Scott Larry Rademacher, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent.

Scott Larry Rademacher, petitioner, Appellant, vs. Commissioner of Public Safety, Respondent. A06-2245, Court of Appeals Unpublished Decision, December 18, 2007.

This opinion will be unpublished and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
A06-2245
 
Scott Larry Rademacher, petitioner,
Appellant,
 
vs.
 
Commissioner of Public Safety,
Respondent.

 

Filed December 18, 2007

Affirmed

Willis, Judge

 

Dakota County District Court

File No. C2-06-008398

 

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

 

Lori Swanson, Attorney General, Peter D. Magnuson, Assistant Attorney General, 1800 Bremer Tower, 445 Minnesota Street, St. Paul, MN 55101-2134 (for respondent)

 

            Considered and decided by Peterson, Presiding Judge; Willis, Judge; and Wright, Judge.

U N P U B L I S H E D   O P I N I O N

WILLIS, Judge

            Appellant challenges the district court's decision sustaining the revocation of his driver's license, arguing that (a) the officer unlawfully seized him; (b) there was no showing that he was driving or in actual physical control of his vehicle; (c) his right to counsel was not vindicated; and (d) his right to an additional test was not vindicated.  We affirm. FACTS

 

            Shortly before noon on Monday, June 19, 2006, a Hastings police officer received a report that appellant Scott Larry Rademacher was possibly driving while impaired.  The officer responded, and as he was driving past an auto-parts store, he saw Rademacher's truck parked in a parking lot in front of the auto-parts store and a bar.  The officer parked his squad car on the driver's side of Rademacher's pickup truck; the squad car's emergency lights were not on, and the squad car did not block the truck.  The officer saw Rademacher leave the bar, walk toward his truck, unlock the door, get into the truck, and sit down in the driver's seat.  The officer then approached Rademacher and, when he spoke with him, smelled the odor of an alcoholic beverage, observed that Rademacher's eyes were bloodshot and glassy, and noticed that his speech was slurred.  After having Rademacher perform several field sobriety tests, the officer arrested him for driving while impaired (DWI).

            While still in the parking lot, the officer read the implied-consent advisory to Rademacher, who said that he would like to speak with an attorney.  The officer transported him to the jail and provided him with a telephone and telephone books.  Rademacher was unable to find the telephone number for the particular attorney with whom he wanted to speak, and he asked the officer if the officer would retrieve a business card with the attorney's telephone number from Rademacher's truck.  The officer declined and instead told Rademacher he could continue using the telephone books to find an attorney.  After having the use of the telephone and telephone books for 55 minutes, Rademacher told the officer that he was finished using the telephone.  He agreed to submit to a breath test, which showed an alcohol concentration of .08 or more. 

            After the breath test, Rademacher told the officer that he had been told to request an additional test, and the officer told him he could do so.  Rademacher was in the intake area near the telephone that he had previously used, and, when the officer left the area, Rademacher was using the telephone.  Rademacher did not obtain an additional test.

            Rademacher's driver's license was revoked under the implied-consent law and he petitioned for judicial review.  After the hearing, the district court sustained the revocation, and this appeal follows.

D E C I S I O N

            When reviewing findings of fact, this court defers to the district court's assessment of the credibility of witnesses and will not set findings aside unless they are clearly erroneous.  Frost v. Comm'r of Pub. Safety, 348 N.W.2d 803, 804 (Minn. App. 1984).  Conclusions of law will be reversed only if the district court "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).

I.         Rademacher's seizure was supported by reasonable suspicion.

            Rademacher argues first that the officer seized him by parking his squad car perpendicular to the driver's-side door of Rademacher's truck and that this seizure was not supported by reasonable suspicion.  We first review the facts regarding how the officer parked his squad car.  Rademacher argues the officer pulled "right up to appellant's door."  The district court found that the "squad car was parked to the driver's side" of Rademacher's truck.  This finding is supported by the evidence and is not clearly erroneous.  We further note that the squad car was parked far enough away to allow Rademacher to enter the truck using the driver's-side door.

            We next address whether a seizure occurred as a result of the officer parking his squad car and approaching Rademacher.  Not all contacts between citizens and police officers are seizures.  In re Welfare of E.D.J., 502 N.W.2d 779, 781 (Minn. 1993).  Generally, "it does not by itself constitute a seizure for an officer to simply walk up and talk to a person standing in a public place or to a driver sitting in an already stopped car."  State v. Vohnoutka, 292 N.W.2d 756, 757 (Minn. 1980).  A seizure occurs when "an objectively reasonable person . . . would have believed that he or she was neither free to disregard the officer's questions nor free to terminate the encounter . . . ."  State v. Cripps, 533 N.W.2d 388, 391 (Minn. 1995).

            Various acts by an officer can constitute such a show of authority that a seizure occurs.  See State v. Pfannenstein, 525 N.W.2d 587, 588 (Minn. App. 1994), review denied (Minn. Mar. 14, 1995).  These can include "the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the use of language or tone of voice indicating that compliance with the officer's request might be compelled."  Id. (quotation omitted).  Other such acts are "boxing the car in, approaching it on all sides by many officers or use of flashing lights as a show of authority . . . ."  State v. Sanger, 420 N.W.2d 241, 243 (Minn. App. 1988) (quotation omitted).

            The district court found that because the officer did not activate his emergency lights and his squad car did not block Rademacher's truck, no seizure occurred when the officer parked his squad car.  We not only agree but also note that when the officer parked his squad car, Rademacher was not in his truck.  It was only after Rademacher got into his truck that the officer approached.  Therefore, this is a case in which an officer approached an already stopped vehicle, which is not a seizure.  See Vohnoutka, 292 N.W.2d at 757.

            Rademacher, however, contends next that a seizure occurred when the officer asked to see his driver's license and insurance information, and that this occurred before the officer observed any indicia of intoxication that might have provided reasonable suspicion to support the seizure.  The district court ruled that any seizure that may have occurred after the officer first approached Rademacher's vehicle was supported by indicia of intoxication that the officer observed while speaking with Rademacher.

            An officer may make a temporary seizure of a person if the officer can articulate specific, articulable facts to show that the officer had "a particularized and objective basis for suspecting the seized person of criminal activity."  Cripps, 533 N.W.2d at 391.  The officer "may make this assessment on the basis of all the circumstances and may draw inferences and deductions that might elude an untrained person."  Id.  A mere hunch is insufficient.  Id. at 391-92.  But the odor of alcohol and watery, glassy eyes may provide the basis for a seizure.  Crawford v. Comm'r of Pub. Safety, 441 N.W.2d 837, 839 (Minn. App. 1989).

            The district court found that as the officer was speaking with Rademacher, the officer smelled the odor of an alcoholic beverage, saw that Rademacher's eyes were bloodshot and glassy, and noticed that his speech was slurred.  It ruled that at that point a seizure of Rademacher was supported by the indicia of intoxication observed by the officer while speaking with him.  The district court's findings are supported by the testimony of the officer on both direct and cross-examination and reasonable inferences that the court may have drawn from that testimony, and are not clearly erroneous.  Based on those findings, the court properly ruled that the seizure was based on reasonable suspicion.

II.        The evidence shows that Rademacher was in physical control of his vehicle.

            Next, Rademacher challenges the decision that he was in physical control of his vehicle.  Under the implied-consent law, an officer may request a chemical test whenever the officer has probable cause to believe that the person was driving, operating, or in physical control of a motor vehicle while impaired.  Minn. Stat. § 169 A. 51, subd. 1(b) (2004).  If a driver asserts at the implied-consent hearing that he or she was not actually driving or in physical control of a motor vehicle, the Commissioner of Public Safety must prove this fact by a fair preponderance of the evidence.  Llona v. Comm'r of Pub. Safety, 389 N.W.2d 210, 212 (Minn. App. 1986).

            "[P]hysical control is meant to cover situations where an inebriated person is found in a parked vehicle under circumstances where the car, without too much difficulty, might again be started and become a source of danger to the operator, to others, or to property."  State v. Starfield, 481 N.W.2d 834, 837 (Minn. 1992).  It is intended "as a preventive measure to deter the drunk driver from again driving."  Id.  It is to be given "the broadest possible effect."  Id. at 836 (quotation omitted).

            Rademacher contends that in cases in which the appellate courts have held that a driver was in physical control of a vehicle, circumstances existed "indicating to the officer arriving on the scene that the driver had recently put the vehicle there through erratic driving," such as a vehicle with its motor running; a vehicle with keys in its ignition; a stalled or parked vehicle near a roadway; or a vehicle stuck in a ditch, swamp, or snow bank.  Roberts v. Comm'r of Pub. Safety, 371 N.W.2d 605, 607 (Minn. App. 1985) (quotation omitted), review denied (Minn. Oct. 11, 1985).  By contrast, Rademacher contends, the only evidence here showed that he walked toward his truck, took out his keys, unlocked the door, and climbed in.  He did not drive the truck in the presence of the officer, the motor was not running, and he did not operate any of the truck's controls that would have allowed the truck to move.  Further, there was no evidence that he had driven to or from the parking spot.  Consequently, he asserts, the district court erred in finding physical control.

            This court had no difficulty holding that physical control existed on similar facts:

                        [T]he evidence indicates that appellant was, in fact, in actual physical control of the motor vehicle.  He was found seated in the driver's seat of the pickup truck and the keys were within easy reach in the glove compartment.  The officer reasonably could have believed that appellant would set out on an inebriated journey at any moment, posing a risk to himself and others.

 

LaBeau v. Comm'r of Pub. Safety, 412 N.W.2d 777, 780 (Minn. App. 1987).  Similarly, here, there was actual physical control.  Rademacher contends that the issue before the district court was whether he was driving the vehicle; but the test is whether he was driving, operating, or in physical control of a vehicle, and, again, the evidence shows that he was in physical control of his truck.  See Llona, 389 N.W.2d at 212 (providing commissioner must prove either driving or physical control).

III.      Rademacher's right to counsel was vindicated.

            Next, Rademacher argues that the officer violated Rademacher's right to counsel of his own choosing.  A driver arrested for DWI in Minnesota has a limited right to counsel before deciding whether to submit to a chemical test, as long as the "consultation does not unreasonably delay the administration of the test."  Friedman v. Comm'r of Pub. Safety, 473 N.W.2d 828, 835 (Minn. 1991) (quotation omitted).  "The right to counsel will be considered vindicated if the person is provided with a telephone prior to testing and given a reasonable time to contact and talk with counsel.  If counsel cannot be contacted within a reasonable time, the person may be required to make a decision regarding testing in the absence of counsel."  Id. (quotation omitted).

            Here, the district court found that because Rademacher was provided with a telephone and telephone books and was given 55 minutes to contact an attorney and that because it appeared that he actually spoke with an attorney who advised him at least to request an additional test, his limited right to counsel was vindicated.  But Rademacher contends that his right to counsel was not vindicated because he was not given the right to an attorney of his own choosing, citing the officer's refusal to return to Rademacher's pickup truck and retrieve the business card of an attorney whom Rademacher wanted to call.  Rademacher contends this is similar to a case in which an officer gave the driver a list of five pre-selected attorneys in the area and made him choose from that list; this court ruled that the driver's right to counsel was not vindicated.  McNaughton v. Comm'r of Pub. Safety, 536 N.W.2d 912, 915 (Minn. App. 1995).  Unlike the driver in McNaughton, however, Rademacher had full access to a telephone and telephone books.  There is no support for the argument that the officer had to return to Rademacher's vehicle and retrieve the business card.  Rademacher's right to counsel was fully vindicated.

IV.      Rademacher's right to an additional test was not prevented or denied by the officer.

 

            Finally, Rademacher argues that the district court erred when it found that his right to an additional test was vindicated.  Under the implied-consent law, a driver who submits to a chemical test "has the right to have someone of the person's own choosing administer a chemical test or tests in addition to any administered at the direction of a peace officer."  Minn. Stat. § 169 A. 51, subd. 7(b) (2004).  "The failure or inability to obtain an additional test or tests by a person does not preclude the admission in evidence of the test taken at the direction of a peace officer unless the additional test was prevented or denied by the peace officer."  Id.  Merely failing to assist a person in obtaining an additional test does not interfere with this right.  Haveri v. Comm'r of Pub. Safety, 552 N.W.2d 762, 765 (Minn. App. 1996), review denied (Minn. Oct. 29, 1996).  The only obligation that the officer has is to provide the person with a telephone.  Frost, 348 N.W.2d at 804.

            The district court found that after the chemical test was completed, Rademacher told the officer that he had been advised to request an additional test and the officer told him that he could do so.  At the time, Rademacher was in the intake area near the telephone that he had previously used and when the officer left, he was using the telephone.  The court found no evidence showing that Rademacher was prevented from using a telephone or that the police otherwise prevented him from obtaining an additional test.  These findings are not clearly erroneous.

            Affirmed.