Troy Allen Merritt, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2002).

 

 

STATE OF MINNESOTA

IN COURT OF APPEALS

C3-02-1393

 

Troy Allen Merritt, petitioner,

Appellant,

 

vs.

 

Commissioner of Public Safety,

Respondent.

 

Filed May 6, 2003

Affirmed Willis, Judge Dissenting, Schumacher, Judge

 

Dakota County District Court

File No. C9022203

 

 

Alan D. Margoles, Margoles & Margoles, 790 Cleveland Avenue South, Suite 223, Saint Paul, MN  55116 (for appellant)

 

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

 

            Considered and decided by Willis, Presiding Judge, Schumacher, Judge, and Anderson, Judge.

 

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges the district court's order sustaining revocation of his driving privileges under Minnesota's implied-consent statute.  He argues that the district court erred by determining that he was in "physical control" of his vehicle because the vehicle was mechanically inoperable and because he did not intend to drive.  Because we conclude that the district court did not err, we affirm.

FACTS

On January 23, 2002, Inver Grove Heights police officer Terry Kelley responded to a call about a disturbance at appellant Troy Allen Merritt's house.  When Officer Kelley arrived, he found Merritt in the driver's seat of Merritt's tractor-trailer, which was parked on the street in front of Merritt's house.  The tractor-trailer's engine was running and the headlights were on.  Officer Kelley noticed that the tractor-trailer's cab smelled of alcohol, and he saw a partially full bottle of liquor on the cab floor.  After conducting a field sobriety test on Merritt, Officer Kelley invoked the implied-consent statute, and Merritt submitted to an Intoxilyzer test, which showed that Merritt's alcohol concentration was .18, and his driving privileges were subsequently revoked.

At a May 2002 implied-consent hearing, Merritt testified that (1) on January 23, he was unable to drive the tractor-trailer because of an "air line freeze"; (2) he thought the frozen air line might fix itself if the temperature rose sufficiently; and (3) he intended to sleep in his tractor-trailer, which is equipped with a sleeping compartment.

David Zabel, Merritt's mechanic, testified that (1) the brakes on Merritt's tractor-trailer were locked because of a frozen air line; (2) Merritt could not move the tractor-trailer because of the locked brakes; (3) a tow-truck operator might have had the tools necessary to release the brakes; and (4) Zabel repaired the frozen air line on January 24, the day after Merritt's arrest. 

Kenneth Billinger, who helps Merritt load and unload Merritt's tractor-trailer,  testified that on January 23, the tractor-trailer was inoperable and the "dollies" were down.  Billinger explained that dollies are the legs on the underside of the trailer that support the trailer when it is disconnected from the tractor.

Kim Rinnels, who lives with Merritt, testified that Merritt had slept in his tractor-trailer in the past.  She also testified that on the night of January 23, Merritt was wearing pajamas that he would not normally wear in public.

The district court sustained the revocation of Merritt's driving privileges, and this appeal follows.

D E C I S I O N

Minnesota's implied-consent statute requires revocation of driving privileges

[u]pon certification by the peace officer that there existed probable cause to believe the person had been driving, operating, or in physical control of a motor vehicle in violation of section 169 A. 20 (driving while impaired) and that the person submitted to a test and the test results indicate an alcohol concentration of 0.10 or more * * * .

 

Minn. Stat. § 169 A. 52, subd. 4 (2000).  To sustain revocation of driving privileges, the Commissioner of Public Safety must prove not only that the police officer had probable cause to believe the driver was in physical control of the vehicle but also that the driver was in such physical control.  Roberts v. Comm'r of Pub. Safety, 371 N.W.2d 605, 607 (Minn. App. 1985), review denied (Minn. Oct. 11, 1985).  Laws prohibiting a person from operating or being in physical control of a motor vehicle while intoxicated are remedial statutes and are to be "liberally interpreted in favor of the public interest and against the private interests of the drivers involved."  State, Dep't of Pub. Safety v. Juncewski, 308 N.W.2d 316, 319 (Minn. 1981).

Whether a person is in physical control of a motor vehicle for purposes of the implied-consent law is a mixed question of fact and law.  Snyder v. Comm'r of Pub. Safety, 496 N.W.2d 858, 860 (Minn. App. 1993).  Once the facts are established, the issue of physical control is a question of law, which this court reviews de novo.  Id.

            Merritt concedes that he was intoxicated on the night of January 23, 2002.  But he argues that he could not drive, operate, or be in physical control of his tractor-trailer because the locked brakes rendered it inoperable.  He also argues that he had no intention of driving and reasonably decided to sleep in his tractor-trailer.

            A.         Physical Control of an Inoperable Vehicle

            In State v. Starfield, 481 N.W.2d 834 (Minn. 1992), the supreme court reinstated the DWI conviction of a person found behind the wheel of a car that was stuck in a snow-filled ditch and could not be moved without the assistance of a tow truck.  This court had reversed the conviction on the ground that the state had failed to show that the person was in physical control of the vehicle.  Id. at 836.  The supreme court held that the state did not need to "prove operability of the motor vehicle," noting that "inoperability" is a factor to be evaluated with all the surrounding facts and circumstances when deciding whether a person was in physical control of a vehicle.  Id. at 838-39.  The supreme court suggested a jury instruction on physical control that requires consideration of

[(1) the] defendant's location in or by the vehicle, [(2)] the location of the ignition keys, [(3)] whether the defendant had been a passenger in the vehicle before it came to rest, [(4)] who owned the vehicle, [(5)] the extent to which the vehicle was inoperable, and [(6)] whether the vehicle if inoperable might have been rendered operable so as to be a danger to persons or property.

 

Id.

            Merritt argues that Starfield requires application of those six factors here, and he concedes that the first four factors weigh in favor of a finding that he was in physical control of his tractor-trailer.  He argues, however, that consideration of the fifth and sixth factors leads to the conclusion that he was not in physical control of his tractor-trailer because it was inoperable.  But the holding in Starfield does not require consideration of these factors; rather, it merely suggests that a jury instruction might include them.  Further, Starfield involved a car that was immovable without the assistance of a tow truck.  When it reinstated the conviction, the supreme court explicitly declined to require proof that the car was operable.  Id. at 838.  Regarding the sixth factor, Merritt argues that rendering his tractor-trailer operable required the attention of a mechanic.  But Merritt does not distinguish his need for a mechanic from the need for a tow truck in Starfield.  Further, Merritt testified that he thought that the tractor-trailer might warm up and fix itself, and Zabel, Merritt's mechanic, testified that a tow-truck operator might have had the tools necessary to release the brakes.

            The facts of the instant case are also very similar to those of other cases in which this court has found physical control despite the need for third-party intervention to move the vehicle.  In State v. Woodward, 408 N.W.2d 927, 928 (Minn. App. 1987), we held that a flat tire did not render a vehicle "mechanically inoperable" so as to preclude application of the DWI statute.  And in Abeln v. Comm'r of Pub. Safety, 413 N.W.2d 546, 548, (Minn. App. 1987), we refused to differentiate between a flat tire and depleted battery, instead holding that they "both render the vehicle only temporarily inoperable and * * * are quickly remedied."

Merritt focuses on whether there was "quick remedy" for his predicament, citing Flamang v. Comm'r of Pub. Safety, 516 N.W.2d 577 (Minn. App. 1994), review denied (Minn. July 27, 1994).  In Flamang, this court stated that Starfield, Woodward, and Abeln all "emphasized that the [vehicle] disabilities were merely temporary."  Id. at 581.  The Flamang court cited Starfield for the proposition that physical control applies to a "parked vehicle that, without too much difficulty, might again be started and become a source of danger * * *."  Id. (citing Starfield, 481 N.W.2d at 837).  Merritt argues that his tractor-trailer could not be operated again "without too much difficulty."  Although Merritt needed a mechanic or tow truck to render his tractor-trailer operable, we conclude that he faced no more difficulty than did the driver in Starfield. 

Merritt also argues that his tractor-trailer was inoperable because the trailer's dollies were lowered.  But nothing in the record suggests that raising the dollies is more difficult than fixing a flat tire or replacing or recharging a depleted battery.  Further, nothing suggests that Merritt was unable simply to disconnect the trailer from the tractor.  We conclude, therefore, that under current caselaw, the condition of Merritt's tractor-trailer did not preclude the district court from concluding that he was in physical control of the vehicle.

            B.         No Intention to Drive

            Merritt cites State, City of Falcon Heights v. Pazderski, 352 N.W.2d 85 (Minn. App. 1984), for the proposition that he was not in physical control of his tractor-trailer because he did not intend to drive and reasonably chose to sleep in the vehicle.  In Pazderski, this court held that the appellant was not in physical control of a vehicle when he was found stretched out on the front seat of his car, which was parked in his driveway with the engine turned off and no key in the ignition.  Id. at 87, 89.  The court reasoned that the appellant arrived home, made a reasonable decision to avoid a domestic dispute with his girlfriend, and "had no intention of restarting the vehicle * * * or driving any place else."  Id. at 88.  Merritt argues that his situation was similar to that of the appellant in Pazderski because his tractor-trailer was parked in its "normal spot" and he too was trying to avoid a domestic dispute.

            But proving that Merritt was in physical control of his tractor-trailer does not require a showing that he "was in the vehicle for the purpose of operating the motor vehicle * * * [because] intent to operate is not an element" of the offense.  Starfield, 481 N.W.2d at 839; see also Palme v. Comm'r of Pub. Safety, 366 N.W.2d 343, 345 (Minn. App. 1985) (holding that appellant was in physical control of vehicle when appellant claimed he entered a friend's truck only to sleep and never planned to drive), review denied (Minn. June 24, 1985).

Further, the Pazderski court was reviewing a criminal conviction of driving while impaired, which involves a higher burden of proof than does a revocation of driving privileges under the implied-consent statute.  The court noted:

[I]t it is important to keep in mind that the case before us involves a criminal conviction [of] * * * "drunken driving," and the standard of proof in misdemeanor cases is proof beyond a reasonable doubt. This case does not come before us involving [the implied-consent statute,] which is a civil and remedial statute with the lesser burden of proof on the state of "a fair preponderance of the evidence." Although the phrase "in physical control of a motor vehicle" is the same in both statutes, the burden of proof the state must carry is greater for the charge of drunken driving.

 

Pazderski, 352 N.W.2d at 87.

            Finally, there are important differences between the facts here and those in Pazderski.  Here, Merritt was found behind the wheel of his tractor-trailer, with the engine running and the headlights on.  We also note that Merritt was seated at the wheel despite the availability of a sleeping compartment.  Further, unlike in Pazderski, Merritt's tractor-trailer was parked on a public roadway.

            Because we conclude that the district court did not err by determining that Merritt was in physical control of his tractor-trailer regardless of whether he intended to drive, we affirm the court's order sustaining revocation of Merritt's driving privileges.

            Affirmed.

           

           

           

ROBERT H. SCHUMACHER, Judge (dissenting).

I respectfully dissent.  I believe the circumstances under which Merritt was found in his tractor-trailer, and the condition of the vehicle, show that that Merritt was not in actual physical control of the vehicle for purposes of the implied-consent statute.  It is undisputed that Merritt was intoxicated and had been arguing with his wife.  Merritt testified that he wanted to avoid a domestic dispute so he called the police and then went outside to wait for them.  It was not only reasonable that Merritt would want to avoid a dispute, but it was also reasonable that he would go to his tractor-trailer, which served as his second home when he was on the road.  The fact that he was dressed in pajamas suggests that he did not intend to drive away.

Further, the trailer was loaded with several thousand pounds of furniture, the dollies on the trailer were down, and, most importantly, the brakes were locked.  On the day of his arrest, Merritt was unable to drive the tractor-trailer because of the locked brakes, needing instead to unload his cargo and load it on his father's tractor-trailer to make a delivery the next day.  In State v. Starfield, 481 N.W.2d 834, 838 (Minn. 1992), the supreme court declined to require a showing of operability to prove physical control because a "person in physical control may, while still inebriated, correct the disability and meander down the road."  Here, Merritt obviously could not correct the disability because he used a substitute vehicle and waited for assistance from his mechanic, which he received the next day.

The Starfield court declined to require a showing of operability, but the court also recommended an approach to determining physical control that considers the totality of the circumstances.  See id. at 839.  Here, the totality of the circumstances show that Merritt was not in physical control of his tractor-trailer.