In Re the Marriage of: Janie Severance, f/k/a Janie B. Horsley, petitioner, Respondent, vs. S. Paul Horsley, 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This opinion will be unpublished and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

C2-99-1874

Michael Conrad Leurer,

petitioner,
Appellant,
 
vs.
 
Commissioner of Public Safety,
Respondent.

Filed June 27, 2000

Affirmed
Klaphake, Judge

Ramsey County District Court

File No. C7-99-5365

Michael C. Leurer, 5902 Carlson, Shoreview, MN  55126 (pro se appellant)

Mike Hatch, Attorney General, Joel A. Watne, Assistant Attorney General, 525 Park St., Suite 500, St. Paul, MN  55103 (for respondent)

            Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.

KLAPHAKE, Judge

Appellant Michael Leurer's driver's license was cancelled when the Commissioner of Public Safety determined that Leurer had consumed alcohol in violation of a total abstinence restriction.  Leurer petitioned the district court for reinstatement of his driving privileges, claiming he had consumed only non-alcoholic beer.  The district court denied Leurer's petition.  Leurer appeals, challenging the district court's determination that he was not entitled to reinstatement.  Because the record contains evidence reasonably supporting the court's findings, we affirm.

D E C I S I O N

            A person whose driver's license has been cancelled may petition the district court for reinstatement of his driving privileges.  Minn. Stat. § 171.19 (1998).  The petitioner bears the burden of proving that he is entitled to reinstatement.  Gardner v. Commissioner of Pub. Safety, 423 N.W.2d 110, 113 (Minn. App. 1988).  The sole issue before the district court was whether Leurer violated the restrictions on his driver's license by consuming alcohol.

            Leurer argues that the evidence did not support the district court's conclusion on this issue.  The record discloses the following evidence supporting the conclusion that Leurer had consumed alcohol: (1) an officer who discovered Leurer in his vehicle detected an odor of alcohol on Leurer's breath; (2) a portable breath test displayed a positive reading, indicating the presence of alcohol in Leurer's body; and (3) Leurer had driven his vehicle to the side of the road, allegedly to sleep, which, when joined with the other evidence, provides an inference of alcohol consumption.

            Leurer challenges the district court's finding that his exculpatory testimony was not credible.  But the determination of witness credibility lies within the province of the court as finder of fact, and an appellate court generally defers to a district court's credibility determination.  Convady v. Commissioner of Pub. Safety, 396 N.W.2d 914, 916 (Minn. App. 1986).  By way of an affidavit from a Bureau of Criminal Apprehension expert, the commissioner presented unrefuted evidence that Leurer would have had to consume at least seven non-alcoholic beverages between the time he claims he began drinking and the time of the breath test in order for the portable testing unit to display a "positive" reading.  Considering Leurer's testimony that he drank only two non-alcoholic beers, the district court's credibility determination was not clearly erroneous.  See Burke v. Commissioner of Pub. Safety, 381 N.W.2d 903, 904 (Minn. App. 1986) (district court's factual findings in implied consent cases not disturbed unless clearly erroneous).

            Affirmed.