Vicki Erickson, Respondent, vs. Richard Reinhold Sorgert, Appellant.

This opinion will be unpublished and may

not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (1998).

STATE OF MINNESOTA

IN COURT OF APPEALS

State of Minnesota,

Respondent,

vs.

Joel Trebesch,

Appellant.

Affirmed

Carver County District Court

File No. K799939

Mike Hatch, Attorney General, 525 Park Street, Suite 500, St. Paul, MN 55103 (for respondent)

Michael A. Fahey, Carver County Attorney, Tara E. Keehr, Assistant County Attorney, Carver County Justice Center, 600 East Fourth Street, Chaska, MN 55318 (for respondent)

Richard L. Swanson, 1059 Stoughton Avenue, Chaska, MN 55318 (for appellant)

            Considered and decided by Lansing, Presiding Judge, Willis, Judge, and Poritsky, Judge.*

LANSING, Judge

            Joel Trebesch appeals from conviction of gross-misdemeanor driving with an alcohol concentration exceeding .10.  The record substantiates that Carver County deputies had the requisite specific and articulable suspicion to request a preliminary breath test, and Trebesch's test failure provided a proper basis for administering an Intoxilyzer test.  We affirm.

            Carver County sheriff's officers apprehended Joel Trebesch in response to a dispatcher's report of domestic assault.  The sergeant who first responded to the call stopped Trebesch's car about 2:30 a.m. near the residence where the call originated.  The sergeant, who knew Trebesch from previous contacts, observed from his demeanor that Trebesch was "certainly under the influence."  According to the sergeant's testimony, all three of the car's occupants looked intoxicated and Trebesch's two passengers had "both been passed out" in the car.  When a sheriff's-office detective and an additional deputy arrived, the sergeant left Trebesch with the two officers and went to the house where the call originated.

            The detective asked Trebesch to get out of the driver's seat, handcuffed him, and placed him in the back seat of his patrol car.  When the detective got back into the patrol car, he noticed a strong odor of alcoholic beverage that had not been there before Trebesch was in the back seat.

            In checking Trebesch's driver's-license status, the detective learned that Trebesch had a restricted license that prohibited any use of alcohol or drugs.  Based on his observation of the strong smell of an alcoholic beverage and the information on Trebesch's license restrictions, the detective decided to administer a preliminary breath test (PBT).  The PBT showed a red light, indicating an alcohol concentration over .10.

The sergeant who was simultaneously investigating the domestic assault report instructed the detective by radio to arrest Trebesch for domestic assault.  The Carver County officers transported Trebesch to the county jail, and Trebesch submitted to an Intoxilyzer test.  The test indicated an alcohol concentration of .17.  Carver County charged Trebesch with domestic assault and three counts of gross-misdemeanor alcohol-related driving offenses.

At a contested omnibus hearing, Trebesch argued that the case should be dismissed because Carver County did not have a statutory basis to request a PBT and consequently the complaint was not supported by probable cause.  The district court denied the motion to dismiss.  Trebesch waived his right to a jury trial and submitted the case for determination on stipulated facts.  The district court found Trebesch guilty of one count of gross-misdemeanor driving with an alcohol concentration exceeding .10.  Trebesch appeals from conviction, arguing that the district court erred in ruling that Carver County officers had statutory grounds to request a PBT and therefore sufficient probable cause to request that he submit to an Intoxilyzer test.

            A peace officer may require a driver to provide a sample of the driver's breath for a preliminary screening test when the officer has "reason to believe," from the manner in which the person is driving or has driven, that the person is driving under the influence of alcohol or a controlled substance.  Minn. Stat. § 169.121, subd. 6(a) (1998).  The statutory standard for administering the preliminary screening test is met when the officer has an "articulable suspicion" that the person has been driving while under the influence of alcohol or with an alcohol concentration exceeding .10.  State, Department of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981).  An officer need not have probable cause to believe that the driver is under the influence before requiring the test.  State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986), review denied (Minn. May 16, 1986).

            Trebesch argues first that the statute requires an officer's reasonable belief to be based solely on observation of the driver's conduct in driving or departing from the vehicle.  This narrow construction of subdivision six was specifically considered and rejected in Juncewski.  308 N.W.2d at 321.  Trebesch contends that Juncewski is distinguishable because the court construed subdivision six in the context of an implied-consent proceeding instead of a criminal prosecution.  But we have previously applied the Juncewski interpretation to criminal driving-under-the-influence prosecutions.  See, e.g., Vievering, 383 N.W.2d at 729.  Furthermore, the statute specifically provides for PBT results to be used in both criminal and civil proceedings.  Minn. Stat. § 169.121, subd. 6(b)(1-6) (1998).  Trebesch bases his argument for strict construction on Knapp v. Commissioner of Pub. Safety, 594 N.W.2d 239, 242 (Minn. App. 1999), rev'd, ___ N.W.2d ___ (Minn. Apr. 20, 2000).  We find nothing in either this court's opinion or the supreme court's reversal that would support this argument.  Furthermore, Knapp is not a criminal prosecution, but an implied-consent proceeding.

            Trebesch alternatively argues that even applying the Juncewski construction of subdivision six, the Carver County officers did not have a specific or articulable suspicion to believe that Trebesch was under the influence of alcohol when he was driving.  We disagree.  In describing the "articulable suspicion" necessary to warrant a PBT request, the supreme court adopted the same standard used for an investigative stop.  Juncewski, 308 N.W.2d at 321 (using the same standard as outlined in State v. Cavegn, 294 N.W.2d 717, 721-22 (Minn. 1980), and Marben v. Department of Pub. Safety, 294 N.W.2d 697, 699-700 (Minn. 1980)).

The sheriff's sergeant who first responded to the dispatch stopped Trebesch's car because it matched the description and location provided in the dispatch.  She recognized Trebesch as the driver and testified that his demeanor showed that he was intoxicated.  She also observed the intoxicated condition of the two other men in the car with him.  When the detective arrived, Trebesch was still in the driver's seat and remained there until the detective placed Trebesch in the back of his squad car.  The detective observed a strong odor of alcoholic beverage that had not been in the squad car before Trebesch entered it.  In addition, the detective learned from his dispatcher check on Trebesch's license that his driving privileges were restricted and conditioned on total abstinence from alcohol.  The district court's finding that the officers had an adequate basis for a specific and articulable suspicion is amply supported by the record.

            Finally, Trebesch argues that the Carver County officers did not have probable cause to arrest him for the alcohol-related driving offenses.  The record indicates that Trebesch was detained for domestic assault and arrested for domestic assault and the gross-misdemeanor driving offenses.  But even if we accepted Trebesch's argument that the arrest for the driving offenses preceded the arrest for domestic assault, probable cause is not lacking.  The results of the PBT "shall be used for the purpose of deciding whether an arrest should be made" and whether to request further chemical tests.    Minn. Stat. § 169.121, subd. 6(b); see also Minn. Stat. § 169.123, subd. 2(a)(4) (1998) (listing PBT failure as basis for administering chemical test).  A PBT may also be used in a prosecution for violation of a restricted driver's license.  Minn. Stat. § 169.121, subd. 6(b)(6) (1998).  The officers had sufficient probable cause to arrest Trebesch for violating laws prohibiting driving while under the influence, driving with an alcohol concentration exceeding .10, and driving after consuming alcohol in violation of a restricted license.

            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.