This opinion will be unpublished and

may not be cited except as provided by

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




Dale John Sherman, petitioner,



Commissioner of Public Safety,


Filed April 27, 1999


Huspeni, Judge[*]

Washington County District Court

File No. C3-98-4316

Mike Hatch, Attorney General, Max A. Keller, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for respondent)

Charles A. Ramsey, Ramsey Law Firm, Ltd., 2151 Hamline Avenue North, Suite 111, Roseville, MN 55113 (for appellant)

Considered and decided by Shumaker, Presiding Judge, Randall, Judge, and Huspeni, Judge.



Appellant challenges an order sustaining the revocation of his driver's license pursuant to Minn. Stat. § 169.123 (1998). We do not reach appellant's argument that failure of the police to satisfy the statutory requirements of Minn. Stat. § 169.123, subd. 2, requires that the results of the Intoxilyzer test be suppressed; appellant did not properly raise this issue in the district court. Appellant also argues that the revocation must be rescinded because the police lacked probable cause to believe he was driving while intoxicated; we conclude that probable cause existed and affirm.


At 2:00 a.m., Sunday, August 1, 1998, a police officer observed appellant Dale John Sherman driving a motorcycle at an excessive speed; radar clocked him at 34 m.p.h. in a 30 m.p.h. zone. As appellant passed the officer, he looked very sharply to his right and appeared startled. Appellant then stopped at a red light, and when it turned green, he drove through the intersection, proceeding straight despite being in a left-turn lane. The officer then began to follow him, attempting discreetly to close the distance between himself and appellant.

Appellant drove in a "zigzag," turning west, then north, then west again. He accelerated to 60 m.p.h., and the officer activated his emergency lights. While trying to catch him, the officer estimated appellant drove approximately 100 m.p.h. Appellant stopped his vehicle approximately 1.6 miles after the officer turned on his lights, dismounted, and raised his hands above his head, despite not having been told to do so.

The officer immediately arrested appellant for fleeing a police officer and placed him in his squad car. Appellant smelled of alcohol, his face was flushed, and he had bloodshot, watery eyes; he admitted he had been drinking Jim Beam and 7-Up. The officer gave appellant a Preliminary Breath Test (P.B.T.), which registered .08, and invoked the implied consent advisory. The officer subsequently administered an Intoxilyzer test, which registered .11.

On cross-examination, the officer testified that appellant may have had the aroma of alcohol after only one drink. He also testified that appellant's flushed face and bloodshot, watery eyes may have been caused by driving his motorcycle at more than 100 m.p.h.



Minn. Stat. § 169.123

Appellant argues that he should not have been compelled to submit to a chemical test because he did not meet the conditions of Minn. Stat. § 169.123, subd. 2 (1998). This issue is not properly before the court on appeal, however, because appellant did not raise it in the district court. We therefore do not address it. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996) (this court will not address matters not argued and decided in the court below).

2. Probable cause

To invoke the implied consent law, an officer must have "probable cause to believe the person was driving * * * in violation of section 169.121."[1] Minn. Stat. § 169.123, subd. 2(a). When we review probable cause based on given facts, the test is not whether the district court decision is clearly erroneous, but whether, as a matter of law, the basis for determining probable cause was adequate. Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).

In reviewing a probable cause determination, this court does not review the determination de novo; rather the court looks to see if the officer "had a substantial basis for concluding that probable cause existed at the time of invoking the implied consent law." An officer needs only one objective indication of intoxication to constitute probable cause to believe a person is under the influence.

Heuton v. Commissioner of Public Safety, 541 N.W.2d 361, 362 (Minn. App. 1995) (citations omitted). Probable cause is defined as whether the officer had a

"particularized and objective basis for suspecting the particular persons stopped of criminal activity." In applying this standard, the court should consider the totality of the circumstances and should remember that trained law-enforcement officers are permitted to make "inferences and deductions that might well elude an untrained person."

State v. Kvam, 336 N.W.2d 525, 528 (Minn. 1983) (citations omitted).

Appellant argues that the officer had probable cause to believe that appellant was driving after consuming alcohol, but did not have probable cause to believe that appellant was driving under the influence of alcohol. We disagree. Appellant committed a traffic violation and drove his motorcycle at speeds in excess of 100 m.p.h.; appeared suspicious when he saw the officer, see State v. Johnson, 444 N.W.2d 824, 825-27 (Minn. 1989) (suspicious conduct may be considered, at least in part); fled from the officer; and when stopped, smelled of alcohol, had bloodshot, watery eyes, and a flushed face and admitted that he had had an alcoholic drink. These are particularized and objective bases for suspecting the appellant of criminal activity; the officer had probable cause.[2] The officer's recognition on cross-examination that an odor of alcohol may be present after only one drink and that a flushed face and bloodshot, watery eyes might occur as a result of other causes does not serve to negate probable cause.

Appellant further argues that a finding of probable cause in this case would be contrary to public policy because it would set a precedent of punishing law-abiding drivers who are not under the influence yet happen to smell of alcohol. Because probable cause so clearly existed here, however, we find this argument has no merit.


[*] Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. Art. VI, § 10.

[1] Minn. Stat. § 169.121, subd. 1 (1998), provides that it is a crime to drive a motor vehicle while under the influence of alcohol.

[2] Appellant asserts that 10A Minnesota Practice, CRIMJIG 29.02 (1998), supports his argument that there was no probable cause, but cites no law supporting use of a jury instruction guide as precedent. As such, we do not consider it.