STATE OF MINNESOTA
IN COURT OF APPEALS
Russell Adam Brandt, petitioner,
Commissioner of Public Safety,
Filed August 3, 1999
Mille Lacs County District Court
File No. CX-98-932
Mike Hatch, Attorney General, Ann M. Offermann, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for respondent)
Considered and decided by Anderson, Presiding Judge, Crippen, Judge, and Schultz, Judge.[*]
Appellant Russell Adam Brandt challenges the district court's conclusion that he was in "physical control" of a motor vehicle while sitting in the driver's seat of a moving golf cart. We affirm.
Appellant sought judicial review of the revocation order, asserting that he was not in "physical control" of the golf cart and that he was not actually operating the cart. At the hearing, the officer testified that he observed appellant's hands on the steering wheel while the golf cart was moving. Appellant called Shannon Hopkins, who testified that she was sitting in the middle of the golf cart and was driving the golf cart, which belonged to her roommate. Because the golf cart is small, she could reach over and operate the gas pedal with her left foot and the steering wheel with her left hand. Hopkins further testified that appellant did not drive the golf cart; she had told the officer that she was driving the cart, but admitted that there were other people around so he may have not heard her.
The commissioner of public safety called appellant to testify; he invoked his Fifth Amendment right not to testify.
The district court sustained the revocation of appellant's driver's license after concluding that appellant was in "physical control" of the vehicle. This appeal followed.
Appellant also appears to argue that there was no probable cause for the officer to believe that appellant had physical control of the golf cart. Appellant neither argued this issue at district court, nor did the district court consider such; therefore, we decline to decide the issue as it is not properly before us. See Thiele v Stich, 425 N.W.2d 580, 582 (Minn. 1988) (generally, appellate court will not consider matters not argued and considered in court below).
Finally, appellant contends that the district court erred by concluding that, even if appellant was not actually operating the golf cart, appellant had "physical control" of the golf cart.
The determination of whether appellant was in "physical control" becomes a question of law, which this court reviews de novo. See Snyder v. Commissioner of Pub. Safety, 496 N.W.2d 858, 860 (Minn. App. 1993) (relying on district court's factual findings to decide legal issue of whether appellant was in physical control of vehicle). The implied consent law applies to "[a]ny person who drives, operates, or is in physical control of a motor vehicle." Minn. Stat. § 169.123, subd. 2(a) (1998). A purpose behind the legislature's inclusion of the term "physical control" in the statute is to "`deter individuals who have been drinking * * * from getting into their vehicles, except as passengers.'" Shane v. Commissioner of Pub. Safety, 587 N.W.2d 639, 641 (Minn. 1998) (quoting State v. Juncewski, 308 N.W.2d 316, 320 (Minn. 1981)). While a passenger "`is someone who is merely along for the ride'" and whose "`[m]ere presence in or about the vehicle is not enough for physical control,'" determining whether the person had physical control involves reviewing the "`overall situation.'" Id. (quoting State v. Starfield, 481 N.W.2d 834, 837-38 (Minn. 1992)). A person is in "physical control of a vehicle if he has the means to initiate any movement of that vehicle and he is in close proximity to the operating controls of the vehicle." State v. Duemke, 352 N.W.2d 427, 432 (Minn. App. 1984) (concluding that this definition of physical control, provided in jury instructions, is within apparent scope of Minnesota's DWI statute).
Because appellant was sitting in the driver's seat and had his hands on the steering wheel while the golf cart was moving, appellant was not leaving the driving to Hopkins and was not a "passenger" who was "merely along for the ride." Rather, these facts support the conclusion that appellant had physical control of the cart because he had "the means to initiate any movement of the vehicle and he was in close proximity to the operating controls of the vehicle." See Duemke, 352 N.W.2d at 432 (providing definition of physical control for purposes of motor vehicle operation); see also Ives v. Commissioner of Pub. Safety, 375 N.W.2d 565, 567 (Minn. App. 1985) (concluding that a drunk passenger, who stepped on accelerator of vehicle while it was being operated, had physical control of vehicle).
[*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.