Susan Kay Prosser, petitioner, Respondent, vs. Commissioner of Public Safety, Appellant.

Susan Kay Prosser, petitioner, Respondent, vs. Commissioner of Public Safety, Appellant. A06-2076, Court of Appeals Unpublished Decision, October 23, 2007.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2006).

 

STATE OF MINNESOTA
 IN COURT OF APPEALS
A06-2076
 

Susan Kay Prosser,
petitioner,
Respondent,

vs.

Commissioner of Public Safety,
Appellant.

 

Filed October 23, 2007

Affirmed

Dietzen, Judge
Concurring specially, Harten, Judge*

 

Le Sueur County District Court

File No. 40-CV-06-755

 

Jason C. Kohlmeyer, Manahan Bluth & Kohlmeyer, 110 South Broad Street, P.O. Box 287, Mankato, MN 56002-0287 (for respondent)

 

Lori Swanson, Attorney General, Martin A. Carlson, Assistant Attorney General, 445 Minnesota Street, Suite 1800, St. Paul, MN 55101-2134 (for appellant)

 

            Considered and decided by Dietzen, Presiding Judge; Halbrooks, Judge; and Harten, Judge.

 

U N P U B L I S H E D   O P I N I O N

DIETZEN, Judge

            Appellant challenges the district court order rescinding the revocation of respondent's driver's license on the ground that the arresting deputy lacked probable cause to arrest her.  Because the district court properly applied the law and did not abuse its discretion, we affirm. 

FACTS

            About midnight on an evening in August 2006, a Le Sueur County deputy sheriff saw respondent Susan Kay Prosser's SUV approach a four-way intersection in the city of Elysian.  The deputy saw respondent's vehicle stop at the stop sign but then make a very wide right turn, crossing approximately three-quarters of the way over the center of the roadway.  He also noticed that the rear window of respondent's vehicle was smashed out, which raised a concern that she had been in an accident. 

            The deputy stopped respondent's vehicle and after speaking with her and conducting various field sobriety tests, he concluded that she was intoxicated and arrested her.  When she later submitted to an Intoxilyzer test, her alcohol concentration was .11.  Respondent's driver's license was then revoked, and she petitioned the district court for judicial review.

At the review hearing, the deputy testified that he witnessed respondent's turn, stopped her, and approached the vehicle.  As he approached the vehicle, he testified that respondent was smoking a cigarette and chewing gum, that she appeared nervous, and that she did not look at him.  The deputy stated that intoxicated drivers frequently smoke and chew gum to mask the odor of alcohol.  When speaking with respondent, the deputy smelled a "faint" odor of alcohol and observed that her eyes appeared "somewhat sleepy and a little glossy," and she admitted that she had a "couple glasses of wine" that evening.  The deputy then administered three field sobriety tests. 

The deputy testified that he explained and demonstrated the one-leg-stand test to respondent and instructed her to perform the test for 30 seconds.  Respondent then stood on one leg for 10 or 11 seconds, lifted her arms for balance, and then put her foot down.  She then raised her foot for a few seconds and lowered it.  The deputy concluded that she failed the test.  Respondent testified that the deputy demonstrated the test by raising his foot for a couple seconds and then putting his foot down and that his instructions were confusing because he did not indicate how long she should raise her foot. 

            The deputy then administered the horizontal-gaze nystagmus test to observe respondent's eyes for involuntary signs of intoxication.  He testified that the test results showed that respondent's eyes exhibited all six of the signs of intoxication.  Finally, the deputy instructed respondent to recite the alphabet slowly.  She completed the test without difficulty.

            Based on her "[d]riving conduct, her movements, [his] observations of the way she appeared, the odors, and the field sobriety tests," the deputy concluded that respondent was probably impaired, and requested that she submit to a preliminary breath test (PBT), but she refused.  The deputy arrested respondent for DWI, and brought her to the Le Sueur County Law Enforcement Center.  The deputy read her the implied consent advisory; she declined to speak with an attorney and took the Intoxilyzer test. 

            Following the implied consent hearing, the district court concluded that the deputy did not have probable cause to believe that respondent had been driving while intoxicated and ordered the revocation rescinded.  This appeal followed. 

D E C I S I O N

            The commissioner argues that the district court erred in concluding that there was no probable cause to arrest respondent for driving while impaired and invoke the implied consent law.  A determination of probable cause is a mixed question of fact and law; after the facts have been determined, we apply the law to determine whether probable cause existed.  Clow v. Comm'r of Pub. Safety, 362 N.W.2d 360, 363 (Minn. App. 1985), review denied (Minn. Apr. 26, 1985).  We review the district court's findings of fact for clear error.  State v. Horner, 617 N.W.2d 789, 795 (Minn. 2000).  "This court does not review probable cause determinations de novo, instead, we determine if the police officer had a substantial basis for concluding that probable cause existed at the time of invoking the implied consent law."  Groe v. Comm'r of Pub. Safety, 615 N.W.2d 837, 840 (Minn. App. 2000) (quotation omitted), review denied (Minn. Sept. 13, 2000). 

            Minnesota's implied consent law states that any person who drives a motor vehicle in Minnesota consents, subject to the implied consent law, to a chemical test of that person's blood, breath, or urine to determine the presence of alcohol.  Minn. Stat. § 169 A. 51, subd. 1(a) (2006).  A law enforcement officer may require a person to submit to a chemical test "when an officer has probable cause to believe the person was driving, operating, or in physical control of a motor vehicle in violation of section 169 A. 20 (driving while impaired), and . . . the person has refused to take [a PBT]."  Minn. Stat. § 169 A. 51, subd. 1(b)(3) (2006).  If there is probable cause to believe a driver is driving while impaired (DWI), and the driver takes a chemical test and fails it, his or her driver's license shall be revoked by the Commissioner of Public Safety.  Minn. Stat. § 169 A. 52, subd. 4(a) (2006). 

            Probable cause for DWI "exists where 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" of alcohol.  Johnson v. Comm'r of Pub. Safety, 366 N.W.2d 347, 350 (Minn. App. 1985) (citing State v. Harris, 295 Minn. 38, 42, 202 N.W.2d 878, 881 (1972)).  We must consider the totality of the circumstances when determining probable cause.  Groe, 615 N.W.2d at 840.  Probable cause is assessed based on the viewpoint of a prudent and cautious police officer evaluating the facts and circumstances of the scene at the time of the arrest.  State v. Harris, 265 Minn. 260, 264, 121 N.W.2d 327, 331 (1963).  Courts must give "great deference" to an officer's probable cause determination.  State v. Olson, 342 N.W.2d 638, 640-41 (Minn. App. 1984).  But when the existence of probable cause is a close issue, the reviewing court should generally defer to the district court's evaluation of the officer's testimony because that court is in a better position to evaluate that officer's testimony.  Kunz v. Comm'r of Pub. Safety, 349 N.W.2d 593, 596 (Minn. App. 1984).

            The commissioner first argues that the district court improperly discounted the deputy's testimony that respondent failed the one-leg-stand test.  The district court found that respondent "was able to perform two of the three field sobriety tests even though she put her foot down ‘early' on the one leg stand, which may well have been due to confusion regarding the instructions as testified to by [respondent]."

The commissioner next argues that the district court should not have relied on respondent's "alternative explanations for the appearance of intoxication" and relies on Poppenhagen v. Comm'r of Pub. Safety and Stiles v. Comm'r of Pub. Safety to support the argument.  In Poppenhagen, we rejected the defendant's argument that the accident was caused by his unfamiliarity with the motorcycle and that the odor of alcohol emanated from the malt in non-alcoholic beer that he consumed.  Poppenhagen v. Comm'r of Pub. Safety, 400 N.W.2d 799, 801-02 (Minn. App. 1987).  We concluded that defendant's "alternative explanation" did not negate the officer's determination that he was intoxicated at the time the implied consent law was invoked.  Id.; see Stiles v. Comm'r of Pub. Safety, 369 N.W.2d 347, 350-51 (Minn. App. 1985) (rejecting defendant's alternative explanation that his red, glassy eyes, disorientation, and difficulty speaking were caused by the motorcycle accident and not by intoxication).      

Here, the testimony regarding respondent's performance of the one-leg-stand test is not disputed.  But, the deputy and respondent presented conflicting testimony regarding the reasonableness of the deputy's instruction and demonstration of the one-leg-stand test.  The district court credited respondent's testimony that the deputy did not provide reasonable instructions and his demonstration of the test resulting in confusion.  We defer to the district court on issues of credibility.  See Snyder v. Comm'r of Pub. Safety, 496 N.W.2d 858, 860 (Minn. App. 1993) (in reviewing a determination of probable cause, the district court "must necessarily take into account the credibility of the witnesses, the consistency of the testimony, the opportunity of each witness to observe, the expertise or training of a witness, the strength of the observation, and the persuasive or probative value of the observation").  On this record, we cannot say that the district court's findings regarding the one-leg-stand test are clearly erroneous. 

            The commissioner next argues that the district court did not properly evaluate the totality of the circumstances available to the deputy at the scene of the arrest, and "severed each indicia of intoxication . . . and analyzed each in a vacuum."  The commissioner suggests that the district court's statement that "[t]he driving conduct alone did not indicate intoxication, and the totality of the circumstances observed by [the deputy] during the traffic stop did not support the conclusion that Petitioner was driving while intoxicated" supports its argument.  But the commissioner takes the district court's statement out of context.  The district court concluded that

there was insufficient probable cause to believe that Petitioner had operated a motor vehicle while under the influence of alcohol.  The driving conduct alone did not indicate intoxication, and the totality of the circumstances observed by [the deputy] during the traffic stop did not support the conclusion that Petitioner was driving while intoxicated.  There was only a faint odor of alcohol, consistent with Petitioner's statement that she had drank a couple glasses of wine that evening, and Petitioner did not exhibit any other physical signs of intoxication such as slurred speech, bloodshot or watery eyes, or lack of balance.  Finally, Petitioner was able to perform two of the three field sobriety tests even though she put her foot down "early" on the one leg stand, which may well have been due to confusion regarding the instructions as testified to by Petitioner.

 

            Here, respondent committed a minor driving infraction.  Respondent failed the horizontal-gaze nystagmus test, but passed the alphabet test, and the district court found that she was able to perform the one-leg-stand test.  She refused to submit to a PBT, but her refusal is not determinative.  On this record, we conclude that the district court did not abuse its discretion in concluding that the deputy lacked probable cause to arrest respondent at the time that the implied consent law was invoked. 

            Affirmed. 

HARTEN, Judge (concurring specially)

            I concur with the court's opinion but write separately to underscore two points.  First, our review standard for the district court's factual findings is clear error.  Clow v. Comm'r of Pub. Safety, 362 N.W.2d 360, 363 (Minn. App. 1985), review denied (Minn. 26 April 1985).  The district court found that the deputy did not have probable cause to believe that respondent was driving while impaired.  Second, even if the district court erred on that narrow point in this close case, the error was certainly not clear error.  As in Kunz v. Comm'r of Pub. Safety, 349 N.W.2d 593, 596 (Minn. App. 1984), we "conclud[ed] that the [district] court's opportunity to observe [the testimony of the deputy] left it in a better position to evaluate his testimony."  Here, the deputy took the results of an awkwardly and ambiguously administered one-leg-stand test as a failure.  The district court may have assigned little if any weight to that result.  And the deficient test administration may have triggered questions about the deputy's competence to administer and correctly evaluate the more covert and involved horizontal-gaze nystagmus test.  It is for the district court to determine the weight and credibility of all the evidence.

 

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.