Hubert H. Humphrey III, Attorney General, Timothy C. Rank, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103 (for respondent)

Considered and decided by Shumaker, Presiding Judge, Amundson, Judge, and Shultz, Judge[1].

Appellant challenges the district court's determination that the police officer who arrested him for driving while intoxicated had an articulable reason for the stop because appellant failed to yield the right-of-way to emergency vehicles. Appellant argues that the highway did not have an adequate shoulder to facilitate a safe stop and that he did slow his speed. We affirm.

Shortly after passing Finn's car, Officer Biermaier, who was driving one of the squad cars, was informed that the bar fight had ended and that he was not needed there. Officer Biermaier turned his squad around and stopped Finn's car for failing to yield to emergency vehicles. As a result of that stop, Biermaier arrested Finn for driving while intoxicated. Respondent Commissioner of Public Safety (commissioner) revoked Finn's driving privileges. On November 19, 1997, a hearing was held in the district court to determine whether Officer Biermaier had an articulable reason for stopping Finn's car. The district court sustained the commissioner's revocation of driving privileges. This appeal followed.

Finn argues that Officer Biermaier did not have the requisite articulable suspicion of criminal wrongdoing to stop him. Officer Biermaier asserts that he stopped Finn because he had a particularized and objective basis for suspecting that Finn had failed to yield to emergency vehicles, in violation of the following statute:

Upon the immediate approach of an authorized emergency vehicle equipped with at least one lighted lamp exhibiting red light * * * and * * * when the driver is giving audible signal by siren, the driver of each other vehicle shall yield the right-of-way and shall immediately drive to a position parallel to and as close as possible to the right-hand edge or curb of the highway clear of any intersection, and shall stop and remain in this position until the authorized emergency vehicle has passed, except when otherwise directed by a police officer.

Minn. Stat. § 169.20, subd. 5 (1996). The officers present on the highway testified that Finn did not pull over to the right. Finn asserts that he would have, but that he judged that the three- to four-foot-wide gravel shoulder would have been unsafe to drive on. He also asserts that it would actually have been a violation to drive on the shoulder because drivers are required to drive only on roadways. See Minn. Stat. § 169.01, subd. 31 (1996) (defining "roadway" as the portion of a highway ordinarily used for vehicular travel, exclusive of the shoulder). In addition, despite the officers' testimony that Finn did not slow down at all and that they did not see his brake lights, Finn contends that he did slow down by releasing his foot from the accelerator.

Initial contact with an officer in an implied consent case may be based on the officer's observation of a traffic violation. State v. Pike, 551 N.W.2d 919 (Minn. 1996) (stop valid when officer knew car owner had revoked license because officer was unaware of facts making unreasonable his assumption that owner was driving car); Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730 (Minn. 1985) (stop valid because officer observed facts supporting inference that driver ran a stop sign); Holm v. Commissioner of Pub. Safety, 416 N.W.2d 473 (Minn. App. 1987) (stop valid where driver failed to dim headlights when approaching oncoming traffic). Our supreme court has emphasized that "the factual basis required to support a stop for a 'routine traffic check' is minimal." State v. Johnson, 257 N.W.2d 308, 309 (Minn. 1977) (quoting Terry, 392 U.S. at 21, 88 S.Ct. at 1868). The commissioner correctly notes that the only facts relevant to the determination of the legality of a stop are those available to the officer at the time of the stop. See State v. DeRose, 365 N.W.2d 284, 286 (Minn. App. 1985). In fact, even if the officer's observations are later discovered to be mistaken, the stop is not necessarily invalidated. See City of St. Paul v. Vaughn, 306 Minn. 337, 342-43, 237 N.W.2d 365, 368-69 (Minn. 1975) (stop valid where officers mistakenly believed that defendant was his brother, who they mistakenly believed had a suspended license, because the officers' error was in good faith); State v. Johnson, 392 N.W.2d 685, 687 (Minn. App. 1986) (stop valid where officer had previously observed articulable suspicious driving by a car, but had apparently mistakenly, although reasonably, stopped a different car).

Officer Biermaier had an articulable suspicion of Finn's violation of Minn. Stat. § 169.20, subd. 5. Given the officer's reasonable observations supporting an articulable suspicion of criminal wrongdoing, Finn's arguments regarding the inappropriateness of

the highway shoulder for stopping and attempts to slow his vehicle are unpersuasive. The district court did not err in finding that the stop that led to Finn's arrest was legal.

Affirmed.

[1] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.