This opinion will be unpublished and

may not be cited except as provided by

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




State of Minnesota,



Donald J. Schussler,


Filed July 6, 1999


Kalitowski, Judge

Scott County District Court

File No. 9812643

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

Thomas J. Harbinson, Scott County Attorney, Michael J. Groh, Angela Helseth, Assistant County Attorneys, Government Center JC340, 200 Fourth Avenue West, Shakopee, MN 55379 (for appellant)

Michael W. McDonald, 16670 Franklin Trail SE, Suite #250, Prior Lake, MN 55732 (for respondent)

Considered and decided by Anderson, Presiding Judge, Kalitowski, Judge, and Schultz, Judge.[*]



Appellant State of Minnesota challenges the district court's order suppressing evidence and dismissing a charge of boating while under the influence against respondent Donald J. Schussler. Appellant asserts that the officer who stopped respondent had a specific and articulable suspicion that respondent was under the influence of alcohol when the officer began administering field sobriety tests. We agree and reverse.


An appellate court will reverse a pretrial order suppressing evidence only if the state demonstrates clearly and unequivocally that the district court erred and that such error will have a critical impact on the trial. State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992). The parties do not dispute the facts on appeal; therefore, this court's review is de novo. See id. (stating where facts are undisputed, and district court's decision was question of law, we review decision de novo).

Critical impact is demonstrated in this case because the district court dismissed the charge against respondent after suppressing all of the evidence. See State v. Holmes, 569 N.W.2d 181, 184 (Minn. 1997) (concluding critical impact element met where charge dismissed after suppression). Thus, this court need only determine whether the district court clearly and unequivocally erred in suppressing the evidence.

An officer does not need probable cause in order to conduct a preliminary breath test (PBT). State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986), review denied (Minn. May 16, 1986). But an officer must have a specific and articulable suspicion that a driver was driving under the influence of alcohol before the officer may request a PBT. Hager v. Commissioner of Pub. Safety, 382 N.W.2d 907, 911 (Minn. App. 1986).

A Scott County deputy sheriff stopped respondent for driving his pontoon boat after sunset without displaying proper lighting. While speaking with respondent, the deputy noticed that respondent's breath smelled of alcohol. The deputy asked respondent if he had been drinking. Respondent admitted to having two drinks and to having his last drink about ten minutes before the stop. The deputy then asked respondent to perform three field sobriety tests and to take a PBT. Respondent failed the field sobriety tests, and the PBT indicated that his alcohol concentration exceeded .10.

We addressed similar facts in Vievering, 383 N.W.2d at 729, where an officer stopped a vehicle with one working headlight that was traveling over the speed limit. Id. When the officer approached the vehicle, he noticed the driver and passenger smelled of alcohol and saw two open cans of beer on the front passenger side. Id. at 730. The driver agreed to the officer's request to take a PBT and failed the test. Id. The driver was arrested for driving under the influence and subsequently made a motion to suppress the evidence and dismiss the charge, arguing that the officer did not have a sufficient reason to request the PBT. Id. The district court agreed, suppressed the evidence, and dismissed the charge. Id. In reversing the district court we rejected the driver's argument that the facts indicated only that she had consumed alcohol and not that she was intoxicated and concluded that the speeding violation, the strong odor of alcohol, and the open beer cans formed a reasonable basis for the officer's belief that the driver was driving under the influence. Id.; cf. Heuton v. Commissioner of Pub. Safety, 541 N.W.2d 361, 363 (Minn. App. 1995) (concluding smell of alcohol on breath and involvement in serious accident established probable cause driver was under influence); Rude v. Commissioner of Pub. Safety, 347 N.W.2d 77, 80 (Minn. App. 1984) (determining smell of alcohol on breath, spilled glass smelling of alcohol in car, and involvement in serious accident established probable cause driver was under influence).

Here, the boating violation, the smell of alcohol, and respondent's admission that he had been drinking formed a specific and articulable basis for the deputy's suspicion that respondent was boating under the influence. This specific, articulable suspicion supported the deputy's decision to conduct field sobriety tests. Thus, we conclude the district court clearly erred in suppressing the evidence and dismissing the driving-while-under-the-influence charge against respondent.


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