This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A04-1819

 

State of Minnesota,

Appellant,

 

vs.

 

Michael Curtis Danielson,

Respondent.

 

Filed April 12, 2005

Reversed and remanded

Gordon W. Shumaker, Judge

 

Olmsted County District Court

File No. K5-04-1700

 

 

 

Mike Hatch, Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134; and,

 

Terry L. Adkins, Rochester City Attorney, Peter D. Magnuson, Assistant City Attorney, 201 S.E. Fourth Street, Room 247, Rochester, MN 55904-3780 (for appellant)

 

Carl F. Anderson, Anderson Law Office, 1812 Second Street S.W., Suite B, Rochester, MN 55902 (for respondent)

 

 

            Considered and decided by Shumaker, Presiding Judge, Toussaint, Chief Judge; and Dietzen, Judge.

U N P U B L I S H E D   O P I N I O N

GORDON W. SHUMAKER, Judge

 

The state appeals from a pretrial order suppressing evidence and dismissing gross misdemeanor charges of third-degree driving while impaired and third-degree driving with an excess alcohol concentration, arguing that the district court clearly erred in ruling that the officer who stopped respondent’s vehicle; saw that respondent’s eyes were bloodshot; smelled an odor of alcohol; obtained respondent’s admission that he had been drinking; and administered field sobriety tests, some of which respondent failed, lacked articulable suspicion to require respondent to take a preliminary breath test.  The state also argues that the court erred in concluding the officer lacked probable cause to arrest respondent.  Because there was probable cause for arrest, we reverse and remand for further proceedings.

FACTS

Minnesota State Trooper Barstad has been a law enforcement officer for 18 years.   On May 2, 2004, at 2:39 a.m., he clocked respondent’s vehicle at 69 miles per hour in a 55-mile-per-hour zone.  He stopped the vehicle and identified the driver as respondent Michael Danielson.  The trooper detected an odor of alcohol coming from the vehicle and observed that respondent’s eyes were bloodshot.  The trooper asked respondent if he had consumed any alcoholic beverages and respondent stated that he had approximately four drinks at a wedding dance and that his last drink was approximately an hour and a half before he began to drive home.

After this brief conversation, the trooper asked respondent to get out of the vehicle so that he could take field sobriety tests.  The first test was the horizontal gaze nystagmus test (HGN test).  The HGN test involved the trooper watching respondent’s eyes as they moved to determine if there is any involuntary jerking.  The trooper asked respondent if he had any problems with his eyes.  The respondent indicated that he wore contact lenses but did not have any other trouble.  The trooper testified that he looked for six “clues” when administering the HGN test, including the lack of smooth pursuit, nystagmus at maximum deviation, and nystagmus prior to a 45-degree angle. The trooper observed each of these clues in both of respondent’s eyes for a total of six clues. 

            The second test the trooper administered was the “walk and turn test” in which there are eight clues, the existence of any two being considered failing.  The trooper observed two clues in respondent’s completion of this test.  The trooper testified that respondent completed an improper turn and failed to touch heel to toe on three of the steps.

            The third test the trooper administered was the “one leg stand” test.  In this test respondent was asked to stand with his arms out to the side, raise one leg off the ground six inches, and count by thousands.  Respondent had to be reminded to count by thousands but did not miss any of the “clues” the trooper looks for and therefore passed this test.

            Finally, the trooper asked respondent to complete a preliminary breath test (PBT).   The PBT produced a reading of .129, indicating a blood-alcohol content exceeding the legal limit.  The trooper then arrested respondent and transported him to the Olmsted County Adult Detention Center where a breath test was administered, producing a reading of .11 at 3:33 a.m.  Respondent was charged with the gross misdemeanors of third degree driving while impaired and third degree driving with an excess alcohol concentration.

            Respondent moved to dismiss the charges, arguing that there was not sufficient evidence for the trooper to request a preliminary breath test, and therefore no probable cause to request a breath test at the police department.  The district court heard this motion on August 11, 2004, and granted it on September 13, 2004.  The state appealed.

D E C I S I O N

If the state appeals pretrial suppression orders, it “must clearly and unequivocally show both that the trial court’s order will have a ‘critical impact’ on the state’s ability to prosecute the defendant successfully and that the order constituted error.”  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (citing State v. Zanter, 535 N.W.2d 624, 630 (Minn. 1995)).  “[T]he critical impact of the suppression must be first determined before deciding whether the suppression order was made in error.” Id.  And in the absence of critical impact we will not review a pretrial order.  In re Welfare of L.E.P., 594 N.W.2d 163, 168 (Minn. 1999).  In this case, the suppression of evidence led to a dismissal of the case, and thus the critical impact prong is met.  Additionally, respondent concedes that the district court’s suppression of evidence and resulting dismissal of the charges meet the “critical impact” prong of the test.  Therefore, the state must clearly and unequivocally show that the district court’s order constituted error. 

            “[W]hen reviewing a pre-trial order suppressing evidence where the facts are not in dispute and the trial court’s decision is a question of law, the reviewing court may independently review the facts and determine, as a matter of law, whether the evidence need be suppressed.”  State v. Othoudt, 482 N.W.2d 218, 221 (Minn. 1992).  Here, the facts are not in dispute. 

1.         Specific and articulable facts for PBT

            Appellant argues that the district court erred when it concluded that the trooper did not have the requisite specific, articulable facts to require the PBT.  A peace officer is authorized to require a PBT when the officer has reason to believe from the manner in which a person is operating a motor vehicle or from the person’s actions upon departure from a vehicle that the driver may be or has been driving while impaired.  Minn. Stat. § 169A.41, subd. 1 (2004).  An officer may request a PBT if he possesses specific and articulable facts that form a basis to believe that a person is or has been driving a motor vehicle while under the influence of an intoxicating beverage.  State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986), review denied (May 16,1986).  The officer does not need probable cause to administer a PBT.  Id. 

            In determining whether sufficient cause exists to require a driver to submit to a PBT, this court has stated that “[m]any telltale signs of intoxication exist independently or in combination with others.  All signs need not be exhibited in every case.”  Holtz v. Comm’r of Pub. Safety, 340 N.W.2d 363, 365 (Minn. App. 1983).  Additionally, great deference should be paid to the officer’s experience and judgment when reviewing an officer’s determination.  Vertina v. Comm’r of Pub. Safety, 356 N.W.2d 412, 414 (Minn. App. 1984).   However, we will not disturb a finding of fact reasonably sustained by the evidence, viewing that evidence in a light most favorable to the finding.  Martin v. Comm’r of Pub. Safety, 353 N.W.2d 202, 204 (Minn. App. 1984).

            In this case, the trooper initially stopped respondent for speeding.  After approaching the vehicle and having a short conversation with respondent, the trooper detected the odor of alcohol and observed that respondent’s eyes were bloodshot.  The trooper asked respondent if he had been drinking and respondent said he had consumed four drinks earlier that evening.  Additionally, the trooper completed three field sobriety tests outside of the vehicle with respondent, two of which respondent failed. 

Respondent argues that appellant has failed to clearly and unequivocally show that the district court erred and suggests a variety of explanations for the observations of the trooper.  For example, respondent argues that his bloodshot eyes were due to fatigue and that nystagmus can occur naturally in some people.  However, the existence of articulable suspicion is to be determined under the totality of the circumstances.  Paulson v. Comm’r of Pub. Safety, 384 N.W.2d 244, 246 (Minn. App. 1986).  Therefore, because the trooper recorded respondent speeding, smelled an odor of alcohol, observed respondent’s bloodshot eyes, had an admission of prior alcohol consumption, and performed preliminary tests, some of which respondent failed, the trooper had reasonable and articulable facts to ask respondent to perform a PBT.  The district court made no findings in support of its order suppressing the evidence.  But because we can independently review the facts and determine whether they are sufficient to support the district court’s determination, we conclude that the district court erred in determining that the trooper did not possess the requisite facts to administer a PBT. 

2.         Probable cause

            The district court determined that the trooper did not have specific and articulable facts to believe that respondent was impaired and administer a PBT.  The court then found that, without that evidence, the trooper did not have probable cause to arrest respondent for DWI.  Probable cause exists where the facts would lead a person of ordinary care and prudence to hold an honest and strong suspicion that the driver was under the influence.  State v. Hendricks, 586 N.W.2d 413, 414 (Minn. App. 1998), review denied (Minn. Feb. 18, 1999). A single, objective indication of intoxication may be sufficient to constitute probable cause, depending on the circumstances of the case. Martin, 353 N.W.2d at 204. 

The traffic violation, coupled with the indicia of the consumption of alcohol, respondent’s admission, and the test results strongly support the existence of probable cause for the arrest and the implied-consent proceedings.  The district court erred in determining the officer lacked probable cause.

            Reversed and remanded.