Douglas C. Haupt, 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This opinion will be unpublished and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

A03-37

Douglas C. Haupt, petitioner,

Appellant,

vs.

Commissioner of Public Safety,

Respondent.

Filed ­­­October 21, 2003

Affirmed

Harten, Judge

Mille Lacs County District Court

File No. C8-01-1119

Jeffrey S. Sheridan, Strandemo, Sheridan & Dulas, P.A., 320 Eagandale Office Center, 1380 Corporate Center Curve, Eagan, MN 55121 (for appellant)

Mike Hatch, Attorney General, Jeffrey S. Bilcik, Sean R. McCarthy, Assistants Attorney General, 1800 NCL Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)

            Considered and decided by Wright, Presiding Judge, Harten, Judge, and Anderson, Judge.

HARTEN, Judge

            Appellant challenges the revocation of his driver's license, arguing that the tribal police officer who administered a breath test to him was not a peace officer within the meaning of Minn. Stat. § 169 A. 51, subd. 1(a) (2002).  Because we see no error of law, we affirm.

FACTS

A motor vehicle driven by appellant Douglas Haupt was stopped by a tribal police officer who read him the implied consent advisory.  After appellant consented to undergo a chemical test, the officer administered a breath test, which appellant failed.  The officer then completed and signed the "peace officer's certificate" on the back of the implied consent advisory and issued an order of driver's license revocation.  

 Appellant petitioned for judicial review.  On the first day of the implied consent hearing, after the officer testified, appellant moved to rescind the revocation of his license because the tribal police officer was not a "peace officer" and a test to determine a driver's alcohol concentration level "must be administered at the direction of a peace officer."  Minn. Stat. § 169 A. 51, subd. 1(a) (2002).  The district court recessed the hearing in order to evaluate the merits of appellant's motion to rescind.

When the hearing resumed, the district court denied the motion to rescind, concluding that the officer was a peace officer within the meaning of the statute.  After the hearing, the district court issued an order sustaining the revocation of appellant's license.  Appellant challenges the district court's conclusion that the officer who administered the test was a "peace officer" within the meaning of the statute.

D E C I S I O N

 "Conclusions of law will be overturned only upon a determination that the [district] court has erroneously construed and applied the law to the facts of the case."  Dehn v. Comm'r of Pub. Safety, 394 N.W.2d 272, 273 (Minn. App. 1986).

The district court construed three statutory provisions to arrive at its conclusion:  Minn. Stat. § 626.90, subd. 1 (2002) (providing that the Mille Lacs Band of Chippewa Indians is a federally recognized tribe); Minn. Stat. § 626.90, subd. 3 (2002) (providing that, if a band complies with the requirements of Minn. Stat. § 626.90, subd. 2 (2002), it is authorized to appoint peace officers, as defined in Minn. Stat. § 626.84, subd. 1(c), who have the same powers as peace officers employed by local units of government); and Minn. Stat. § 626.84, subd. 1(c)(2) (2002) (providing that a "peace officer" includes those who are employed by a law enforcement agency of a federally recognized tribe and who [are] licensed by the board).  The district court reasoned that a police officer employed by the law enforcement agency of the federally recognized Minnesota Band of Chippewa Indians is a peace officer.  This construction of the statute is not erroneous and is consistent with caselaw.  See, e.g., State v. Larivee, 656 N.W.2d 226, 227 (Minn. 2003) (referring not to a peace-officer-administered but to a "police-administered blood-alcohol-level test") (emphasis added), cert. denied, 71 USLW 3699 (6 Oct. 2003).

Appellant also argues that there was no proof of the officer's qualifications as a peace officer.  But the officer testified, without objection, that he was a police officer with the Mille Lacs tribal police department.  Moreover, the certificate on the back of the implied consent form, signed by the officer and stating "I am a ‘peace officer' within the meaning of Minnesota Statutes Section 169 A. 03, subdivision 18" was admitted as a hearing exhibit, without qualification or limitation.  We conclude that the district court had adequate proof of the officer's qualifications as a peace officer for implied consent purposes.

Affirmed.