This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480A.08, subd. 3 (1996).

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-96-1187

State of Minnesota,

Respondent,

vs.

Kenneth Harold Opsal,

Appellant.

Filed January 21, 1997

Affirmed

Amundson, Judge

Hennepin County District Court

File No. 96008499

Thomas R. Johnson, 6300 Shingle Creek Parkway, Suite 305, Brooklyn Center, MN 55430 (for Respondent)

John E. Daubney, 500 Degree of Honor Building, 325 Cedar Street, St. Paul, MN 55101 (for Appellant)

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

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

AMUNDSON, Judge

Appellant Kenneth Opsal challenges his conviction for aggravated DUI. He argues that the traffic stop for unlawful use of high-beam headlights was improper because: (1) his headlights were not in operation at the time of the stop, and (2) the stop was a pretextual stop that was not supported by the evidence. We affirm.

FACTS

Appellant Kenneth Harold Opsal was stopped in his car at about midnight on November 11, 1995. Police Officer Keith David Carlson stopped him because he believed that Opsal's high-beam headlights were on within 1,000 feet of an approaching vehicle, a violation of Minn. Stat. § 169.61. The district court found, however, that Opsal's high-beams were not in use at the time of the stop.

As a result of his impressions and subsequent investigation from the stop, Officer Carlson arrested Opsal for driving while intoxicated. Opsal's intoxication is not an issue in this appeal, but he challenges the officer's basis for the stop. At a probable cause hearing, the court found that the officer legitimately stopped Opsal. A week later, Opsal was found guilty of aggravated driving while intoxicated. This appeal followed.

D E C I S I O N

I. Specific and Articulable Basis

Opsal argues that because his high-beam headlights were not on at the time of the stop, the stop was improper. We disagree.

A police officer must base a traffic stop on "specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio, 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968).

Officer Carlson stopped Opsal's car because he believed the high-beam headlights were on within 1,000 feet of the approach of another car, a violation of Minn. Stat. § 169.61. See Holm v. Commissioner of Pub. Safety, 416 N.W.2d 473, 475 (Minn. App. 1987) (traffic stop for violation of Minn. Stat § 169.61, despite fact that citation was never written, was valid ground for stop that led to DUI arrest). Officer Carlson thought Opsal's high-beams were on because of a distracting amount of glare coming from his headlights. The district court found that Officer Carlson honestly believed Opsal was using his high-beam headlights. Thus, because Officer Carlson's belief that the high-beams were on, constituting a traffic violation, was based on specific and articulable facts (the glare from the lights), taken with reasonable inferences (that the high-beams were on), the stop was valid. Cf. City of St. Paul v. Vaughn, 306 Minn. 337, 342-43, 337, 237 N.W.2d 365, 369 (1975) (where police officers stopped driver whom they thought to be someone they knew whose license has been suspended, but was in fact brother driving with valid license, stop was valid).

II. Pretextuality of the Stop

Opsal also argues that the stop was pretextual. In other words, Opsal claims that Officer Carlson only stopped him because of Carlson's ungrounded belief that he was driving while intoxicated. This type of subterfuge has been called "serious misconduct by law-enforcing officers." Abel v. United States, 362 U.S. 217, 226, 80 S. Ct. 683, 690 (1960). Officer Carlson admits that, based on his experience with people who leave on their high-beam headlights, he was concerned that the car was either stolen or that the driver was intoxicated. However, the district court found that Officer Carlson had stopped the car based on the good-faith belief that Opsal was unlawfully using his high-beam headlights. There is sufficient evident in the record to support that finding.

We conclude that Officer Carlson's stop was not pretextual.

Affirmed.