This opinion will be unpublished and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
C0-97-2369

Cicely Jakubik, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed August 25, 1998
Affirmed
Schultz, Judge*

Ramsey County District Court
File No. C7972154

Richard A. Sand, 168 Nina Street, St. Paul, MN 55102; and

Nicholas P. Slade, 2124 Dupont Avenue South, Minneapolis, MN 55405 (for appellant)

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

Considered and decided by Willis, Presiding Judge, Huspeni, Judge, and Schultz, Judge.

U N P U B L I S H E D   O P I N I O N

SCHULTZ, Judge

Appellant Cicely Jakubik's driver's license was revoked after she refused to submit to alcohol concentration testing. Jakubik brought a motion for new trial based upon newly discovered evidence. The trial court denied the motion and Jakubik appeals. We affirm.

FACTS

On February 1, 1997, Jakubik was arrested for driving while under the influence of alcohol. Jakubik refused to provide a breath sample, and her license was revoked pursuant to the implied consent law. Joseph Saboda, who was present at the time Jakubik was arrested, was served with a subpoena to testify at the license revocation hearing, but did not appear. At the revocation hearing, the parties agreed that the only issue before the court was whether probable cause for the arrest existed. The arresting officer testified: (1) Jakubik and Saboda were standing outside of their car on a bridge and were preparing to jumpstart their stalled car; (2) he informed them that jumpstarting the car on the bridge was unsafe and that he would push the car off the bridge; (3) Jakubik went into the driver's seat and Saboda went into the passenger's seat; (4) while he was giving them instructions, he noticed Jakubik and Saboda showed signs of intoxication; and (5) Jakubik stated she was driving at the time that the car stalled. The trial court sustained the license revocation. In the accompanying criminal charge against Jakubik, Saboda appeared and testified consistent with Jakubik's testimony in the revocation hearing. Jakubik then moved the revocation court for, in the alternative, JNOV, a new trial, or a reopening of testimony under Minn. R. Civ. P. 59.01(d).

D E C I S I O N

A new trial may be granted if there is "[m]aterial evidence newly discovered, which with reasonable diligence could not have been found and produced at the trial." Minn. R. Civ. P. 59.01(d). "The granting of a new trial rests almost entirely in the discretion of the trial court and will be reversed only for a clear abuse of discretion." 200 Levee Drive Ass'n v. County of Scott, 532 N.W.2d 574, 578 (Minn. 1995).

The inquiry of the appellate court is not whether a new trial might properly have been granted, but whether refusal involved violation of a clear legal right or manifest abuse of judicial discretion.

Bosshart v. Commissioner of Pub. Safety, 427 N.W.2d 720, 722 (Minn. App. 1988).

The granting of a new trial based on newly discovered evidence requires a showing that the evidence could not have been discovered through the exercise of due diligence before the trial; that at the time of trial the evidence was not within petitioner's or his counsel's knowledge; that the evidence is not impeaching, cumulative, or doubtful; and that it is likely to produce a different result.

Vikse v. Flaby, 316 N.W.2d 276, 284 (Minn. 1982).

Jakubik argues that Saboda's testimony constitutes newly discovered evidence and warrants a new trial. We disagree. The record demonstrates: (1) Saboda failed to appear at Jakubik's license revocation despite being served with a subpoena; (2) Jakubik argued Saboda's testimony would corroborate her version of the event, raise questions about the officer's testimony, and dispute whether Jakubik was driving; (3) Jakubik admits she knew the content of Saboda's testimony; (4) the sole issue at the revocation hearing was whether there was probable cause for the officer to arrest Jakubik; (5) the trial court concluded even if Saboda's testimony was considered, probable cause for Jakubik's arrest would still continue to exist; and (6) the same judge presided over the revocation hearing and the new trial motion. Under these circumstances, we cannot say that the trial court abused its discretion in denying Jakubik's motion. See Schweich v. Ziegler, Inc., 463 N.W.2d 722, 732 (Minn. 1990) (to warrant new trial, evidence must be "of the quality and caliber that it would likely produce a different result at trial"); Hertz v. Hertz, 304 Minn. 144, 146, 229 N.W.2d 42, 44 (1975) (new trial will not be granted if "the evidence is merely cumulative, unless the cumulative evidence makes it clear that a grave injustice has been done"); Wurdemann v. Hjelm, 257 Minn. 450, 466, 102 N.W.2d 811, 821 (1960) cert. denied, 364 U.S. 894, 81 S. Ct. 222 (1960) (concluding, in bench trial, judge in "peculiarly good position" to determine probable effect of newly discovered evidence on factual findings); see, e.g., Bosshart, 427 N.W.2d at 723 (upholding trial court's denial of new trial motion based on newly discovered evidence where witness's expected testimony disputed whether appellant was driving, attempted to weaken officer's version of events, and corroborated appellant's testimony).

Affirmed.

* Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, 10.