This opinion will be unpublished and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

A06-268

 

Karen Knute, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed December 5, 2006

Affirmed

Randall, Judge

 

Beltrami County District Court

File No. C8-05-1210

 

Richard L. Swanson, 207 Chestnut Street, Suite 235, P.O. Box 117, Chaska, MN  55318 (for appellant)

 

Mike Hatch, Attorney General, James E. Haase, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101 (for respondent)

            Considered and decided by Wright, Presiding Judge; Randall, Judge; and Halbrooks, Judge.

U N P U B L I S H E D   O P I N I O N

RANDALL, Judge

            On appeal from the district court’s decision to sustain the revocation of her driver’s license under the implied consent law, appellant argues that the request for a preliminary breath test was not objectively reasonable and violated the protection against unreasonable seizures.  We affirm.

FACTS

            On August 6, 2005, appellant Karen Knute was stopped after Bemidji Police Officer Willie Beise observed her vehicle swerve and cross the fog line a few times.  Officer Beise smelled an odor of alcohol and noticed that appellant’s eyes were bloodshot and watery.  Appellant admitted to having a couple of alcoholic beverages prior to driving that night.  Officer Beise administered the horizontal gaze nystagmus (HGN) test, which appellant failed.  Officer Beise then administered the preliminary breath test (PBT), which indicated an alcohol concentration in excess of the legal limit.  Appellant was subsequently arrested for driving while intoxicated, and her driving privileges were revoked pursuant to Minnesota law. 

            Appellant challenged the revocation, and a hearing was held on the matter.  At the hearing, Officer Beise testified that based on his ten years of experience in law enforcement, appellant exhibited sufficient indicia of intoxication to warrant the administration of the PBT.  The district court sustained the revocation, concluding that Officer Beise observed sufficient signs of impairment to warrant the administration of field sobriety tests, including a PBT.  This appeal followed. 

D E C I S I O N

            On review, a district court’s determination on the issue of whether reasonable basis existed to request a chemical test under the implied consent statute is a mixed question of law and fact.  Clow v. Comm’r of Pub. Safety, 362 N.W.2d 360, 362-63 (Minn. App. 1985), review denied (Minn. Apr. 26, 1985).  When an appellate court reviews a traffic stop based on given facts, the test is not whether the district court’s decision is clearly erroneous, but whether, as a matter of law, the basis for the stop was adequate.  Berge v. Comm’r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).

            After the facts are clarified, this court does not review probable cause determinations de novo; instead, we determine if the police officer “had a substantial basis for concluding that probable cause existed at the time of invoking the implied consent law.”  Groe v. Comm’r of Pub. Safety, 615 N.W.2d 837, 840 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000).  In making its determinations with regards to probable cause, a reviewing court must consider the totality of the circumstances.  Id.

            Minn. Stat. § 169A.41, subd. 1 (2004), provides that when a police officer “has reason to believe from the manner in which a person is driving, operating, or controlling, or acting upon departure from a motor vehicle . . . that the driver may be [impaired] . . . the officer may require the driver to provide a sample of the driver’s breath for a preliminary screening test . . . .”  The probable cause standard required for an officer to make an arrest is not required to administer a breathalyzer test.  Instead, Minnesota courts have consistently applied the lower test of specific and articulable basis sufficient to support officers’ request for a PBT.  See State v. Juncewski, 308 N.W.2d 316, 317 (Minn. 1981) (prior to requesting a PBT the officer had specific and articulable facts to form a basis of belief that driver was under the influence); see also Swapinski v. Comm’r of Pub. Safety, 368 N.W.2d 322, 323 (Minn. App. 1985) (motorist passed field sobriety tests but had balancing difficulties and was hence given a PBT), review denied (Minn. July 26, 1985).

            Appellant challenges the district court’s determinations by claiming that Officer Beise lacked the requisite reasonable basis for suspecting her of driving under the influence and for requesting a PBT.  Specifically, appellant claims that Officer Beise was acting out of his preconceived subjective belief that she was driving while impaired and that his belief should thus be disregarded as having no legal significance.  Appellant indicates that little or no weight should be given to Officer Beise’s testimony regarding the administration of the HGN test because the officer seemed unsure of its administration.

            We understand appellant’s argument that articulable suspicion to stop (low threshold) does not automatically equal articulable suspicion that you are drunk or “impaired,” which is the higher threshold law enforcement needs to reach before offering a motorist a PBT.  But here, the claimed swerving is some support for the right to offer a PBT.  Swerving, unlike a burned out tail-light, can be grouped along with other factors to support indicia of impaired driving.  The swerving, along with appellant’s bloodshot and watery eyes, the odor of alcohol and her admission to alcohol consumption, and the failed HGN test, provided enough for the officer to administer the PBT.

            We acknowledge that the commissioner’s case is not overwhelming.  But the commissioner made a safe landing, taking into account the deference granted a district court on witness credibility and weight.

            Affirmed.