This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

C9-98-2025

State of Minnesota,

Appellant,

vs.

David James Casler,

Respondent.

Filed April 20, 1999

Reversed and remanded

Willis, Judge

Olmsted County District Court

File No. K5981976

Mike Hatch, Attorney General, 1400 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101; and

Raymond F. Schmitz, Olmsted County Attorney, Kaarin Long, Assistant County Attorney, 151 Fourth Street SE, Rochester, MN 55904 (for appellant)

Terrence M. Walters, 18 Third Street SW, Suite 303, Rochester, MN 55902 (for respondent)

Considered and decided by Lansing, Presiding Judge, Schumacher, Judge, and Willis, Judge.

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

WILLIS, Judge

The state appeals from a pretrial order suppressing the results of respondent David James Casler's urinalysis and dismissing the charges of driving while intoxicated (DWI) for lack of probable cause. We reverse and remand.

FACTS

At approximately 11:14 p.m. on March 20, 1998, Olmsted County Sheriff's Deputy Paul Gilman observed a vehicle traveling 65 to 70 miles per hour in a 55 miles-per-hour zone. Deputy Gilman also noted that the vehicle crossed over the fog line three times in a mile.

After stopping the vehicle, Deputy Gilman asked the driver, respondent David Casler, for his driver's license. Casler stated that he did not have a driver's license, and, upon checking with Olmsted County Dispatch, Deputy Gilman learned that it had been canceled as inimical to public safety. While speaking with Casler, Deputy Gilman noticed a "moderately strong" odor of alcohol on Casler's breath. Casler admitted to drinking "a couple beers" but denied any drug use. Deputy Gilman then asked Casler to perform field-sobriety tests.

First, Deputy Gilman had Casler blow into a portable breath tester (PBT). The result was a yellow warning light, indicating a blood-alcohol content between .04 and .08. Next, Deputy Gilman conducted a horizontal-gaze nystagmus test, which Casler failed. Deputy Gilman also noted that Casler's eyes were watery and bloodshot and that Casler spoke slowly and quietly. Finally, Deputy Gilman administered a one-legged-stand test; Casler failed this test as well.

Based on his observations, including Casler's poor performance on the field-sobriety tests, Deputy Gilman arrested Casler. At the Adult Detention Center, Deputy Gilman read Casler the implied-consent advisory. The results of a urinalysis indicated a blood-alcohol content of .04 and showed the presence of methamphetamine. Casler was charged with one count of enhanced aggravated DWI and two counts of enhanced DWI under Minn. Stat. §§ 169.129, subd. 1, .121, subds. 1(b), (c), 3(d)(2) (1998).

Following an omnibus hearing on Casler's motion to suppress evidence obtained subsequent to his arrest, the district court concluded that Deputy Gilman did not have probable cause to believe Casler was driving under the influence and suppressed the results of the urinalysis. Prompted by Casler's oral request at the omnibus hearing, the court also dismissed the DWI charges for lack of probable cause, and the state appeals.

D E C I S I O N
I. Suppression of Evidence

The state may appeal to the court of appeals

in any case, from any pretrial order of the trial court except an order dismissing a complaint for lack of probable cause to believe the defendant has committed an offense.

Minn. R. Crim. P. 28.04, subd. 1(1). Generally, we reverse a pretrial suppression order only if the state demonstrates

clearly and unequivocally that the trial court has erred in its judgment and that, unless reversed, the error will have a critical impact on the outcome of the trial.

State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992) (citation omitted). But "where the facts are not in dispute and the trial court's decision is a question of law," this court may review the suppression de novo. Id. (citations omitted).

It is a crime to drive, operate, or be in physical control of a motor vehicle while under the influence of alcohol, a controlled substance, or any combination of the two. Minn. Stat. § 169.121, subd. 1(a)-(c) (1998). An officer may lawfully arrest a person for DWI when there is probable cause to believe a violation has occurred. Overline v. State, 406 N.W.2d 23, 26 (Minn. App. 1987). Any person lawfully arrested for DWI impliedly consents to a test of his or her blood, breath, or urine. Minn. Stat. § 169.123, subd. 2(a)(1) (1998).

At the omnibus hearing, Deputy Gilman testified to the "moderately strong" odor of alcohol on Casler's breath, the yellow warning light on the PBT, the failed horizontal-gaze nystagmus test, the failed one-legged-stand test, and Casler's admission that he had "a couple beers." Deputy Gilman then testified that, based on his observations and experience as a patrol officer, he believed that Casler was under the influence of alcohol and possibly narcotics.

Specifically, Deputy Gilman testified that Casler gave, in his opinion, a "weak blow" into the PBT, signifying an attempt to manipulate the test. Deputy Gilman also testified that Casler's eyes did not "smoothly pursue" a moving object, that his eyes showed "a definite nystagmus at maximum deviation," and that Casler "failed all six of the nystagmus tests." Additionally, Deputy Gilman explained that Casler failed the one-legged-stand test by putting his foot down after the count of five, admitting that "he could not do the test." On his second attempt, Casler ignored Deputy Gilman's instructions by keeping his foot too low to the ground and "quickly" counting to 30.

In examining the evidence, the district court first noted that a yellow warning light indicates a blood-alcohol content between .04 and .08. Second, the court stated that it did not consider one failure in two attempts at standing on one foot to be a basis to believe that Casler was under the influence. Next, the court analyzed the horizontal-gaze nystagmus test, reasoning the "test becomes quite problematic in light of the subsequent blood test finding [Casler's] blood alcohol content to be .04." The district court concluded that Deputy Gilman did not have probable cause to believe Casler was under the influence and suppressed the results of the urinalysis.

Probable cause to arrest a person for DWI exists when the facts and circumstances available at the time of arrest reasonably warrant a prudent and cautious officer to believe that an individual was driving while under the influence. State v. Olson, 342 N.W.2d 638, 640 (Minn. App. 1984). While the determination is based on the totality of the circumstances, there is no mechanical or numerical equation. State v. Driscoll, 427 N.W.2d 263, 265 (Minn. App. 1988). In addition, reviewing courts should pay great deference to an officer's determination of probable cause. Olson, 342 N.W.2d at 640-41.

Here, Deputy Gilman relied on his objective observations and his experience as a patrol officer in arresting Casler for DWI. Based on the totality of the circumstances, Deputy Gilman "had a substantial basis for concluding that probable cause existed at the time of invoking the implied consent law." Id. at 641 (providing duty of reviewing court) (citation omitted). Thus, the district court erred in suppressing the results of the urinalysis.

II. Dismissal for Lack of Probable Cause

The state also claims that the district court erred in dismissing the DWI charges for lack of probable cause. This court has interpreted Minn. R. Crim. P. 28.04, subd. 1, to allow an appeal where the dismissal "effectively prevented further prosecutions and made reissuing the complaints pointless." State v. Diedrich, 410 N.W.2d 20, 22 (Minn. App. 1987) (noting that test is whether state may reinstate case by other means) (citation omitted).

Here, after suppressing the results of the urinalysis, the district court concluded the DWI charges must be dismissed for lack of probable cause. Because the state cannot reinstate or successfully prosecute the case without the results of the urinalysis, the pretrial order dismissing the complaint for lack of probable cause is appealable. See id. (allowing appeal where dismissal based on errors of law). This court reviews such legal determinations de novo. State v. Marshall, 541 N.W.2d 330, 332 (Minn. App. 1995), review denied (Minn. Feb. 27, 1996).

Although Casler made no formal motion, we will treat this as an appeal by the state from a motion brought pursuant to Minn. R. Crim. P. 11.03 (permitting motion to dismiss for lack of probable cause). When deciding such a motion, the district court asks whether "the facts appearing in the record * * * would preclude the granting of a motion for a directed verdict of acquittal if proved at trial." Diedrich, 410 N.W.2d at 22 (citation omitted). Whether a motion for a directed verdict should be granted requires "the determination of whether, as a matter of law, the evidence is sufficient to present a fact question for the jury's consideration." Id. (citation omitted).

The district court dismissed the three counts against Casler because, without the results of the urinalysis, the state could not prove a violation of Minn. Stat. § 169.121, subd. 1 (providing elements of DWI). But because the district court erred in suppressing this evidence, there is a fact question for trial that would preclude the granting of a motion for a directed verdict of acquittal. The district court therefore erred in dismissing the DWI charges for lack of probable cause, and we reverse and remand this case for further proceedings consistent with this opinion.

Reversed and remanded.