This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat § 480A.08, subd. 3 (1996)




Antonio Carlos Digidio, petitioner,



Commissioner of Public Safety,


Filed November 10, 1998


Lansing, Judge

Pine County District Court

File No. C7971350

Daniel C. Guerrero, Meshbesher & Spence, 1616 Park Avenue, Minneapolis, MN 55404 (for appellant)

Hubert H. Humphrey III, Attorney General, Steven H. Alpert, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for respondent)

Considered and decided by Lansing, Presiding Judge, Randall, Judge, and Short, Judge.



Antonio Digidio appeals the district court's order sustaining the revocation of his driver's license under Minn. Stat. § 169.123. Digidio disputes the adequacy of the grounds for the arresting officer's probable cause to believe he was driving. Because the record supports the probable cause determination, we affirm.


In responding to an accident report in Pine County on County Road 14, Chisago County deputy sheriff Mathew Turner found a major traffic collision between a pickup truck and a farm tractor pulling two gravity boxes of corn. From the vehicles' positions and damages, Turner concluded that the pickup had rear-ended the tractor, striking its gravity box. Turner found the appellant, Antonio Digidio, lying across the front seat of the pickup with a bump on his head. Digidio's son, Randy Hoppe, was lying on the road, bleeding from his head and rib cage.

Turner could not immediately determine who had been driving the pickup. He noticed that Digidio's speech was slurred, his eyes were watery and bloodshot, and his breath smelled of alcohol. Each time Turner asked Digidio who was driving, Digidio asked a question in return, never giving an answer. Just before leaving in the ambulance, Digidio told Turner that his other son, "Mark," was driving. Randy Hoppe responded to Turner's questions by saying he was not the driver and did not know who was driving. In the ambulance with his father en route to the hospital, Randy Hoppe told one of the ambulance personnel that he was the driver.

At the hospital, Deputy Robert Veitch, a 24-year veteran with the Pine County Sheriff's Department, read the implied consent advisory form to Hoppe and then Digidio. Deputy Veitch noted on the back of Hoppe's form that Hoppe stated he was not driving. When the advisory was read to Digidio, he did not deny that he was the driver. Digidio's blood test revealed a blood alcohol content above the legal limit. Veitch acknowledged that he was unsure who was driving when he administered Digidio's advisory. On the accident report, Deputy Turner identified Randy Hoppe as the driver. About two or three weeks later, Digidio called Turner and told him that he, not Hoppe, had been the driver. Turner revised the report to show Digidio as the driver.

The commissioner revoked Digidio's license, and, despite Digidio's admission, Digidio filed a petition for judicial review on issues relating to the advisory and the probable cause to believe he was driving. The district court sustained the revocation, finding that information available to both officers and the circumstantial evidence established probable cause to believe Digidio was the driver. Digidio now appeals.



To revoke a driver's license under Minn. Stat. § 169.123, the arresting officer must have probable cause to believe the person was "driving, operating, or in physical control" of a motor vehicle while under the influence of alcohol. Minn. Stat. § 169.123, subd. 2 (1996); see also Minn. Stat. § 169.123, subd. 6(b)(1) (Supp. 1997) (court may review probable cause determination). Digidio challenges the district court's application of law to the facts, but not the underlying facts. Thus, the issue on appeal is whether, as a matter of law, the facts provide an adequate basis for the district court's conclusion that the invoking officer had sufficient probable cause to believe Digidio was driving. See Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985); Snyder v. Commissioner of Pub. Safety, 496 N.W.2d 858, 860 (Minn. App. 1993).

"Probable cause exists when all the facts and circumstances would lead a cautious person to believe that the driver was under the influence." Davis v. Commissioner of Pub. Safety, 509 N.W.2d 380, 392 (Minn. App. 1993) (citation omitted), aff'd, 517 N.W.2d 901 (Minn. 1994). The district court evaluates probable cause "from the point of view of a prudent and cautious police officer at the time of the arrest." Johnson v. Commissioner of Pub. Safety, 394 N.W.2d 614, 616 (Minn. App. 1986). Whether probable cause exists is determined by an objective standard, not the officer's subjective belief. State v. Speak, 339 N.W.2d 741, 745 (Minn. 1983).

In sustaining Digidio's license revocation, the district court focused on two key facts. First, the truck was registered in Digidio's name. Second, when Deputy Turner arrived at the accident location, he found Digidio lying across the front seat. In addition, when asked who was driving, both Hoppe and Digidio were evasive and continually changed their stories. This evasiveness, coupled with the fact that Digidio owned the truck and was found lying across the front seat at the scene of the accident, supports the officer's probable-cause determination. See State v. Pieschke, 295 N.W.2d 580, 584-85 (Minn. 1980) (sustaining defendant's conviction for driving under influence when "jury had facts from which it could reasonably choose between the conflicting stories" of two passengers); Johnson, 394 N.W.2d at 616 (affirming district court's determination that arresting officer had probable cause to believe defendant was driving under influence based on circumstantial evidence that vehicle was registered to defendant, as well as his evasive conduct and answers to police questions); Hunt v. Commissioner of Pub. Safety, 356 N.W.2d 801, 803 (Minn. App. 1984) (affirming probable cause determination based on circumstantial evidence that vehicle was registered to defendant, police found him near the vehicle, and he denied knowing who owned the vehicle). The probable cause determination is further buttressed by the fact that on Hoppe's implied consent advisory Deputy Veitch noted that Hoppe said he was not driving, and Digidio did not deny being the driver when Deputy Veitch administered the advisory to him.