This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. ß 480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C5-99-1075

Jan J. Sundgaard, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed December 21, 1999
Affirmed
Willis, Judge

Washington County District Court
File No. C299980

Mark E. Duea, Timothy R. Geck & Associates, 1310 East Highway 96, Suite 204, White Bear Lake, MN 55110 (for appellant)

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

Considered and decided by Shumaker, Presiding Judge, Davies, Judge, and Willis, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

Appellant Jan J. Sundgaard challenges the district courtís order sustaining the revocation of his driverís license, claiming that the commissionerís proof was insufficient and that the district court failed to make a finding that he was driving or in physical control of his motor vehicle while under the influence of alcohol. We affirm.

FACTS

On January 23, 1999, at approximately 1:30 a.m., appellant called 911 for assistance in getting his vehicle out of a ditch. Washington County Deputy Sheriff Soren Mahowald was dispatched to the scene. Deputy Mahowald testified that (1) appellant had bloodshot eyes and a strong odor of alcohol on his breath; (2) appellant told him that a snowmobiler gave appellant a ride to the pay phone and he called 911 because he did not want to freeze to death; (3) he and appellant found appellantís vehicle two to three miles down Highway 61; (4) appellant told Deputy Mahowald that he was not the driver and that he did not know who the driver was; (5) Deputy Mahowald observed only one set of footprints leading away from the vehicle and that the vehicle was filled with papers and miscellaneous items such that there was no room in the car for anyone other than the driver; and (6) the vehicle was registered to appellant, and appellant had the keys. Based on these observations, Deputy Mahowald brought appellant to the sheriffís office and read him the implied-consent advisory. Appellant gave a breath sample, which showed an alcohol concentration of .26.

Appellantís driverís license was revoked pursuant to the implied-consent law, and appellant requested a hearing under Minn. Stat. ß 169.123, subd. 5c (1998). At the hearing, appellant testified that (1) he met a friend at the White Bear Bar between 7:00 and 8:00 p.m., where he had three or four beers in an hour and a half; (2) he left the White Bear Bar and was driving to the Blacksmith Lounge when he got caught in a furrow of snow and landed in the ditch; (3) he locked his car and walked two blocks to the Blacksmith Lounge where he telephoned for family members to help him get his vehicle out of the ditch; (4) he was unable to reach anyone, so he proceeded to drink and socialize; (5) he had no intention of driving his car, and he did not know if it was operable; (6) after the bar closed, a snowmobiler gave him a ride to a towing company two to three miles away; (7) the towing company was closed, so he used a nearby pay telephone to dial 911 for assistance; and (8) he lied to Deputy Mahowald about not being the driver because he was "in a panic," and he did not want to be associated with the car because he was drunk. The district court sustained the revocation of appellantís driverís license, and this appeal follows.

D E C I S I O N

  1. Commissionerís Proof

Appellant argues that the commissioner failed to prove that he was in physical control of his motor vehicle while under the influence of alcohol. But appellant admitted that he drove his vehicle into the ditch, so the issue of physical control is moot. The remaining issue is whether the commissioner proved that appellant was under the influence of alcohol when he drove into the ditch.

To sustain the revocation of a driverís license, the commissioner must show that (1) the arresting officer had probable cause to believe that the driver was driving, operating, or in physical control of a motor vehicle while under the influence of alcohol; (2) the driver in fact drove, operated, or was in physical control of the motor vehicle; and (3) the driverís alcohol concentration was .10 or more at the time of testing. Minn. Stat. ß 169.123, subd. 6; Snyder v. Commissioner of Pub. Safety, 496 N.W.2d 858, 860 (Minn. App. 1993). The commissionerís burden is proof by a fair preponderance of the evidence. Winder v. Commissioner of Pub. Safety, 392 N.W.2d 21, 23 (Minn. App. 1986) (citation omitted), review denied (Minn. Oct. 22, 1986).

Appellant does not contest probable cause, but he claims that to prove he was in physical control of his vehicle while under the influence of alcohol, the commissioner had to present evidence that Deputy Mahowald found appellant in or around his vehicle. But, again, appellant admitted that he drove his vehicle into the ditch, and the commissioner proves that a driver was under the influence of alcohol by presenting evidence of intoxication at the time of testing. See Minn. Stat. ß 169.123, subd. 6(b)(8). The commissioner offered evidence that appellantís alcohol concentration was .26 at the time of testing.

Appellant raised the affirmative defense of post-driving consumption of alcohol. See Dutcher v. Commissioner of Pub. Safety, 406 N.W.2d 333, 336 (Minn. App. 1987). The district court rejected appellantís testimony, stating that appellant "seriously impaired his credibility by changing his story radically between his arrest and his hearing."

This court has applied the clearly erroneous standard to review the issue of post-driving consumption. Id. (holding district-court determination that respondent had consumed alcohol after accident and before contact with police officer not clearly erroneous). The district court concluded that if appellant had been at the Blacksmith Lounge for several hours, his testimony would have been easy to corroborate. Furthermore, appellant admitted that he had been drinking before he drove into the ditch, but he did not tell Deputy Mahowald anything about having been at the Blacksmith Lounge. Because appellant changed his story between his arrest and the hearing, the district court rejected his testimony and concluded that he failed to meet his burden of proof. We defer to the district courtís credibility determinations and find that the courtís rejection of appellantís testimony regarding post-driving consumption was not clearly erroneous. See Minn. R. Civ. P. 52.01.

We agree with the district court that the commissioner proved that (1) Deputy Mahowald had probable cause to believe that appellant was driving while under the influence of alcohol and (2) appellant was driving or in physical control of his vehicle while under the influence of alcohol. The commissioner provided ample evidence for the district court to sustain appellantís license revocation.

II. District Courtís Finding of Physical Control

Appellant also argues that the district court erred by failing to make a specific finding that appellant was in physical control of his motor vehicle while under the influence of alcohol. Absent a finding of driving, operating, or being in physical control, this court must remand to the district court to make that determination. See Whitman v. Commissioner of Pub. Safety, 416 N.W.2d 476, 477-78 (Minn. App. 1987) (remanding to district court to determine whether motorist actually drove, operated, or was in physical control of vehicle); see also Snyder, 496 N.W.2d at 860. The district court made the following finding on this issue:

There is sufficient evidence to support a finding that Deputy Mahowald had probable cause to believe that Petitioner was in physical control of the automobile when it went into the ditch and that he was under the influence of alcohol at the time of testing.

While the district court made a finding of probable cause and further found that appellant was under the influence of alcohol at the time of testing, it made no express finding that appellant was under the influence of alcohol when he was driving or in physical control of his vehicle. But the district court made factual findings that imply and are consistent with that conclusion. Appellant admitted to the district court that he drove his vehicle into the ditch, and the district court rejected appellantís defense of post-driving consumption as not credible. In its memorandum, the district court stated that no matter which version of appellantís story is believed, he admits that "1) he was driving the car at the time of the accident; and 2) he was drinking before driving." Because the district courtís position on the matter is clear from its factual findings, remand is not necessary to resolve the issue of driving or physical control. See Snyder, 496 N.W.2d at 860 (finding remand unnecessary where district court made factual findings needed to decide legal issue of actual physical control).

Affirmed.