Filed June 12, 2001

Affirmed

Amundson, Judge

Roseau County District Court

File No. K2-00-022

John M. Stuart, State Public Defender, Michael F. Cromett, Assistant State Public Defender, 2829 University Avenue Southeast, Suite 600, Minneapolis, MN 55414 (for appellant)

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55155; and

Michelle E. Moren, Roseau County Attorney, 606 Fifth Avenue Southwest, Room 10, Roseau, MN 56751 (for respondent)

Considered and decided by Amundson, Presiding Judge, Klaphake, Judge, and Willis, Judge.

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

AMUNDSON, Judge

This is an appeal from a conviction of driving while intoxicated (DWI). The district court held that a federal border patrol agent had the right, as a private citizen, to stop appellant's car based on an articulable suspicion that appellant was driving while intoxicated. We affirm.

F A C T S

At approximately 2:00 a.m. on October 30, 1999, Robert Tuttle, a U.S. Border Patrol agent, was driving on State Highway 11 near Badger in Roseau County when an oncoming vehicle flashed high beams at him from 30 yards away. That vehicle was later determined to have been driven by appellant, Scott Richard Larson. Tuttle noticed the oncoming vehicle swerve to the centerline, causing Tuttle to maneuver his vehicle near the shoulder to avoid possible contact. Tuttle turned his vehicle around and followed Larson. While following, Tuttle observed Larson’s vehicle "weaving from the oncoming lane to the shoulder of the road." "Due to the driver's erratic behavior," Tuttle turned on his overhead lights and stopped Larson’s vehicle.

While asking Larson about why he had flashed his lights, Tuttle noted a strong smell of alcohol on Larson. Tuttle then contacted the border patrol’s dispatch office, which contacted the local sheriff’s department, and Trooper Nick Robertson was sent to the location where Tuttle had stopped Larson.

While being questioned by Robertson, Larson admitted to drinking about six beers that evening. Robertson also noticed a strong smell of alcohol coming from Larson's vehicle. At Robertson’s request, Larson consented to performing several field sobriety tests, during the course of which he made several mistakes. He also performed a preliminary breath test that revealed a blood alcohol content above the legal limit of .10. Following the field testing, Robertson arrested Larson for driving while intoxicated and drove him to the Roseau County Sheriff’s Department where a breath test on an Intoxilyzer 5000 revealed a blood alcohol content of .20.

Larson was charged with a gross misdemeanor DWI, in violation of Minn. Stat. § 169.121, subd. 1(f) (1998), and an aggravated DWI, in violation of Minn. Stat. § 169.129 (1998). After Larson's motion to suppress was denied, Larson agreed to try the matter before a judge pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn. 1980). At trial, he was found guilty of both counts and sentenced. This appeal followed.

D E C I S I O N

In search and seizure cases where the facts are not significantly disputed, we analyze the evidence to determine if, as a matter of law, the officers were justified in doing what they did. State v. Storvick, 428 N.W.2d 55, 58 n.1 (Minn. 1988). Findings of fact are reviewed for clear error. State, Lake Minnetonka Conservation Dist. v. Horner, 617 N.W.2d 789, 795 (Minn. 2000).

Larson alleges that because Tuttle was not a licensed peace officer in the State of Minnesota, he did not have the authority to stop Larson and that therefore the motion to suppress should be reversed, the evidence suppressed, and the conviction and sentence vacated. The parties agree that Larson was not a licensed Minnesota peace officer pursuant to Minn. Stat. § 626.84, subd. 1(c) (2000).

Minnesota law provides that a private person may make an arrest. Minn.Stat. § 629.30, subd. 2(4) (2000). When a person with some law enforcement authority is not a peace officer under Minnesota law, that person's actions are considered as equivalent to those of private citizens. Horner, 617 N.W.2d at 794. A private person may arrest another for a public offense committed or attempted in the arresting person's presence. Minn. Stat. § 629.37 (2000). "Public offenses" for which a private person can effectuate a citizen's arrest include misdemeanors. Horner, 617 N.W.2d at 794.

The district court concluded that Tuttle had a right as a private citizen to make an arrest for a public offense committed in his presence. Tuttle observed Larson flash his high beams while his vehicle approached Tuttle’s and was 30 yards away; swerving towards the center line as he passed Tuttle’s vehicle, forcing Tuttle to drive onto the shoulder; and weaving from the oncoming lane to the shoulder of the road. These actions constituted a misdemeanor offense of careless driving.

The careless driving statute provides that:

Any person who operates or halts any vehicle upon any street or highway carelessly or heedlessly in disregard of the rights of others, or in a manner that endangers or is likely to endanger any property or any person, including the driver or passengers of the vehicle, is guilty of a misdemeanor.

Minn. Stat. § 169.13, subd. 2 (2000). Driving on the shoulder, forcing another driver toward the side of the road, and flashing headlights at another driver at night may consitute careless driving. See State v. Dille, 258 N.W.2d 565, 570 (Minn. 1977) (holding that evidence of speeding and driving onto shoulder of road supported jury verdict of careless driving); State v. Battleson, 567 N.W.2d 69, 71 (Minn. App. 1997) (holding that a driver operating vehicle without headlights and partly off the roadway justified stop for careless driving). Because Tuttle observed Larson commit the offense of careless driving, he was justified in stopping Larson.

After the stop, Tuttle called his dispatch office to have a local peace officer sent to the scene and Robertson responded. When questioned by Robertson, Larson admitted to drinking at least six beers that evening. He failed several field sobriety tests that Robertson asked him to perform as well as a preliminary breath test. Following these tests and based on his observations, Robertson arrested Larson for driving while intoxicated. Probable cause for a DWI offense existed at that point and the arrest was proper.

Affirmed.