State of Minnesota, Respondent, vs. James Vernon Nitz, Appellant.

State of Minnesota, Respondent, vs. James Vernon Nitz, Appellant. A06-214, Court of Appeals Unpublished, January 9, 2007.

This opinion will be unpublished and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

A06-214

 

State of Minnesota,

Respondent,

 

vs.

 

James Vernon Nitz,

Appellant.

 

Filed January 9, 2007

Affirmed Hudson, Judge

 

Stearns County District Court

File No. KX-04-2291

 

 

Mike Hatch, Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, Minnesota 55101-2134; and

 

Jan Petersen, St. Cloud City Attorney, Laura L. Gray, Assistant City Attorney, 400 Second Street South, St. Cloud, Minnesota 56303 (for respondent)

 

Todd V. Peterson, 16 Ninth Avenue North, St. Cloud, Minnesota 56303; and

 

James R. Chatto, 303 First Avenue Northeast, Suite 250, Faribault, Minnesota 55021 (for appellant)

 

            Considered and decided by Minge, Presiding Judge; Shumaker, Judge; and Hudson, Judge.

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            Appellant James Vernon Nitz was convicted of third-degree driving while impaired in violation of Minn. Stat. § 169 A. 20, subd. 1(1) (2004).  Appellant challenges the district court's denial of appellant's motion to suppress his urine test.  Because the district court did not err in determining that the requisite temporal connection between the indicia of intoxication and the driving conduct existed, we affirm.

FACTS

On May 16, 2004, at approximately 2:08 a.m., Officer Orth of the St. Cloud Police Department received a dispatch for a welfare check.  Dispatch received this information from a taxi driver who said he just dropped off a bleeding, intoxicated man at a residence.  Soon after the call, Officer Orth arrived at the residence and found that no one was home.  A trail of blood led to the door and continued inside the house.  Dispatch then informed Officer Orth that the owner of the residence, appellant James Vernon Nitz, had checked into a hospital.  Officer Orth was sent to the hospital, arriving about 15 minutes after initially checking appellant's residence, and he spoke with appellant in the emergency room to discover what happened.  The officer observed that there was a strong odor of alcohol emanating from appellant, that appellant's speech was slurred, and that appellant's eyes were bloodshot and watery.  Officer Orth also noticed that appellant had sustained visible injuries to his face, including his mouth.  Appellant further complained of leg and ankle injuries.

            Appellant explained to Officer Orth that he had been driving home and the last thing he remembered was stopping at a stop sign and hearing someone yell "Hey, you!"  Appellant admitted to driving a white GMC truck, and he described the location where he had been driving.  Officer Orth then received a call from Officer Moline, who said that he found appellant's white GMC truck near the location that appellant had described to Officer Orth.  The truck was badly damaged and there was blood in and around it.  Officer Orth testified that, based upon appellant's injuries, the vehicle damage, the initial information from the taxi driver, and his own observations, he believed that appellant had been driving while intoxicated.  Officer Orth read the implied-consent advisory to appellant at approximately 3:15 a.m., provided appellant with a telephone and telephone books, and obtained a urine sample from appellant.

            After the contested omnibus hearing, the district court denied appellant's motion to suppress his urine test.  At a jury trial on October 11 and 12, 2005, appellant was convicted of third-degree driving while impaired under Minn. Stat. § 169 A. 20, subd. 1(1).  The sentence was stayed, pending this appeal.  

D E C I S I O N

I

            Appellant argues that the officer did not have probable cause to believe that appellant had been driving under the influence because the officer failed to establish the requisite temporal connection between the drinking and driving. 

"When reviewing pretrial orders on motions to suppress evidence, [this court] may independently review the facts and determine, as a matter of law, whether the district court erred in suppressingor not suppressingthe evidence."  State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).  "The trial court's factual findings are subject to a clearly erroneous standard of review."  State v. Critt, 554 N.W.2d 93, 95 (Minn. App. 1996), review denied (Minn. Nov. 20, 1996).  "The correct approach in a case where the facts are not significantly in dispute is to simply analyze the testimony of the officers and determine if, as a matter of law, the officers were justified under the cases in doing what they did."  State v. Storvick, 428 N.W.2d 55, 58 n.1 (Minn. 1988).

In Minnesota, the implied-consent law provides that a person must submit to chemical testing when an officer has probable cause to believe that the person was driving while under the influence of alcohol.  Minn. Stat. § 169 A. 51, subd. 1(b) (2004).  Such probable cause exists if "all the facts and circumstances would warrant a cautious person to believe that the suspect was driving or operating a vehicle while under the influence."  Johnson v. Comm'r of Pub. Safety, 366 N.W.2d 347, 350 (Minn. App. 1985).  One indicia of intoxication is enough to invoke the implied-consent laws if the officer can establish a "sufficient time frame of the sequence of events" to support a finding of probable cause.  Hasbrook v. Comm'r of Pub. Safety, 374 N.W.2d 592, 594 (Minn. App. 1985). The evidence must show the "necessary temporal connection" between the driver's involvement in an accident and his intoxication.  Dietrich v. Comm'r of Pub. Safety, 363 N.W.2d 801, 803 (Minn. App. 1985).

Here, appellant admitted to driving a white GMC truck.  The vehicle was found near the location where appellant said he left it, and the damaged vehicle contained blood in and around it.  Thus, from the record it appears that appellant had been driving.  Regarding the question of whether appellant had been intoxicated while operating the vehicle, Officer Orth stated that the initial information from the taxi driver was that the person he had taken to the residence was intoxicated.  Furthermore, Officer Orth testified that appellant exhibited several indicia of intoxication at the hospital, including a strong odor of alcohol, slurred speech, and bloodshot, watery eyes. 

Appellant argues that Officer Orth failed to establish "the necessary temporal connection" between appellant's involvement in the accident and his intoxication, thus failing to establish probable cause to believe that appellant was driving while under the influence of alcohol.  An officer need not testify explicitly as to the time of the drinking and driving but must be able to establish a temporal connection between the act of driving and the apparent intoxication.  Eggersgluss v. Comm'r of Pub. Safety, 393 N.W.2d 183 (Minn. 1986); Vangstad v. Comm'r of Pub. Safety, 404 N.W.2d 1516 (Minn. App. 1987).

The record supports the district court's finding that this case is similar to Hasbrook, a case in which an officer received a call reporting a vehicle in a ditch.  Hasbrook,374 N.W.2d at 593.  When the officer found the vehicle, no one was in it, but the officer received information that the driver was seen walking toward a gas station.  Id.  The officer found the driver at the gas station, noticed signs of intoxication, placed him under arrest, and read the implied-consent advisory to him.  Id.  We held that there was a sufficient temporal connection because, while the officer did not testify explicitly as to the time of the accident or when he believed the defendant had been driving, there were facts that provided a sufficient time frame of the sequence of events to support a finding that there was probable cause to believe defendant had been driving while intoxicated.  Id. at 594.

Similarly, in this case Officer Orth did not testify as to the time of the accident or when he believed defendant had been driving.  But the record supports the district court's finding that there was sufficient evidence to link the time of collision to when appellant was determined to be under the influence of alcohol.  After dropping appellant off at his residence, the taxi driver informed dispatch that he had picked up appellant at Nahan Printing, that appellant was bleeding out of his head, and that appellant smelled of alcoholic beverages.  Officer Orth was dispatched to appellant's residence at 2:08 a.m. and arrived within minutes of the dispatch.  Within 15 minutes of arriving at the residence, Officer Orth proceeded to the hospital where appellant had checked in.  Officer Moline, who was at the scene of the accident, informed Officer Orth that there was a blood trail from the scene of the accident to Nahan Printing, where the taxi had picked up appellant.  At about 3:15 a.m., Officer Orth invoked the implied-consent advisory.  The district court found that even though the officer did not testify as to the time the accident occurred or when he believed appellant had been driving, the chain of events described above provided "a sufficient temporal connection and that Officer Orth had probable cause to require that [appellant] submit to chemical testing."  The record supports the district court's finding of a temporal connection. 

II

Appellant argues for the first time on appeal that a vindicated welfare check prohibits the police from conducting a Terry stop.  Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968).  An appellate court will not review issues that were not argued in front of the district court and that were not considered by the district court, including constitutional questions of criminal procedure.  Roby v. State, 547 N.W.2d 354, 357 (Minn. 1996).  "At the court's discretion, it may deviate from this rule when the interests of justice require consideration of such issues and doing so would not unfairly surprise a party to the appeal."  Id.  

Appellant has failed to demonstrate how the interests of justice would be served were the panel to consider this issue for the first time on appeal; accordingly, we decline to address this issue.

Because the district court's factual findings are not clearly erroneous, and because the district court did not err in determining that there was a sufficient temporal connection, we affirm.

Affirmed.