This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. §480A.08, subd. 3 (1998).

STATE OF MINNESOTA
IN COURT OF APPEALS
C7-99-56

Russell Adam Brandt, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed August 3, 1999
Affirmed
Anderson, Judge

Mille Lacs County District Court
File No. CX-98-932

Howard S. Carp, Howard L. Bolter, Borkon, Ramstead, Mariani & Letourneau, Ltd., 485 Northstar East, 608 Second Avenue South, Minneapolis, MN 55402 (for appellant)

Mike Hatch, Attorney General, Ann M. Offermann, Assistant Attorney General, 525 Park Street, Suite 200, St. Paul, MN 55103-2106 (for respondent)

Considered and decided by Anderson, Presiding Judge, Crippen, Judge, and Schultz, Judge.[*]

U N P U B L I S H E D   O P I N I O N

ANDERSON, Judge

Appellant Russell Adam Brandt challenges the district court's conclusion that he was in "physical control" of a motor vehicle while sitting in the driver's seat of a moving golf cart. We affirm.

FACTS

On September 7, 1998, Deputy Sheriff William Hawley passed a golf cart with three people in it driving down a darkened roadway. Because the cart did not have its lights on, he saw them for just a second as he passed. The deputy turned around and followed the cart as it turned down a dirt road. During the pursuit, the sheriff observed a male, sitting in the driver's seat, with his hands on the steering wheel. When the driver finally stopped, the officer walked up to the golf cart and observed Russell Brandt was sitting on the driver's side behind the wheel but was not touching the steering wheel. Because appellant appeared intoxicated, the officer arrested him for driving while intoxicated and transported him to jail where an Intoxilyzer test was administered. See Minn. Stat. § 169.121, subd. 1(a) (1998) ("It is a crime for any person to drive, operate, or be in physical control of any motor vehicle * * * when the person is under the influence of alcohol."). The commissioner of public safety revoked appellant's driver's license pursuant to Minn. Stat. § 169.123 (1998).

Appellant sought judicial review of the revocation order, asserting that he was not in "physical control" of the golf cart and that he was not actually operating the cart. At the hearing, the officer testified that he observed appellant's hands on the steering wheel while the golf cart was moving. Appellant called Shannon Hopkins, who testified that she was sitting in the middle of the golf cart and was driving the golf cart, which belonged to her roommate. Because the golf cart is small, she could reach over and operate the gas pedal with her left foot and the steering wheel with her left hand. Hopkins further testified that appellant did not drive the golf cart; she had told the officer that she was driving the cart, but admitted that there were other people around so he may have not heard her.

The commissioner of public safety called appellant to testify; he invoked his Fifth Amendment right not to testify.

The district court sustained the revocation of appellant's driver's license after concluding that appellant was in "physical control" of the vehicle. This appeal followed.

D E C I S I O N

The district court found that appellant was in the driver's seat and had his hands on the steering wheel of the golf cart while it was moving. Without directly challenging the district court's findings of fact, appellant argues contrary facts that are not supported by the district court's findings or the record. This court will not set aside the district court's findings of fact unless clearly erroneous. Minn. R. Civ. P. 52.01. Because the record supports the district court's findings, our decision is based on those findings.

Appellant also appears to argue that there was no probable cause for the officer to believe that appellant had physical control of the golf cart. Appellant neither argued this issue at district court, nor did the district court consider such; therefore, we decline to decide the issue as it is not properly before us. See Thiele v Stich, 425 N.W.2d 580, 582 (Minn. 1988) (generally, appellate court will not consider matters not argued and considered in court below).

Finally, appellant contends that the district court erred by concluding that, even if appellant was not actually operating the golf cart, appellant had "physical control" of the golf cart.

The determination of whether appellant was in "physical control" becomes a question of law, which this court reviews de novo. See Snyder v. Commissioner of Pub. Safety, 496 N.W.2d 858, 860 (Minn. App. 1993) (relying on district court's factual findings to decide legal issue of whether appellant was in physical control of vehicle). The implied consent law applies to "[a]ny person who drives, operates, or is in physical control of a motor vehicle." Minn. Stat. § 169.123, subd. 2(a) (1998). A purpose behind the legislature's inclusion of the term "physical control" in the statute is to "`deter individuals who have been drinking * * * from getting into their vehicles, except as passengers.'" Shane v. Commissioner of Pub. Safety, 587 N.W.2d 639, 641 (Minn. 1998) (quoting State v. Juncewski, 308 N.W.2d 316, 320 (Minn. 1981)). While a passenger "`is someone who is merely along for the ride'" and whose "`[m]ere presence in or about the vehicle is not enough for physical control,'" determining whether the person had physical control involves reviewing the "`overall situation.'" Id. (quoting State v. Starfield, 481 N.W.2d 834, 837-38 (Minn. 1992)). A person is in "physical control of a vehicle if he has the means to initiate any movement of that vehicle and he is in close proximity to the operating controls of the vehicle." State v. Duemke, 352 N.W.2d 427, 432 (Minn. App. 1984) (concluding that this definition of physical control, provided in jury instructions, is within apparent scope of Minnesota's DWI statute).

Because appellant was sitting in the driver's seat and had his hands on the steering wheel while the golf cart was moving, appellant was not leaving the driving to Hopkins and was not a "passenger" who was "merely along for the ride." Rather, these facts support the conclusion that appellant had physical control of the cart because he had "the means to initiate any movement of the vehicle and he was in close proximity to the operating controls of the vehicle." See Duemke, 352 N.W.2d at 432 (providing definition of physical control for purposes of motor vehicle operation); see also Ives v. Commissioner of Pub. Safety, 375 N.W.2d 565, 567 (Minn. App. 1985) (concluding that a drunk passenger, who stepped on accelerator of vehicle while it was being operated, had physical control of vehicle).

Affirmed.

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