John Arthur Lund, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent.

John Arthur Lund, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent. A05-1605, Court of Appeals Unpublished, July 25, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1605

 

John Arthur Lund, petitioner,
Appellant,
 
vs.
 
Commissioner of Public Safety,
Respondent.

 

Filed July 25, 2006

Affirmed

Peterson, Judge

 

Meeker County District Court

File No. 47-C5-04-000886

 

Robert D. Schaps, 236 North Sibley Avenue, Litchfield, MN  55355 (for appellant)

 

Mike Hatch, Attorney General, Kyle R. Gustafson, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN  55101-2134 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge; Halbrooks, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from an order denying his petition to reinstate his driver's license,  appellant John Arthur Lund argues that the commissioner of public safety did not have good cause to believe that he had consumed a controlled substance in violation of the total-abstinence restriction on his license.  We affirm.

FACTS

            In 1993, appellant's driver's license was cancelled and denied as inimical to public safety following three alcohol-related incidents between 1983 and 1993.  In 1997, appellant completed rehabilitation, and his driving privileges were reinstated with a condition that he abstain from consuming alcohol and using controlled substances.  

            On October 3, 2004, Dassell Police Officer Greg Verootis saw appellant's vehicle stopped at a traffic light.  Verootis noticed that when the light turned green, appellant squealed his tires twice and looked directly at Verootis.  Verootis stopped appellant.  Appellant told Verootis that his foot was stuck in the floor mat of the vehicle.  Verootis noted that appellant appeared hyperactive and kept waving his arms. 

            Verootis testified that he saw appellant stumble out of the vehicle and that appellant had slurred speech.  Verootis administered the Horizontal Gaze Nystagmus (HGN) test twice.  During both tests, appellant's eyes indicated impairment, including lack of smooth pursuit, the onset of nystagmus prior to 45 degrees, and distinct nystagmus as maximum deviation.  Appellant also displayed impairment during the walk-and-turn test by starting the test too soon, stepping off the line, and using his arms for balance. 

            During the one-leg-stand test, appellant swayed, used his arms for balance, and put his foot down before the test was complete, which Verootis determined indicated impairment.  Appellant's preliminary screening test indicated an alcohol concentration of 0.00.  Verootis concluded that appellant was driving under the influence of a controlled substance and arrested him. 

            Verootis contacted the sheriff's office to request the assistance of a drug- recognition evaluator (DRE), and Dean Anfinson, who had been a DRE since 2000, responded to the request.  To become certified as a DRE, Anfinson had participated in a five-week course.  The certification process included 80 hours of classroom work, three weeks of evaluations on volunteers, and a written test.  Since becoming certified, Anfinson had conducted between 75 and 100 evaluations when he evaluated appellant. 

            When Anfinson first saw appellant at the Meeker County jail, appellant appeared disheveled, his hair was messy, and his face was flushed.  Appellant's voice was low, almost growling, and his speech was slurred and hard to understand.  Anfinson videotaped his evaluation of appellant, which included several steps: a breath test, an interview of the arresting officer, a preliminary examination, an eye examination, divided-attention tests, a battery of vital statistics, further eye examinations in a dark room, nasal and oral cavity checks, checks for muscle tone and injection sites, and questioning of appellant.

            Anfinson noted that appellant's pulse and pupil size were on the high end of the normal range, indicating that a controlled substance might be altering appellant's normal body functions.  Appellant showed a distinct lack of eye convergence, which, according to Anfinson's training and experience, indicates the use of a controlled substance.  Anfinson testified that of the various controlled substances known to cause a lack of eye convergence, cannabis is the most pronounced. 

            Anfinson administered four divided-attention tests, which all revealed indicators of impairment and led Anfinson to conclude that appellant had taken something that caused him to "speed things up."  During the Romberg test, in which the test subject closes his eyes, tilts his head back, and tries to estimate the passage of 30 seconds, appellant estimated that 30 seconds had passed after only 9.75 seconds.  Appellant also had eyelid tremors and was fidgeting with his fingers.  During the walk-and-turn test, appellant used the wall and desk for balance and did not walk heel-to-toe on any of the steps.  Appellant also used the wall for balance on the one-leg-stand test.  Appellant claimed that burns on his feet made it painful to walk and stand.  Anfinson checked appellant's feet and saw no blisters or open sores, only some "pink marks . . . blemishes." 

            When Anfinson administered the finger-to-nose test, appellant had eyelid tremors.  On the first attempt, appellant touched below the tip of his nose using the pad of his finger rather than the tip.  On the second attempt, appellant used the pad of his finger and on the third attempt touched low and to the right of the tip of his nose using the pad of his finger.  On the fourth attempt, he touched the tip of his nose.  On the next attempt, appellant started with his left hand, rather than his right, and used the pad of his finger to touch the tip of his nose; he then started with the right hand, instead of the left, and touched the tip of his nose low. 

            Anfinson again checked appellant's pulse and blood pressure and found that both were on the high end of normal.  Appellant's body temperature was 97.5 degrees, which was low compared to normal.  Anfinson conducted a series of tests on appellant's eyes in varying levels of light, which revealed that appellant's pupils were dilated larger than normal.  Anfinson observed that appellant's nostrils were red and that there were scabs inside his nostrils.  Appellant refused to take a urine test and stated that he had already taken a breath test.  Anfinson testified that, based on his training and experience, his observations of appellant indicated that appellant was under the influence of cannabis and a central-nervous-system stimulant. 

            Verootis sent the police report that he prepared and the DRE report that Anfinson prepared to the department of public safety.  Based on the information in the reports, the commissioner concluded that there was sufficient cause to believe that appellant had consumed a controlled substance in violation of the total-abstinence restriction on his driving privileges and canceled and denied appellant's driving privileges as inimical to public safety.  Appellant filed a petition for reinstatement.  Appellant testified at the hearing on the petition that he had not consumed any controlled substances.  Appellant indicated that he had a head cold and had consumed Nyquil on the day he was arrested.  The district court denied appellant's petition for reinstatement. 

D E C I S I O N

"[T]here is a presumption of regularity and correctness when license matters are reviewed."  Thorson v. Comm'r of Pub. Safety, 519 N.W.2d 490, 493 (Minn. App. 1994).  "This court will not reverse a license determination unless it finds that it is unsupported by substantial evidence or is arbitrary and capricious."  Id.  The commissioner of public safety must present some evidence to show that there was good cause to believe that the total-abstinence restriction was violated.  Plaster v. Comm'r of Pub. Safety, 490 N.W.2d 904, 906 (Minn. App. 1992).  Appellant must show that the commissioner acted unreasonably.  Thorson, 519 N.W.2d at 493. 

Appellant argues that the district court's decision should be reversed because the commissioner's decision to cancel his driver's license was without good cause and was arbitrary and unreasonable.  Appellant contends that the commissioner's decision was not supported by any physical evidence that he had ingested any alcohol or a controlled substance and was instead based on the purely subjective opinions of Verootis and Anfinson that appellant was under the influence of a controlled substance.  We disagree.

Although interpreting appellant's performance on several of the tests administered by Verootis and Anfinson involved some subjective judgment, the evidence included more than the officers' interpretations of appellant's performance.  Both officers described their observations of appellant's performance on the tests.  For example, Verootis did not simply testify that appellant's performance on the one-leg-stand test indicated that appellant was impaired; Verootis testified that during the test, appellant swayed, used his arms for balance, and put his foot down before the test was complete and that this performance indicated that appellant was impaired.  Similarly, Anfinson did not simply testify that appellant's performance on the finger-to-nose test indicated that appellant was impaired; Anfinson described appellant's failures to touch his nose during the test.  These descriptions of appellant's performance are not purely subjective opinions.  They are accounts of physical events that the officers observed, and under the tests that the officers used, the events that they observed indicated that appellant had used a controlled substance. 

The district court specifically found that Verootis and Anfinson were credible.  This court must give due regard to the district court's assessment of witness credibility.  Dufrane v. Comm'r of Pub. Safety, 353 N.W.2d 705, 707 (Minn. App. 1984) (citing Minn. R. Civ. P. 52.01); see also Hasnudeen v. Onan Corp., 552 N.W.2d 555, 557 (Minn. 1996) (explaining that great deference is accorded "a [district] court's findings of fact because it has the advantage of hearing the testimony, assessing relative credibility of witnesses and acquiring a thorough understanding of the circumstances unique to the matter before it").  The district court also found that the videotape of appellant taking the tests administered by Anfinson supported the conclusion that appellant was under the influence of a controlled substance.

Although the officers' observations did not all indicate that appellant had used a controlled substance, and their observations did not conclusively establish that appellant had used a controlled substance, their credible testimony established that the commissioner had good cause to believe that appellant had violated the total-abstinence restriction on his driving privileges.  Appellant has not met his burden to show that the commissioner acted unreasonably.

            Affirmed.