C2-99-1888

Gary Dale Gernbacher, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed June 6, 2000

Affirmed

Davies, Judge

Olmsted County District Court

File No. C599935

Daniel L. Gerdts, 401 Second Avenue South, Suite 840, Minneapolis, MN 55401 (for appellant)

Mike Hatch, Attorney General, Jeffrey F. Lebowski, Michael Pahl, Assistant Attorneys

General, 525 Park Street, Suite 500, St. Paul, MN 55103-2106 (for respondent)

Considered and decided by Harten, Presiding Judge, Davies, Judge, and Foley, Judge.^*

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

DAVIES, Judge

The district court sustained the revocation of appellant’s driving privileges. Appellant argues that the state trooper stopped his vehicle without articulable suspicion and that he was seized unlawfully. Appellant also argues that he was deprived of procedural due process by the implied consent statute’s prehearing discovery limitations and by respondent Commissioner of Public Safety’s failure to provide him with all relevant discovery. We affirm.

FACTS

On March 17, 1999, just before midnight, Minnesota State Patrol Trooper Eric Bormann observed appellant Gary Dale Gernbacher driving closely behind another car. Wanting to stop the first car, which was weaving and driving slower than the speed limit, Bormann pulled beside the two cars and signaled that he wanted to merge behind the first car. After the first car stopped, appellant pulled alongside Bormann and said he was accompanying the other car. Bormann told appellant to drive forward and wait on the shoulder, which he did.

During field sobriety tests of the other driver, appellant exited his car and approached Bormann. Bormann told appellant to return to his car. Bormann said he would talk to appellant in a few minutes, but at no time did Bormann tell appellant that he was required to stay.

After arresting the other driver for DWI, Bormann approached appellant and noticed that he had slurred speech. When asked, appellant said he had been drinking. Bormann administered the horizontal gaze nystagmus test and then left appellant in the hands of backup Trooper Scott Barstad. Barstad testified that he too smelled alcohol on appellant’s breath and observed glassy and bloodshot eyes. After administering field sobriety tests, Barstad arrested appellant for DWI.

Bormann wrote two reports in connection with these DWI arrests. His report on the arrest of the other driver included some incidental information about appellant. His second report was a supplemental report specifically about his interactions with appellant; he provided it to Barstad. Barstad wrote a single report, covering his arrest of appellant. The officers submitted the two arrest reports to the Attorney General’s Office, but neither trooper submitted Bormann’s supplemental report on appellant.

The district court concluded that appellant remained on the shoulder voluntarily and was not seized or stopped. The district court also concluded that appellant did not have standing to challenge the constitutionality of the implied consent statute. The district court sustained the revocation of appellant’s driver’s license and denied appellant’s motion for a new trial. This appeal follows.

D E C I S I O N

When facts are not in dispute, this court determines as a matter of law whether a police officer’s actions constitute a seizure and whether the officer had an adequate basis for the seizure. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999); Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985). Not all contact between an individual and a police officer involves a seizure. Harris, 590 N.W.2d at 98. On undisputed facts, this court determines whether a police officer’s actions would lead a reasonable person under the same circumstances to believe that he was not free to leave. State v. Hanson, 504 N.W.2d 219, 220 (Minn. 1993).

Appellant argues an illegal stop occurred when Bormann activated his emergency lights without articulable suspicion that appellant had committed any offense. He further argues that he was unlawfully seized because, under the circumstances, a reasonable person would have believed he was required to stop and would not have felt free to leave, especially without being explicitly instructed that he could do so. The district court concluded that Bormann did not stop appellant’s vehicle, but that appellant voluntarily stopped and remained at the scene for personal reasons. He was thereafter lawfully seized when Bormann subsequently determined he had articulable suspicion to give appellant a preliminary breath test.

Appellant argues that he was unlawfully seized because he did not feel free to leave after Bormann told him to wait in his car. But a reasonable person would have understood that he was free to clarify whether he could leave. Generally, examples of when a seizure occurs are when there is

the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer’s request might be compelled.

In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993). A seizure is also likely to occur if a police officer engages in some display of authority not normally expected between private citizens. See State v. Dezso, 512 N.W.2d 877, 880-81 (Minn. 1994) (multiple requests to see defendant’s wallet constituted show of police officer’s authority); State v. Day, 461 N.W.2d 404, 407 (Minn. App. 1990) (summoning by police officer requiring individual to approach squad car constitutes seizure), review denied (Minn. Dec. 20, 1990).

In this case, when appellant stopped, there was only one state trooper and he did not display his weapon or physically contact appellant. Appellant’s own actions triggered Bormann’s verbal response, which was then misinterpreted. The record supports the district court’s finding that appellant voluntarily remained at the scene. Because appellant remained voluntarily, there was no seizure. See State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980) (no seizure for police officer to walk up to driver sitting in an already stopped car).

In determining whether an officer unlawfully administered a preliminary breath test, this court must determine whether the officer had specific, articulable facts that formed a basis to believe that the person had been driving a motor vehicle while under the influence of alcohol. State, Dep’t of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981). “An officer need not possess probable cause to believe that a DWI violation has occurred in order to administer a preliminary breath test.” State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986), review denied (Minn. May 16, 1986).

Bormann testified that appellant had slurred speech and glassy eyes. Appellant also responded positively when asked if he had been drinking. Bormann established articulable suspicion that appellant had been driving a motor vehicle while under the influence of an intoxicating beverage, justifying the PBT request, based on the presence of the odor of alcohol and the signs of impairment. See id. (concluding that speeding, odor of alcohol, and beer cans justified PBT request); Hager v. Commissioner of Pub. Safety, 382 N.W.2d 907, 911 (Minn. App. 1986) (concluding that bloodshot eyes and odor of alcohol justified PBT request). Trooper Barstad, on his own observations, also established an articulable suspicion that appellant had been driving a motor vehicle while under the influence of an intoxicating beverage.

The preliminary and subsequent breath tests showed appellant to have an alcohol concentration greater than 0.10. Consequently, the district court did not err in sustaining the revocation of appellant’s license.

II.

Appellant moved for a new trial and argued that the implied consent statute is unconstitutional as applied to him because, by limiting prehearing discovery, it violated procedural due process. On appellate review of a motion for a new trial, we apply an abuse-of-discretion standard. Beniek v. Textron, Inc., 479 N.W.2d 719, 722 (Minn. App. 1992), review denied (Minn. Feb. 27, 1992). Because Minnesota statutes are presumed constitutional, we will declare a statute unconstitutional only when absolutely necessary. In re Haggerty, 448 N.W.2d 363, 364 (Minn. 1989).

Within the implied consent statute’s limits on prehearing discovery, appellant may obtain “any accompanying documentation submitted by the arresting officer * * * .” Minn. Stat. § 169.123, subd. 5c(d)(3) (1998). “The party challenging a statute has the burden of demonstrating beyond a reasonable doubt a violation of some provision of the Minnesota Constitution.” In re Haggerty, 448 N.W.2d at 364. A party challenging a statute, to have standing, must show direct and personal harm from the alleged denial of constitutional rights. Davis v. Commissioner of Pub. Safety, 509 N.W.2d 380, 391 (Minn. App. 1993), aff’d, 517 N.W.2d 901 (Minn. June 24, 1994).

Appellant argues he was harmed because, by oversight, the Commissioner of Public Safety did not give him access to Bormann’s supplemental report and because he was precluded by statute from any other forms of discovery.

Bormann and Barstad each submitted their arrest reports to the Attorney General’s Office, but not Bormann’s supplemental report. Appellant’s attorney found Bormann’s supplemental report on the morning of the hearing while reviewing the file of the other driver. He was, thus, able to cross-examine Bormann on the contents of the supplemental report and appellant could not present evidence of any direct harm. The district court did not err in sustaining the revocation of appellant’s license or abuse its discretion in denying appellant’s motion for a new trial.

Affirmed.

^* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.