This opinion will be unpublished and

May not be cited except as provided by

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




Duane Roland Wacholz, petitioner,



Commissioner of Public Safety,


Filed August 3, 1999


Schultz, Judge[*]

Carver County District Court

File No. C3981358

Richard L. Swanson, 1059 Stoughton Avenue, P.O. Box 85, Chaska, MN 55318 (for appellant)

Mike Hatch, Attorney General, Peter Reed Marker, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for respondent)

Considered and decided by Toussaint, Chief Judge, Short, Judge and Schultz, Judge.

U N P U B L I S H E D   O P I N I O N


DWI offender appeals from the district court’s order sustaining the revocation of his driving privileges pursuant to Minn. Stat. § 169.123 (1998). Appellant seeks reversal on the grounds that the district court erroneously determined that (1) the stop was lawful; (2) there was probable cause to arrest appellant; and (3) his Fifth Amendment rights were not implicated. We affirm.


On July 27, 1998, at approximately 8:15 p.m., Patrol Sergeant Julie Boden was headed westbound in a marked squad car and stopped at a red light directly behind appellant Duane Roland Wachholz’s vehicle. When the light turned green, Wachholz’s vehicle pulled to the right, half straddling the right turn lane. Wachholz then reentered the westbound lane and continued forward. Shortly thereafter, Wachholz straddled the right turn lane two more times, and then continued westbound. No road or weather conditions would explain the driving conduct observed by Boden. Wachholz testified that he believed he saw emergency vehicle lights in his rearview mirror and accordingly moved to the right to allow Boden to pass. Boden stated that she did not turn on the emergency lights until the third time Wachholz straddled the lanes.

Based upon her observations of Wachholz’s driving conduct, Boden stopped the vehicle. Boden asked for Wachholz’s driver’s license and noted that his speech and actions were "deliberate," although she did not notice an odor of alcohol. Boden asked Wachholz twice if he had been drinking before Wachholz stated that he had. Boden requested that Wachholz provide a sample for the preliminary breath test. The test indicated an alcohol concentration of .10 or more. Subsequently, Boden asked Wachholz to step out of the car to perform other field sobriety tests. Wachholz was not able to perform the one-leg stand test because of leg problems, but he undertook and failed the alphabet, count, and walk-and-turn tests.

Based on Boden’s observations of Wachholz’s driving and failure to properly perform the field sobriety tests, she concluded that Wachholz was under the influence of alcohol and arrested him for DWI. At the implied consent hearing, the district court made specific findings of fact consistent with Boden’s testimony. The district court concluded that the stop was lawful and that the arrest was supported by sufficient probable cause. The district court further concluded that Wachholz’s Fifth Amendment rights were not violated. Wachholz appeals the district court’s order sustaining the revocation of driving privileges.


A district court’s finding is clearly erroneous if, upon review of the record, the appellate court "reaches the firm conviction that a mistake was made." State v. Kvam, 336 N.W.2d 525, 529 (Minn. 1983). Conclusions of law will only be overturned if the reviewing court determines "that the trial court has erroneously construed and applied the law to the facts of the case." Dehn v. Commissioner of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986).


Wachholz does not dispute the district court’s findings of fact but instead argues that it erroneously construed and applied the law to the facts. Wachholz first argues that the investigatory stop of his vehicle was unlawful.

A limited investigative stop is lawful if the officer is able to articulate at the judicial hearing that she had a "particularized and objective basis for suspecting the particular person stopped of criminal activity." Appelgate v. Commissioner of Pub. Safety, 402 N.W.2d 106, 108 (Minn. 1987) (quoting United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981)). The officer’s assessment is based on all the circumstances and "draws inferences and makes deductions * * * that might well elude an untrained person." Id. (quoting Cortez, 449 U.S. at 418, 101 S. Ct. at 695). These circumstances include the officer’s general knowledge and experience, the officer’s personal observations, the nature of the offense suspected, the time, the location, and anything else that is relevant. Appelgate, 402 N.W.2d at 108. There is no requirement that the officer actually see a violation of the law. Berge vs. Commissioner of Pub. Safety, 374 N.W.2d 730, 733 (Minn. 1985). It is well established that innocent activity may validly "justify the suspicion of criminal activity" for purposes of an investigatory stop. State v. Johnson, 444 N.W.2d 824, 826 (Minn. 1989).

In this case, Boden witnessed Wachholz pull to the right and straddle the right turn lane on three occasions. Even though an actual violation is not required for a valid stop, in the case at hand, Wachholz did indeed violate traffic laws. See Minn. Stat. § 169.18, subd. 7(a) (1998) (requiring vehicles to be driven as nearly as practicable entirely within a single lane). Police may lawfully stop a vehicle weaving within its lane of travel. See State v. Engholm, 290 N.W.2d 780, 784 (Minn. 1980) (concluding the stop based on vehicle weaving somewhat in its lane was lawful); State v. Ellanson, 293 Minn. 490, 490-91, 198 N.W.2d 136, 137 (1972) (holding that officer lawfully stopped vehicle weaving within its traffic lane). Unlike Engholm and Ellanson, who merely drifted within their lanes, Wachholz’s car weaved across the lane three times.

Wachholz argues that State v. Brechler, 412 N.W.2d 367 (Minn. App. 1987), controls and claims that Boden’s close proximity precipated Wachholz’s driving conduct. The police in the Brechler case turned around to follow the driver after observing a single swerve. Subsequently, the driver

slowed, signaled for more than one possible turn and then chose a closed gas station as a stopping place in response to the presence of the tailgating police.

Brechler, 412 N.W.2d at 368. In contrast, Wachholz drove erratically by straddling the right turn lane several times. Moreover, Boden did not turn to follow Wachholz; she simply was driving in the same direction. Wachholz’s driving conduct cannot be attributed to the proximity of Boden’s vehicle. We conclude that the district court did not err as a matter of law in determining that Boden had an adequate basis for the stop.


Wachholz next argues that the district court erred in finding that Boden had sufficient probable cause to require testing procedures under the implied consent law and to ultimately arrest Wachholz. He first asserts that the administration of the PBT prior to other field sobriety tests was improper. However, because Boden had specific and articulable facts to believe Wachholz was driving under the influence of alcohol, administration of the PBT was valid. State, Department of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1980).

Probable cause for a DWI arrest exists when the facts and circumstances available at the time of arrest reasonably leads 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). The reviewing court should generally defer to the district court’s evaluation of the officer’s testimony, as it is in a better position to observe and evaluate that testimony. Kunz v. Commissioner of Pub. Safety, 349 N.W.2d 593, 596 (Minn. App. 1984). The appellate court need only determine that the officer "had a substantial basis for concluding that probable cause existed at the time of invoking the implied consent law." Olson, 342 N.W.2d at 641 (citation omitted). "An officer needs only one objective indication of intoxication" to satisfy the probable cause requirement. Heuton v. Commissioner of Pub. Safety, 541 N.W.2d 361, 363 (Minn. App. 1995). Examples of objective indications of intoxication include the "manner of walking and standing, manner of speech, appearances of eyes and face, and odor, if any, upon such person’s breath." State v. Simonsen, 252 Minn. 315, 328, 89 N.W.2d 910, 918 (1958). The supreme court later expanded the permissible indicia of intoxication beyond the four mentioned in Simonsen and articulated that

[t]he preferable approach * * * is to recognize that there are numerous signs and that one can be intoxicated or under the influence without exhibiting all of the signs.

State v. Hicks, 301 Minn. 350, 354, 222 N.W.2d 345, 348 (1974).

Wachholz’s eratic driving, his deliberate movements and speech, and his admission to drinking recently, provided sufficient basis for Boden to conduct field sobriety tests.

Wachholz failed the PBT, alphabet, counting, and walk-and-turn tests. Giving due deference to the district court’s evaluation of Boden’s testimony, we conclude that Boden had a substantial basis for arresting Wachholz. Hence, the district court did not err in its holding that sufficient probable cause existed.


Wachholz further argues that his Fifth Amendment rights were violated because (1) he was not given the Miranda warning; and (2) the field sobriety results should have been excluded as the tests are testimonial in nature. A Miranda warning is necessary only "when an individual is taken into custody or otherwise deprived of his freedom by the authorities in any significant way and is subjected to questioning." Miranda v. Arizona, 384 U.S. 436, 478, 86 S. Ct. 1602, 1630 (1966). An officer may question a driver without issuing the Miranda warning during a roadside investigative stop because it is not custodial in nature. State v. Herem, 384 N.W.2d 880, 883 (Minn. 1986). Moreover, since the nature of an implied consent proceeding is civil, rather than criminal, no Fifth Amendment right attaches.

Wachholz’s admission to drinking was within the scope of a valid investigatory stop and did not amount to a custodial interrogation requiring a Miranda warning. State v. Johnson, 392 N.W.2d 685, 687-88 (Minn. App. 1986); Berkemer v. McCarty, 468 U.S. 420, 436-442, 104 S. Ct. 3138, 3148-52 (1984). His submission to the field sobriety tests took place pursuant to an investigative traffic stop and prior to formal arrest. In Minnesota, requesting sobriety tests, preliminary breath tests, or evidentiary blood alcohol tests, as provided for by the implied consent law, is not a custodial interrogation for Miranda purposes. State v. Kline, 351 N.W.2d 388, 390 (Minn. App. 1984) (citing Butler v. Commissioner of Pub. Safety, 348 N.W.2d 827, 829 (Minn. App. 1984). The district court did not err in determining that the Miranda warnings were not required.

Furthermore, the results of the field sobriety tests need not be suppressed. In State v. Breeden, this court considered the performance of field sobriety tests to be non-testimonial, and hence admissible. State v. Breeden, 374 N.W.2d 560, 563 (Minn. App. 1985) (remanding with instructions to admit portions of a videotape showing driver taking a balance test). Verbal statements that are both testimonial in nature and elicited during custodial interrogation should be suppressed. Pennsylvania v. Muniz, 496 U.S. 582, 590, 110 S. Ct. 2638, 2644 (1990). The information Wachholz seeks to suppress was elicited prior to arrest, therefore it falls outside the parameters of the Muniz decision. Furthermore, the Muniz court reversed the suppression of a videotape of sobriety tests, which included audio of the driver failing the count test and providing unprompted incriminating statements. Id. at 586, 603-04, 110 S. Ct. at 2642, 2651-52. In fact, the only statement the Supreme Court ordered suppressed was the response to a question regarding the date of the driver’s sixth birthday because it was not a spontaneous verbalization. Id. at 605, 110 S. Ct. at 2652. Nevertheless, the instant case does not fall within the scope of Muniz. Instead, we refer to Breeden and conclude that field sobriety tests are non-testimonial, and hence admissible. Wachholz’s Fifth Amendment right against self-incrimination was not violated. Because the circumstances provided Boden with a particularized and objective basis to stop Wachholz’s vehicle and sufficient probable cause to arrest Wachholz, we affirm the district court’s order sustaining the revocation of Wachholz’s driving privileges.


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