This opinion will be unpublished and

may not be cited except as provided by

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




Patrick John Shane, petitioner,



Commissioner of Public Safety,


Filed December 30, 1997


Schumacher, Judge

Nobles County District Court

File No. C397135

Charles L. Hawkins, 333 South Seventh Street, Suite 2890, Minneapolis, MN 55402 (for appellant)

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

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Forsberg,**

** Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 2. Judge.



Patrick John Shane appeals the district court's order sustaining the revocation of his driver's license. He argues that the district court, which concluded there was probable cause to believe he had been in physical control of the motor vehicle, erred because he was merely a passenger and did not cause the vehicle to move. We affirm.


On January 28, 1997, Officer Michael Simons stopped a vehicle and arrested the driver for driving while under the influence. Shane, who was a passenger in the vehicle, asked the officer if he could drive the "f------" vehicle home. The officer replied in the negative and ordered him to stay in the vehicle. The officer testified that he did not object to leaving the engine run because of the cold weather.

Simons and his back-up officer testified that they saw Shane lean over to the driver's side and heard the engine "rev up." Simons also testified he saw the vehicle emit exhaust. The back-up officer then observed indicia of intoxication and arrested Shane for DWI. Shane's driver's license was revoked pursuant to the implied consent law. The whole episode was videotaped by a video camera mounted on the police vehicle.


Shane does not challenge the district court's findings of fact, but contends that it erred as a matter of law. This court will reverse conclusions of law if it determines the district court erroneously construed and applied the law. Dehn v. Commissioner of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986).

An officer may require a person to take an implied consent test when the officer has probable cause to believe the person was driving, operating, or in physical control of a motor vehicle. Minn. Stat. § 169.123, subd. 2(a) (1996). The district court here found probable cause to believe Shane was in physical control of the vehicle. In addition to the officers' testimony, it relied on a videotape of the events and concluded the circumstantial evidence left no doubt that Shane had manipulated the throttle of the vehicle, causing the engine to accelerate.

Probable cause[1] exists when there are reasonable grounds to believe the suspect committed a wrongful act. Steinberg v. State, Dep't of Pub. Safety, 357 N.W.2d 413, 416 (Minn. App. 1984). The probable cause determination is objective. Costillo v. Commissioner of Pub. Safety, 416 N.W.2d 730, 733 (Minn. 1987). The totality of the circumstances must be considered. Eggersgluss v. Commissioner of Pub. Safety, 393 N.W.2d 183, 185 (Minn. 1986).

The intent of the implied consent law is to encourage drunken individuals to find a designated driver so that they will enter vehicles only as passengers. Hansen v. Commissioner of Pub. Safety, 478 N.W.2d 229, 231 (Minn. App. 1991). Generally, an intoxicated person who is a passenger in a vehicle is not in physical control of the vehicle. Snyder v. Commissioner of Pub. Safety, 496 N.W.2d 858, 860 (Minn. App. 1993). In certain circumstances, however, passengers may assume physical control of a vehicle. Ives v. Commissioner of Pub. Safety, 375 N.W.2d 565, 566-67 (Minn. App. 1985) (passenger in physical control because he reached over and stepped on accelerator, causing vehicle to accelerate quickly from a stop sign).

A drunk passenger who interferes with the safe operation of a motor vehicle by actively tampering with its controls poses no less of a hazard to the public safety than any other drunk driver.

Id. at 567.

Shane distinguishes Ives because he did not cause the vehicle to move. He contends that his conduct did not contravene the purpose of the statute and that he merely followed the directions of the police officers to remain in the vehicle.

The officers, however, did not authorize Shane to manipulate the vehicle's controls. While Shane may not have caused the vehicle to move, according to the district court's undisputed findings, he caused the vehicle's engine to accelerate. One who actively operates the vehicle's controls can pose a threat to the public safety. Id. Here, the back-up officer testified that he avoided walking between Shane's vehicle and the squad car for fear of being crushed. The district court properly concluded that the officers had probable cause to believe Shane was in physical control of a motor vehicle.


[1] Because Shane refused testing, he may raise only the issue of probable cause to believe he was in physical control of the vehicle, not actual physical control. Flamang v. Commissioner of Pub. Safety, 516 N.W.2d 577, 580 (Minn. App. 1994), review denied (Minn. July 27, 1994).