State of Minnesota, Appellant, vs. Andrea Jon Madsen, 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This opinion will be unpublished and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

A03-514

 

State of Minnesota,

Appellant,

 

vs.

 

Andrea Jon Madsen,

Respondent.

 

 

Filed December 9, 2003

Reversed and remanded Hudson, Judge

 

Olmsted County District Court

File No. K1-02-3844

 

 

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

 

Terry L. Adkins, Rochester City Attorney, Peter D. Magnuson, SaraJane M. Olson, Assistant City Attorneys, 201 Southeast Fourth Street, Room 247, Rochester, Minnesota 55904-3780 (for appellant)

 

Mark A. Ostrem, Patterson, Ostrem & Swisher, 7 Fourth Street Southeast, Rochester, Minnesota 55904 (for respondent)

 

 

            Considered and decided by Harten, Presiding Judge; Hudson, Judge; and Crippen, Judge.*

U N P U B L I S H E D   O P I N I O N

HUDSON, Judge

            The state appeals the district court's pretrial order suppressing the result of a preliminary breath test and dismissing DWI charges against respondent Andrea Jon Madsen.  Because the arresting officer had a sufficiently articulable suspicion that Madsen was driving while impaired, we reverse and remand.

FACTS

            On September 29, 2002, shortly after 1:00  a.m., a Rochester police officer stopped a vehicle for traveling 47 miles an hour in a 30 mile-per-hour residential zone.  The driver was respondent Andrea Madsen.  When the officer approached the vehicle, he smelled a strong odor of alcohol coming from the vehicle, and noticed that Madsen's eyes were watery and bloodshot. 

            The officer asked Madsen to exit the vehicle, and administered three field sobriety tests: the horizontal gaze nystagmus test, the "walk and turn" test, and the "one-legged stand" test.  Based on his observations of Madsen's performance on the tests, the officer judged her to be impaired and administered a preliminary breath test (PBT).  The PBT showed a red light, which indicated to the officer that Madsen had a blood alcohol concentration (BAC) over the legal limit.  He arrested Madsen and took her to the police station.  A subsequent breath test showed that Madsen's BAC was .12.  Madsen was charged with third-degree driving while impaired, third-degree driving with excess alcohol concentration, and speeding/inattentive driving.

            Before trial, Madsen filed a motion to dismiss the charges against her, arguing that the officer did not have probable cause to administer the PBT.  A contested omnibus hearing was held March 19 and 26, 2003.  The officer testified as to the events of the evening and what led him to believe that Madsen was impaired and to administer the PBT.  After hearing the testimony and viewing a video of the field sobriety tests recorded by the officer's squad car camera, the district court granted Madsen's motion to suppress the PBT and all subsequent evidence.  The district court found that Madsen did not demonstrate sufficient indicia of intoxication to justify administering a PBT.  The charges against Madsen were dismissed.  This appeal follows.

D E C I S I O N

            When the state appeals a pretrial order suppressing evidence, it must clearly and unequivocally show both that the "trial court's order will have a critical impact on the state's ability to prosecute the defendant successfully and that the order constituted error."  State v. Scott, 584 N.W.2d 412, 416 (Minn. 1998) (quotations omitted).  Here, suppression of the PBT, arrest, and later breath test resulted in dismissal of the state's case.  Dismissal of a complaint constitutes a "critical impact" on the state's case.  State v. Hanson, 583 N.W.2d 4, 5-6 (Minn. App. 1998), review denied (Minn. Oct. 29, 1998).  The critical impact prong is met here, and we must determine whether the suppression of the PBT was error.

            An officer may request a PBT if he possesses "specific and articulable facts that form a basis to believe that a person is or has been driving . . . a motor vehicle while under the influence of an intoxicating beverage."  State v. Vievering, 383 N.W.2d 729, 730 (Minn. App. 1986), review denied (Minn. May 16, 1986).  Articulable suspicion includes evidence of sufficient indicia of intoxication.  State v. Driscoll, 427 N.W.2d 263, 265-66 (Minn. App. 1988).  And, articulable suspicion is an objective standard that must be "determined under the totality of the circumstances."  Paulson v. Comm'r of Pub. Safety, 384 N.W.2d 244, 246 (Minn. App. 1986). 

            Here, the officer immediately noted the strong smell of alcohol coming from the car, and that Madsen's eyes were bloodshot and watery.  These indicia alone would be enough to sustain a request for a PBT.  See, e.g., Holtz v. Comm'r of Pub. Safety, 340 N.W.2d 363, 365 (Minn. App. 1983).  But the officer here had further indicia of intoxication.  Madsen was stopped for driving 17 miles over the speed limit.  When the officer administered the roadside sobriety tests, he noticed that her eyes did not follow his finger smoothly and that her balance was not steady.  These specific, articulable facts led him to conclude that Madsen was impaired by alcohol and to administer the PBT. 

The district court examined the videotape of each of the roadside sobriety tests Madsen performed to look for confirmation of the officer's observations.  Notwithstanding the district court's assessment of Madsen's performance after viewing the videotape, we believe the officers on the scene are in the best position to evaluate the circumstances as a whole at the time of the stop.  Here, the officer had specific, articulable facts that led him to believe Madsen was impaired and to administer the PBT.  These articulable facts satisfied the law, and it was error for the district court to suppress the results of the PBT, the arrest, and the subsequent breath test.  We therefore reverse, reinstate the complaint against Madsen, and remand for further proceedings.

Reversed and remanded.

 

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