may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (1996).
STATE OF MINNESOTA
IN COURT OF APPEALS
Larry Dean Resner, petitioner,
Commissioner of Public Safety,
Filed October 20, 1998
Hennepin County District Court
File No. 9714738
Steven J. Meshbesher, Sherri D. Hawley, Meshbesher & Associates, P.A., 225 Lumber Exchange Building, 10 South Fifth Street, Minneapolis, MN 55402 (for appellant)
Hubert H. Humphrey III, Attorney General, Peter R. Marker, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for respondent)
Considered and decided by Kalitowski, Presiding Judge, Amundson, Judge, and Willis, Judge.
Larry Dean Resner appeals from the district court's denial of his petition for reinstatement of his driver's license, which was cancelled and denied for violation of a total abstinence restriction. We affirm.
Minnesota State Trooper Paul Davis, also at the scene, noticed a moderate odor of alcohol on Resner's breath. After the field sobriety tests and the PBT were administered, Trooper Davis found three open beer cans under the driver's seat of Resner's vehicle and noted that one of the cans had beer in it.
Trooper Heyman then discovered that Resner's license was subject to a total abstinence restriction and cited Resner for violating his abstinence restriction, for speeding, and for having an open bottle in his vehicle. The incident was reported to the Commissioner of Public Safety, who ordered the cancellation and denial of Resner's driving privileges. Resner petitioned the district court for reinstatement.
At the reinstatement hearing, Resner testified that he consumed two nonalcoholic beers at a graduation party and that the beer cans in his car belonged to friends he met while leaving the party. Two of Resner's friends testified that they did not see Resner drink any alcoholic beverages at the party, but neither was in constant contact with him that day. Thomas Burr, a forensic scientist, testified that the PBT is unreliable, inaccurate, and can give false positive readings when certain conditions are present. The court found that there was no evidence of any condition that might have affected Resner's PBT results. The court also considered the affidavit of expert Eldon Ukestad, who stated that a person of Resner's approximate weight would have to drink at least 30 bottles of nonalcoholic beer to register a 0.06 PBT reading.
The district court concluded that (1) the odor of an alcoholic beverage on Resner's breath provided cause for Trooper Heyman to ask Resner to perform the field sobriety tests and the PBT, (2) Trooper Heyman's report gave the Commissioner good cause to believe that Resner had consumed alcohol since his abstinence date, and (3) the Commissioner acted reasonably in canceling and denying Resner's license.
The district court also made an independent determination that Resner drank an alcoholic beverage in violation of his total abstinence restriction when it found that:
[b]ased upon the field sobriety tests, the PBT results, and the opened cans of beer under Resner's seat, * * * Resner did in fact drink while under a total abstinence requirement prior to his encounter with Troopers Heyman and Davis on June 7, 1997.
This appeal followed.
Resner's attorney stated at oral argument that Resner does not challenge the legality of the stop or Trooper Heyman's authority to request field sobriety tests, but Resner argues that Trooper Heyman did not have an articulable suspicion that Resner was driving while intoxicated to justify administration of the PBT. An officer may request a PBT if he can point to specific, articulable facts that form a basis to believe that a person is or has been driving a motor vehicle while under the influence of alcohol. State, Dep't of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981). "An officer need not possess probable cause to believe that a DWI violation has occurred in order to administer a preliminary breath test." State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986), review denied (Minn. May 16, 1986).
Resner argues that this court should exclude the results of the field sobriety tests because Trooper Heyman did not testify that he requested the PBT as a result of Resner's performance on the field sobriety tests. Resner contends that the act of speeding and the presence of the odor of alcohol alone do not create an articulable suspicion sufficient to justify the PBT request.
"`Articulable suspicion' is an objective standard," and we determine its existence from the totality of the circumstances. Paulson v. Commissioner of Pub. Safety, 384 N.W.2d 244, 246 (Minn. App. 1986). Here, Trooper Heyman properly stopped Resner for speeding, and he then smelled the odor of alcohol on Resner's breath. This prompted Trooper Heyman's request that Resner perform field sobriety tests. Trooper Heyman requested the PBT after noting signs of impairment in Resner's performance of the field sobriety tests, and we can infer that Trooper Heyman's request was the result of Resner's performance of those tests. We will not disregard the field sobriety test results simply because Trooper Heyman failed to testify specifically that he requested the PBT because of Resner's performance on the field sobriety tests.
Resner's speeding, the presence of the odor of alcohol, and the signs of impairment noted in Resner's performance of field sobriety tests created an articulable suspicion that Resner was or had been driving a motor vehicle while under the influence of an intoxicating beverage, justifying the PBT request. See Vievering, 383 N.W.2d at 730 (concluding that speeding, odor of alcohol, and beer cans justified PBT request); Hager v. Commissioner of Pub. Safety, 382 N.W.2d 907, 911 (Minn. App. 1986) (concluding that bloodshot eyes and odor of alcohol justified PBT request).
Resner also contends that because the field sobriety and PBT test results were not legally obtained, the Commissioner lacked good cause to cancel and deny Resner's driving privileges. See Plaster v. Commissioner of Pub. Safety, 490 N.W.2d 904, 906 (Minn. App. 1992) (stating that "Commissioner must present some evidence to show he had `good cause' to believe appellant violated the total abstinence clause"). But, as we have concluded, the test results on which the Commissioner relied were properly obtained because Trooper Heyman had an articulable suspicion that Resner had been driving while intoxicated, which supported his requests that Resner perform the tests.
The district court did not err in denying the petition for reinstatement of Resner's driving privileges.