This opinion will be unpublished and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

A05-2188

A05-2474

 

Connie Phyllis Gustafson, petitioner,

Appellant (A05-2188),

 

Gregory Wayne Helland, petitioner,

Appellant (A05-2474),

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed September 5, 2006

Affirmed

Lansing, Judge

 

Wright County District Court

File No. C1-05-2295

Hennepin County District Court

File No. IC 485827

 

W. Harvey Skees, Gerald Miller & Associates, P.A., 2915 Wayzata Boulevard, Minneapolis, MN 55405 (for appellants)

 

Mike Hatch, Attorney General, Jeffrey F. Lebowski, Assistant Attorney General, Kyle R. Gustafson, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101(for respondent)

 

            Considered and decided by Willis, Presiding Judge; Lansing, Judge; and Forsberg, Judge.*

U N P U B L I S H E D   O P I N I O N

LANSING, Judge

            The district court, in separate proceedings, sustained the revocation of Connie Gustafson’s and Gregory Helland’s driving privileges for driving while impaired.  In these consolidated appeals, both challenge the admissibility of alcohol-concentration-test results that were obtained following the administration of a preliminary screening test that indicated an alcohol concentration greater than 0.08.  Because the police officer in each case administered the screening test according to the requirements of Minn. Stat. § 169A.41 (2004) and consistent with the United States and Minnesota Constitutions, we affirm. 

F A C T S

            These consolidated appeals raise a common legal issue but involve two unrelated driving sequences that resulted in separate revocations of Connie Gustafson’s and Gregory Helland’s driving privileges.

Gustafson

A police officer observed Gustafson’s oncoming vehicle on a highway in June 2005 with the high-beam headlights illuminated.  The officer flashed his headlights at Gustafson, signaling her to dim her lights.  Gustafson did not respond, and the officer again flashed his headlights.  Just before the two vehicles passed, Gustafson adjusted her lights.  The officer stopped Gustafson’s vehicle, approached the driver’s side, and knocked on the window.  Gustafson failed to lower her window, and he knocked again.  The officer observed that Gustafson had a blank look on her face and acted as if she were confused.  

The officer asked Gustafson for her driver’s license and proof of insurance.  She “fumbled around”forherpurse, retrieved her wallet, and, after a one-minute delay, removed her license from the wallet.  The officer detected the smell of an alcoholic beverage.  In response to his inquiry, Gustafson said that she drank a beer several hours earlier. 

With Gustafson still in her vehicle, the officer administered two field sobriety tests.  He first asked her to count backwards from sixty-eight to fifty-three; she instead counted from sixty-eight to fifty.  He then asked her to recite the alphabet from the letter E to the letter P, which she completed without error.

Because the officer suspected that Gustafson was impaired, he asked her to step out of her vehicle for further tests.  Gustafson grasped the vehicle’s door for balance while alighting from the vehicle.  After failing a horizontal-gaze-nystagmus test, Gustafson grabbed the officer’s shoulder, pleading with him to let her go.  The officer then administered a preliminary screening test, which indicated that her alcohol concentration was .187. 

The officer arrested Gustafson for driving while impaired (DWI).  Following her arrest Gustafson submitted to a chemical test, which indicated an alcohol concentration in excess of .10.  She sought judicial review of her license revocation and now appeals the district court order sustaining the revocation.

Helland

 

            A Minneapolis/St. Paul Airport police officer stopped Helland in July 2005 for exceeding the speed limit by driving seventy-four miles an hour in a fifty-five-mile-an-hour zone.  While speaking to Helland, the officer detected the strong odor of an alcoholic beverage.  Helland acknowledged that he had consumed alcohol and said that he drank a beer about thirty minutes earlier.  The officer also observed that Helland’s eyes were bloodshot and watery, and asked Helland to step out of his vehicle to perform field sobriety tests.

            Helland was unable to walk heel to toe on any step of a “walk-and-turn test,” started the test before he was instructed to begin, and had to rely on his arms for balance.  During a “one-leg stand” test, Helland swayed, hopped several times, again used his arms for balance, and had to put his foot down to maintain his balance.  An assisting officer administered a preliminary screening test, which indicated that his alcohol concentration was .126. 

The officers arrested Helland for DWI and administered the implied-consent procedure.  Helland submitted to a chemical test, which indicated an alcohol concentration of .11.  He sought judicial review of his license revocation and now appeals the district court order sustaining the revocation. 

D E C I S I O N

I

 

The common legal issue in Gustafson’s and Helland’s appeals derives from their interpretation of Minnesota law authorizing preliminary screening tests.  A police officer may administer a preliminary screening test that requires a driver to provide a breath sample if the officer “has reason to believe from the manner in which a person is driving, operating, controlling, or acting upon departure from a motor vehicle, or has driven, operated, or controlled a motor vehicle, that the driver may be violating or has violated” the statute prohibiting driving while impaired.  Minn. Stat. § 169A.41 (2004).  We review questions of statutory interpretation de novo.  Yoraway v. Comm’r of Pub. Safety, 669 N.W.2d 622, 625 (Minn. App. 2003).

            Gustafson and Helland argue that the plain meaning of the preliminary-screening-test statute precludes administration of a test unless an officer directly observes driving behavior that leads the officer to believe the driver is impaired.  According to this interpretation, an officer may not stop a driver for a traffic violation and then develop a reasonable, articulable suspicion that the driver has consumed alcohol and request a breath sample for a preliminary screening test. 

This narrow and segmented interpretation of the statutory language has previously been considered and rejected.  See State, Dep’t of Pub. Safety v. Juncewski, 308 N.W.2d 316, 320-21 (Minn. 1981) (interpreting identical language in earlier version of section 169A.41).  Section 169A.41 clearly contemplates use of a screening test based on present or past conduct, and past conduct includes conduct that the officer may or may not have directly witnessed.  Id. at 321.  Thus, an officer’s reasonable belief of impaired driving may be based on a combination of direct observations and inferences drawn from those observations.  Id.  “Any other construction would render the ‘is driving . . . or has driven’ language meaningless.”  Id. By using the past tense, the statutory language “can only refer to situations where the officer did not witness the actual [impaired] driving, but nevertheless had a specific and articulable suspicion” that the person was driving while impaired.  Id.

Additional terms in the statute indicate that an officer may rely on his personal observations of a driver following the stop to support the use of a screening test.  The officer’s reasonable belief of impaired driving may be based on the manner in which a driver is or has been driving, operating, or controlling a vehicle.  Minn. Stat. § 169A.41.  “Control” is broader than “drive” or “operate.”  State v. Starfield, 481 N.W.2d 834, 836 (Minn. 1992).  An impaired person who is in control of a stopped vehicle violates section 169A.20.  See Minn. Stat. § 169A.20, subd. 1 (2004) (prohibiting being in physical control of motor vehicle while impaired).  After a lawful traffic stop, an officer is therefore observing a person in control of a vehicle and may develop a reasonable belief that the driver is violating section 169A.20 that will support administration of a preliminary screening test. 

            The purpose of a preliminary screening test is to assist an officer in determining whether probable cause exists to believe a driver is impaired.  Marben v. State, Dep’t of Pub. Safety, 294 N.W.2d 697, 700 (Minn. 1980).  The police used the preliminary screening tests of Gustafson and Helland for this purpose.  Police officers lawfully stopped each vehicle after observing traffic violations.  See Minn. Stat. §§ 169.14, subd. 2(a) (stating that exceeding speed limit is unlawful), .61(b) (prohibiting driver from using light setting that projects glaring rays into eyes of oncoming driver) (2004); State v. George, 557 N.W.2d 575, 578 (Minn. 1997) (stating that violation of traffic law, however insignificant, provides objective basis for stopping vehicle).  Following each of the stops, the respective officers relied on specific and articulable facts to form a basis for their belief that the driver was or had been driving while impaired.  See Juncewski, 308 N.W.2d at 321 (requiring articulable suspicion that driver was impaired to administer preliminary screening test). 

The officers who stopped Helland initially observed him driving well beyond the speed limit.  When the officer approached Helland’s vehicle he detected a strong smell of alcohol, and Helland acknowledged that he had been drinking.  Helland also exhibited significant difficulty in performing the field sobriety tests.  The officers therefore had reason to believe Helland was impaired and had authority to obtain a breath sample from Helland.

            In Gustafson’s case, the officer testified that, when he approached her vehicle, the look on Gustafson’s face had been one that a training video suggested was “an indicator of something beyond what you stopped [the driver] for.”  Gustafson’s repeated delayed responses in dimming her lights, rolling down her window, and finding her purse and removing her license, raised his suspicions that she was impaired.  The officer testified that, in his experience, this was the longest time “that a driver of a vehicle has taken . . . to do all that stuff.”  He noted that Gustafson’s responses showed significant “mood swings,” and he smelled alcohol.  Gustafson was unable to comply with the officer’s counting request, used the vehicle door for balance when alighting, and failed the horizontal-gaze-nystagmus test.  Taken together, these facts support the district court’s determination that the officer had reason to believe that Gustafson had been driving, operating, or controlling her vehicle while impaired in violation of Minn. Stat. § 169A.20and therefore had authority to obtain a breath sample from Gustafson.

II

Gustafson also raises the alternative claim that the results of the preliminary screening test and the subsequent chemical test must be suppressed because they resulted from an improper arrest when the officer asked her to step out of her car.  We disagree.

An officer may conduct a limited investigatory stop of a driver if the officer has a “particularized and objective basis for suspecting the particular person stopped of criminal activity.”  United States v. Cortez, 449 U.S. 411, 417-18, 101 S. Ct. 690, 695 (1981); Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).  Asking a driver questions and conducting field sobriety tests during an ordinary traffic stop does not equate to a custodial arrest.  See Berkemer v. McCarty, 468 U.S. 420, 440, 104 S. Ct. 3138, 3150 (1984).  Instead, a reasonable, articulable basis that justifies an investigative stop also justifies a request or order to step out of the vehicle.  State v. Askerooth, 681 N.W.2d 353, 367 (Minn. 2004).  Each incremental intrusion after the stop or the exit from the vehicle must also have a reasonable basis.  See id. at 365-66

The officer who stopped Gustafson had an objective basis for initially stopping Gustafson’s vehicle.  See George, 557 N.W.2d at 578 (stating that observing traffic violation supports stopping vehicle).  After approaching the vehicle, the officer developed a reasonable, articulable suspicion that Gustafson was driving while impaired based on her demeanor, her behavior, and the smell of alcohol.  He investigated his suspicions by administering two sobriety tests, and he considered Gustafson’s performance on one of those tests to be a failure.  When the officer asked Gustafson to step out of her vehicle, he was continuing a limited investigation of his suspicions. 

            Although Gustafson argues that the length of the stop converted it into an arrest, the officer testified that “not more than five minutes” elapsed between the time he approached her vehicle and the time he asked her to exit it.  This limited detention does not amount to an arrest.  See State v. Wiegand, 645 N.W.2d 125, 135 (Minn. 2002) (stating that law enforcement may continue detention as long as reasonable suspicion for detention remains).  The record indicates that the only delay in the procedure resulted from Gustafson’s slow responses to the officer’s inquiries.  The actions of the police during the stop were reasonably related to and justified by the circumstances that gave rise to the stop and the expansion was based on a reasonable, articulable suspicion of impaired driving.  See id. (holding that expansion of scope of investigative stop is permissible if supported by reasonable, articulable suspicion of other illegal activity).

            Affirmed.