A06-185

Jon Wesley Nissen, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed December 12, 2006

Affirmed

Hudson, Judge

Dakota County District Court

File No. C6-05-015571

W. Harvey Skees, Gerald Miller & Associates, P.A., 2915 Wayzata Boulevard, Minneapolis, Minnesota 55408 (for appellant)

Mike Hatch, Attorney General, Joel A. Watne, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2131 (for respondent)

Considered and decided by Peterson, Presiding Judge; Klaphake, Judge; and Hudson, Judge.

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

HUDSON, Judge

Appellant Jon Wesley Nissen challenges the district court’s order denying his petition for reinstatement of his driver’s license. Appellant also argues that the district court erred by permitting cross-examination to exceed the scope of direct examination. Because the district court’s finding that appellant had consumed alcohol was not clearly erroneous, and because the district court did not abuse its discretion by permitting cross-examination into matters not directly inquired about on direct examination, we affirm.

FACTS

In October 2005, the Commissioner of Public Safety cancelled appellant’s driver’s license as inimical to public safety after a Farmington police officer informed the commissioner that he had reason to believe appellant had consumed alcohol in August 2005 in violation of the total-abstinence restriction placed on appellant’s driver’s license. Appellant petitioned the district court to have his license reinstated under Minn. Stat. § 171.19 (2005).

At the hearing, appellant testified that he was aware of the total-abstinence restriction and that he had not consumed alcohol since December 1989. On cross-examination, counsel for the commissioner asked appellant about his encounter with the police officer. Appellant objected, arguing that the question exceeded the scope of direct examination. The district court overruled the objection. Subsequently, appellant testified that the police officer had approached him and informed him that he suspected appellant had consumed alcohol in violation of the total-abstinence restriction placed on his driver’s license. Appellant testified that he declined both of the police officer’s offers to perform a breath test.

The police officer testified that he noticed appellant “staggering, swaying, [and] having great difficulty maintaining his balance” while appellant was crossing the street. The officer also testified that he noticed “a strong odor of alcohol emanating from [appellant’s] person.” The officer stated that he attempted to question appellant about where he was going, but appellant was not very attentive. The officer testified that he believed appellant had consumed alcohol and offered to administer a breath test to give appellant a chance to exonerate himself. Due to prior contact with appellant, the officer knew that appellant’s driver’s license was subject to a total-abstinence restriction.

Finding that appellant had consumed alcohol, the district court concluded appellant was not entitled to reinstatement of his driver’s license. This appeal follows.

D E C I S I O N

Appellant argues that the district court erred by finding that he consumed alcohol. Where the district court makes independent factual determinations and otherwise acts as a court of first impression when reviewing an agency decision, this court reviews the district court’s findings for clear error. In re Hutchinson, 440 N.W.2d 171, 175 (Minn. App. 1989), review denied (Minn. Aug. 9, 1989); see also Madison v. Comm’r of Pub. Safety, 585 N.W.2d 77, 82 (Minn. App. 1998) (stating that when the district court reviews the commissioner’s decision to cancel a petitioner’s driver’s license, the district court conducts a trial de novo), review denied (Minn. Dec. 15, 1998).

The Commissioner of Public Safety may impose restrictions on a driver’s license. Minn. Stat. § 171.09(a) (Supp. 2005). When the commissioner has sufficient cause to believe that an individual whose driver’s license is subject to a total-abstinence restriction has consumed alcohol, “[t]he commissioner shall cancel and deny the driver’s license.” Minn. R. 7503.1700, subp. 6 (2005); see also Minn. Stat. § 171.09(c) (Supp. 2005) (“Upon receiving satisfactory evidence of any violation of the restrictions on the license, the commissioner may suspend or revoke the license.”). The commissioner may also cancel the license of any person that it believes may be inimical to public safety. Minn. Stat. § 171.14 (2004) (“The commissioner may . . . cancel the driver’s license of any person who, at the time of the cancellation, would not have been entitled to a receive a license under the provisions of section 171.04.”); Minn. Stat. § 171.04, subd. 1(10) (2004) (stating that a driver’s license shall not be issued to an individual by whom operation of a motor vehicle the commissioner has good cause to believe would be inimical to public safety).

However, “[a]ny person whose driver’s license has been . . . canceled . . . by the commissioner . . . may file a petition for a hearing in the matter in the district court . . . and such court . . . shall . . . take testimony and examine into the facts . . . to determine whether the petitioner is entitled to a license or is subject to . . . cancellation . . . .” Minn. Stat. § 171.19 (2004). The petitioner has the burden of proving that he or she is entitled to license reinstatement. Madison, 585 N.W.2d at 82.

Here, the police officer testified as to the facts that formed the basis of his belief that appellant had consumed alcohol and the district court found the officer’s testimony credible. Appellant offered no evidence to refute the officer’s testimony. Because the evidence would permit a reasonable person to conclude that appellant had consumed alcohol, the district court’s finding that appellant consumed alcohol is not clearly erroneous.

Appellant also argues that the district court erred by permitting counsel for the commissioner to cross-examine appellant about matters that exceeded the scope of appellant’s direct examination.

Generally “[c]ross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.” Minn. R. Evid. 611(b). However, the court may, in its discretion, “permit inquiry into additional matters.” Id.

On direct examination, appellant testified that the last time he consumed alcohol was in December 1989. On cross-examination, counsel for the commissioner questioned appellant about his encounter with the police officer. This line of inquiry tests the credibility of appellant’s testimony about when he last consumed alcohol. We conclude that the district court did not abuse its discretion by permitting such inquiry.

Affirmed.