This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. §480A.08, subd. 3 (1998).


Gary William Loeffler, petitioner,


Commissioner of Public Safety,

Filed February 9, 1999
Reversed and remanded
Anderson, Judge
Kalitowski, Judge

Carver County District Court
File No. C1-98-000232

Harlan Goulett, Allan H. Caplan & Associates, P.A., 525 Lumber Exchange, Ten South Fifth Street, Minneapolis, MN 55402 (for appellant)

Michael A. Hatch, Attorney General, Joel A. Watne, Assistant Attorney General, 200 Capitol Office Building, 525 Park Street, St. Paul, MN 55103 (for respondent)

Considered and decided by Shumaker, Presiding Judge, Kalitowski, Judge, and Anderson, Judge.

U N P U B L I S H E D   O P I N I O N


Appellant challenges the district court's refusal to reinstate his driver's license under Minn. Stat. § 171.19 (Supp. 1997). Based on this record, the district court's use of the wrong standard of review was not harmless error, and, therefore, we reverse and remand.


In December 1997, the Commissioner of Public Safety reinstated appellant's Gary Loeffler's driver's license with the restriction that he abstain from consuming alcohol. During the investigation of a reported property damage incident on January 26, 1998, an officer interviewed appellant and determined that appellant had caused the damage. Although the officer determined that the cost of the damage was not enough to report, he later reported to the commissioner that appellant had consumed alcohol, in violation of the total abstinence restriction. The commissioner revoked appellant's license, and appellant filed a petition for reinstatement under Minn. Stat. § 171.19. After a hearing, the district court affirmed the revocation of appellant's license.

At appellant's hearing on the petition, his neighbor, Kevin Clark, testified that, on January 26, 1998, he discovered that his car had been pushed into a snowbank and went to appellant's apartment. Appellant's roommate, Chris Johnson, answered the door, and Clark asked Johnson who had pushed his car into the snow. Johnson, who reeked of alcohol, denied knowing anything about it. Clark yelled for appellant, asking, "Gary, what the hell happened to my car?" Appellant responded from his bedroom that he did not know what Clark was talking about. Clark told appellant that someone had pushed his car into the snowbank, and appellant responded, "Call the cops." Clark did not have any face-to-face contact with appellant at that time. Clark then assumed that, because Johnson was "seven sheets to the wind," appellant was drinking also. Clark called 911 to report the incident. When the officers came, Clark, who was angry, asked them if they could get appellant for DWI, and they responded, "no," because they had not seen him driving. Clark then left for dinner and when he came home he went back to appellant's house. Appellant answered the door, apologized for the bad prank, and offered to help push the car out. Appellant did not smell of alcohol, but looked like he was very sick, so Clark told appellant to stay inside and that he would get the car out himself.

Appellant testified that, prior to January 26, 1998, he had been in bed for a few days with pneumonia, a fact attested to by his physician. One of the observable signs of pneumonia is bloodshot and watery eyes. Appellant testified that he was perhaps a little bit unsteady, had hot flashes and cold sweats, and was on heavy doses of antibiotics. On January 26, appellant was in bed the entire day until he asked Johnson, who was drinking at the time, to go with him to the store for medications and food. He did not want to go alone because he was quite ill. They went to the drug store and grocery store, returning home around 6:45 p.m. When they arrived at home, Clark's vehicle was parked in the spot that appellant had been using for two and a half years. Appellant testified that he decided to play a prank on Clark, and with his car, pushed Clark's car forward so that it went into the snowbank a bit. Appellant unloaded his things and then put his car into the garage. When Clark came to their house, appellant was in his bedroom and did not come out because he was trying to get back to sleep. He asserts he had not been drinking. He told Clark to call the police and went back to sleep. An hour or so later, the officer arrived and appellant got dressed and came out of his bedroom. Appellant admitted his response and actions toward the officer were none too friendly. He first admitted to the officer that he caused the damage, then denied it, and then "blew the officer off" because he was irritated that Clark actually called the police and that he was awakened after finally getting back to sleep. The officer did not ask him to perform any sobriety tests or submit to a breath test. While he was talking to the officer, Johnson remained by the officers at the door. Under cross-examination, appellant admitted that he had no reason to believe that the officer had any motive to fabricate any portion of his report in the incident, other than because appellant was very rude to the officer.

The officer testified that, when he arrived at the scene, Clark stated that he thought appellant was intoxicated. The officer went to appellant's house and Johnson answered the door. Johnson appeared extremely intoxicated. After Johnson asked appellant to come out of his bedroom, appellant came out using some "quite profane words," and asked what the officer was doing there. He did not appear sick to the officer nor did he claim to be. He appeared rather intoxicated. At one point, the officer came within two feet of appellant and appellant "emitted a strong odor of the presence of an alcoholic - or alcohol." His eyes were bloodshot and watery. The officer's testimony was that appellant's speech seemed very clear as to how he pronounced his words, but yet slurred and dry. Appellant could stand, but he kind of rocked back and forth, kind of an imbalance. The officer stated that it was his professional opinion "that [appellant] was under the influence."

Respondent asked the officer if he had any conversation with Johnson as to what they had been up to. Appellant's counsel objected, as hearsay, and the court sustained the objection. Johnson was not at the hearing to testify.

The testimony from the officer in support of respondent was not a model of clarity. When respondent asked if the officer had any discussion with appellant regarding whether appellant had consumed alcohol, the officer stated that at some point he had asked, and he recalled appellant saying, that he had been out for a while with his roommate. The officer then admitted that appellant's response came, not after appellant had been asked if he was drinking, but rather after he had been asked if he was out driving that evening. Further, the officer testified that Johnson had not remained in the room when the officer spoke with appellant. Under cross-examination, he admitted that the odor of alcohol was coming from both Johnson and appellant. The district court affirmed the decision of the commissioner.


Appellant argues that the district court erred by applying the wrong standard of review to its determination, and that, because the case is a determination of credibility, that error could not have been harmless. Based on this record, we agree that the district court's use of the "arbitrary-and-capricious" standard of review was not harmless error.

This court recently held that a district court taking new evidence under section 171.19 must conduct a trial de novo rather than reviewing the commissioner's decision on an "arbitrary-and-capricious" standard. Madison v. Commissioner of Pub. Safety, 585 N.W.2d 77, 82 (Minn. App. 1998) (reversing and remanding because unclear from district court's findings whether it conducted trial de novo or merely found that Commissioner had "sufficient cause"), review denied (Minn. Dec. 15, 1998).

In the case at hand, the district court applied the arbitrary-and-capricious standard and affirmed the commissioner's revocation of appellant's driver's license. Appellant argues that the district court should have conducted a de novo review. We agree that the district court is required to conduct a trial de novo and independently determine whether appellant is entitled to a reinstatement under Minn. Stat. § 171.19 (Supp. 1997).

Appellant relies on Madison to argue that the error of employing the wrong standard of review cannot have been harmless because the entire result of the case turned on credibility. In Madison, this court reversed the district court's decision that affirmed the commissioner's revocation of Madison's license. Id. at 83. We recognized in Madison that the district court had not come to a conclusion whether the testimony provided at the hearing was credible and had not made an independent finding that Madison had consumed alcohol. Id. at 82-83. Therefore, it was unclear whether the district court conducted a trial de novo or merely found that the commissioner had "sufficient cause." Id. at 83.

In this case, the trial court made detailed findings of fact; however, most of the critical findings come from the officer's report and are either not supported by testimony or are contradicted by testimony at the hearing.

The district court notes the following in paragraphs 3 and 10:

3. On arrival, [the officer] met with the complainant, Kevin Clark, who advised that his car had been pushed into a snowbank; that tire tracks led to the [appellant's] garage; that he found the [appellant] at the [appellant's] residence and asked for assistance in pushing his vehicle out of the snowbank; that the [appellant] refused; and that [appellant] appeared intoxicated.

* * * *

10. Asked about the matter, Johnson confirmed that the [appellant] had been driving the car after they had been out drinking.

At trial, Clark testified that he never actually saw appellant until a couple of hours after the police arrived. Clark testified that he and appellant exchanged words while appellant remained in his bedroom and Clark was in the entryway of the apartment. There is no testimony from Clark as to the detailed findings in paragraph 3, which apparently came from the officer's report. The findings in paragraph 3 are not supported by the record and were, therefore, clearly erroneous.

The finding in paragraph 10 also apparently comes from an extra-record source. In his report, the officer stated, "I obtained information from Johnson. Johnson admitted that Loeffler was driving the vehicle, 170MCT, after been drinking." The report does not clarify whom Johnson identified as the drinking party and, at the hearing, the officer's testimony with regard to any conversations with Johnson was excluded on the basis of hearsay. There is no evidence in the record supporting the finding set forth in paragraph 10 and it, too, is therefore clearly erroneous.

The officer did testify as to his observations that appellant appeared intoxicated. However, because the district court relied on findings unsupported by evidence in the record, and because of the use of an improper standard of review of that evidence, we reverse and remand.

Appellant also argues that the burden of proof applied by the trial court was inconsistent with Minn. Stat. § 171.19 and violates his due process rights. Appellant argues that the burden of proof that should be employed is the ordinary "preponderance-of-the-evidence" standard. In Madison, this court emphasized that its "decision does not affect the driver's burden of proving entitlement to license reinstatement under Minn. Stat. § 171.19. 585 N.W.2d at 82 (citing McIntee v. State, Dep't of Pub. Safety, 279 N.W.2d 817, 821 (Minn. 1979)). In light of this court's holding in Madison, and because appellant failed to present his due process argument to the district court, we decline to address this issue further. See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (this court will generally not consider matters not argued and considered in the court below).

Reversed and remanded.

KALITOWSKI, Judge (dissenting)

I respectfully dissent. Because sufficient evidence supports the district court's conclusion that appellant failed to meet his burden of proving he is entitled to license reinstatement, I would affirm the district court.

This case is not controlled by Madison v. Commissioner of Pub. Safety, 585 N.W.2d 77 (Minn. App. 1998). The Madison court stated: "Most importantly, the district court did not make an independent finding that Madison consumed alcohol * * * ." Id. at 83. Here the district court stated:

The Court finds that Petitioner had consumed alcoholic beverages on January 26, in violation of the restrictions placed on his driving privileges by the Commissioner of Public Safety.

The court's finding is supported by the testimony of Deputy Koehler, which the court accepted by its finding that "[p]etitioner was loud, smelled strongly of alcohol, swayed as he stood, had bloodshot eyes and slurred speech and appeared intoxicated to Deputy Koehler."

Further, although there was conflicting testimony at the hearing, the district court specifically found that

[t]o the extent that the testimony of Petitioner and his witness conflicts with that of Deputy Koehler, the Court finds the testimony of Deputy Koehler to be the more plausible and persuasive.

In Madison, this court directed the district court on remand

to make specific findings of fact based on the testimony under oath and to come to a legal conclusion as to whether Madison is entitled to reinstatement * * *.

Id. Notwithstanding its reference to the "arbitrary and capricious" standard, that is exactly what the district court did here.