STATE OF MINNESOTA

IN COURT OF APPEALS

C7-99-1160

David Alan Boman, petitioner,
Appellant

vs.

Commissioner of Public Safety,

Respondent.

Filed April 25, 2000

Affirmed

Crippen, Judge

Norman County District Court

File No. C49961

William Steven Kirschner, Kirschner Law Office, Suite 604 Black Building, Fargo, ND 58102 (for appellant)

Mike Hatch, Attorney General, Joel A. Watne, Assistant Attorney General, Suite 200, 525 Park Street, St. Paul, MN 55103-2106 (for respondent)

Considered and decided by Klaphake, Presiding Judge, Crippen, Judge, and Shumaker, Judge.

U N P U B L I S H E D O P I N I O N

CRIPPEN, Judge

Appellant driver challenges the trial court order sustaining respondent commissioner’s revocation of his driver’s license. Because appellant was in control of the vehicle he occupied, despite the fact that it could not move under its own power, we affirm.

FACTS

Early in the morning in early March 1999, a Norman County sheriff’s officer noticed two vehicles, a pickup truck towing a station wagon with a rope, traveling down a public road. The officer followed the vehicles until they stopped in the middle of the road. The officer saw appellant exit the driver’s side of the station wagon and walk towards the pickup, swaying as he walked. When confronted by the officer, appellant explained that the station wagon (which was not his car) had broken down, and he and the person driving the appellant’s pickup truck were towing it home.

The officer conducted field sobriety tests on the driver of the truck and then placed him under arrest for DWI. The officer then spoke again with appellant and also administered field sobriety tests on him. After observing appellant’s performance on various DWI tests, the officer believed that appellant was in control of the station wagon while intoxicated. Appellant apparently told the officer at the scene that he was not driving or in control of the station wagon, although he had been seated in the driver’s seat.

At the implied consent hearing, the officer testified that the station wagon’s motor was not running when he approached the vehicles, he did not attempt to start the station wagon, he did not ask whether the station wagon was capable of running and he did not ask why the parties were towing it. Appellant testified, and a mechanic testified for the appellant, that the car was not operable. Appellant testified that he sat in the driver’s seat of the station wagon but that he was only operating the brakes to prevent the two vehicles from colliding, and that he could not remember whether or not he had his hands on the steering wheel.

D E C I S I O N

Under the implied consent laws, in order to sustain the revocation of a person’s driver’s license, it is the commissioner’s burden to prove, by a preponderance of the evidence, both that “the person was driving, operating, or in physical control of the motor vehicle” and that the police officer had probable cause to believe this was so. Sens v. Commissioner of Pub. Safety, 399 N.W.2d 602, 604 (Minn. App. 1987) (citation omitted). This court has previously defined “physical control” to mean having the “means to initiate any movement of that vehicle” and being “in close proximity to the operating controls of the vehicle.” State v. Hendricks, 586 N.W.2d 413, 415 (Minn. App. 1998) (citation omitted), review denied (Minn. Feb. 18, 1999).

Appellant does not dispute probable cause, but rather contests the finding that he was in physical control of the vehicle, contending that the vehicle was inoperable. Notwithstanding the fact that it could not move on its own, the vehicle was moving; it was connected to the pickup truck by a rope, and appellant was in physical control of the brakes. The trial court also found that appellant was in control of the steering wheel. Appellant therefore had the ability to control the station wagon; he could control whether or not the car swung left or right or stopped.

On appeal, appellant adds the argument that the station wagon no longer constituted a motor vehicle, as it was inoperable. This contention was not brought to the attention of the trial court and cannot be reviewed unless we determine its importance in the interests of justice. See Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996). In this instance, the concept of an inoperable motor vehicle is not truly presented because the vehicle was in fact being moved and steered down a public roadway. Moreover, we are cognizant of the fact that the statute does not demand the operability of a vehicle in order for it to still be considered a “motor vehicle.” We are not empowered to “supply that which the legislature purposefully omits or inadvertently overlooks” when interpreting statutes. Green Giant Co. v. Commissioner of Revenue, 534 N.W.2d 710, 712 (Minn. 1995) (citation omitted).

Affirmed.