Further, expert testimony is not required to establish probable cause that the driver was under the influence of a controlled substance. State v. Hegstrom, 543 N.W.2d 698, 702 (Minn. App. 1996), review denied (Minn. Apr. 16, 1996).

Appellant argues that the facts in this case do not provide sufficient evidence of probable cause for the officer to arrest appellant for driving while under the influence of a controlled substance and then to request a chemical test under the implied consent statute. We disagree.

Appellant cites State v. Klawitter, 518 N.W.2d 577 (Minn. 1994), for the proposition that there are "specific criteria" law enforcement must follow to establish probable cause that a driver may be under the influence of a controlled substance. He contends that under Klawitter, a 12-step drug recognition protocol must be conducted by a Drug Recognition Officer in order to establish the requisite probable cause. We disagree. The court in Klawitter answered a certified question regarding the admissibility of drug recognition protocol, but did not suggest the protocol is required for a probable cause determination. Id. at 578. Because the test in Klawitter was given after the arrest, the court did not address the issue of probable cause. Id. at 579. Here, the issue is not whether appellant was actually impaired on the night in question, but rather, if there was probable cause for the officer to arrest him and to request a chemical test.

Giving proper deference to the officer's probable cause determination, there was sufficient evidence to find probable cause that appellant was driving under the influence of a controlled substance. Appellant (1) hit one car almost head on, hit two parked cars, and almost hit a motorcyclist; (2) was speeding; (3) ran red lights; (4) left two accident scenes; (5) was incoherent and agitated, breathing rapidly and shallowly; (6) was combative with officers; (7) continually asked for water; and (8) had red eyes and nose and a flushed face. He refused any treatment at the hospital for these conditions. The arresting officer had ten years of experience as a police officer and specific experience arresting individuals for driving under the influence of a controlled substance. On these facts, the district court properly found that the officer had a substantial basis for finding probable cause to believe that appellant was driving while under the influence of a controlled substance, justifying the officer's request that he take a chemical test. Thus, under the implied consent law, appellant's license was properly revoked when he refused to take the requested test.

Affirmed.