Opinion
No. C0-01-1230.
Filed January 15, 2002.
Appeal from the District Court, Renville County, File No. C701257.
John E. Mack, Mack Daby, P.A., (for appellant)
Mike Hatch, Attorney General, Matthew Frank, Assistant Attorney General, (for respondent)
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
UNPUBLISHED OPINION
Appellant contends that the trial court, in sustaining the revocation of his driver's license, made an erroneous finding that the police had adequate cause to request a preliminary test of appellant's breath, a step that led to evidence of his intoxication and his arrest. Appellant insists that this is the classic case for determining whether mere drinking and driving, without more, permits an officer to administer a preliminary breath test. Because the record shows other cause for the officer's choice, we affirm.
FACTS
On February 24, 2001, police approached three snowmobiles parked on the wrong side of the street. One of the snowmobilers sped away. When the officer approached the other two, appellant Alan Grosklags had also stopped his snowmobile alongside the others. One of the snowmobilers was obviously intoxicated, and all three smelled of alcohol. Appellant confirmed that he had had a few drinks that night. The officer made appellant take a preliminary breath test (PBT), which registered over .10. The officer then arrested appellant for driving while under the influence. On May 25, 2001, the trial court upheld the commissioner's revocation of appellant's driver's license.
DECISION 1.
Appellant argues that mere drinking and driving do not constitute a sufficient basis for an officer to require a PBT. Minn. Stat. § 169A.51 (2000) permits an officer to require a driver to take a blood test when the officer has probable cause to believe the driver is impaired and the driver (1) has been arrested for driving while impaired; (2) was involved in a car accident; (3) refused to take a PBT; or (4) failed a PBT. Minn. Stat. § 169A.41, subd. 1 (2000), provides the basis for requiring a PBT:
When a peace officer has reason to believe from the manner in which a person is driving, operating, controlling, or acting upon departure from a motor vehicle, or has driven, operated, or controlled a motor vehicle, that the driver may be violating or has violated section 169A.20 (driving while impaired) * * * the officer may require the driver to provide a sample of the driver's breath for a [PBT] * * * .
"[A]n 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, operating or controlling a motor vehicle while under the influence of an intoxicating beverage." State v. Vievering, 383 N.W.2d 729, 730 (Minn.App. 1986) (finding sufficient basis for PBT based on equipment violations, bloodshot and watery eyes, and odor of alcohol on driver's breath), review denied (Minn. May 16, 1986); Hagar v. Comm'r of Pub. Safety, 382 N.W.2d 907, 910-11 (Minn.App. 1986) (finding sufficient basis for PBT when officer pulled driver over for missing headlight and license plate, observed driver's bloodshot and watery eyes, and smelled alcohol on driver's breath); State, Dep't of Pub. Safety v. Juncewski, 308 N.W.2d 316, 321 (Minn. 1981) (finding articulable suspicion when officers discovered driver passed out inside his pickup truck, smelling of alcohol, and unable to respond to questions). The implied-consent laws are remedial in nature, intended for the protection of the public, and should be liberally construed toward that end. Hewitt v. Comm'r of Pub. Safety, 352 N.W.2d 75, 79 (Minn.App. 1984). When the facts are undisputed, whether an officer has a valid basis to request a PBT is a question of law, which this court reviews de novo. Berge v. Comm'r of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).
Appellant argues that, although the officer knew appellant had been drinking and driving, the officer had no reason to conclude that appellant was impaired. But as the trial court observed, the record shows more. First, the officer had reason to believe that the snowmobilers he had come upon were intoxicated because one of them fled the scene, one of them was obviously intoxicated, and all smelled of alcohol. Second, the officer had reason to believe that appellant was a companion to the others because appellant was driving so closely to them and because appellant knew the name of the driver who had fled. In addition, appellant smelled of alcohol and admitted having drunk alcohol earlier.
Although the conduct of others cannot determine appellant's state of intoxication, given the limited question of whether the officer had a reasonable suspicion to require a PBT, we deem it appropriate for the officer to look at appellant's company and the surrounding circumstances. See, e.g., Hewitt, 352 N.W.2d at 77-78 (finding reasonable suspicion to require a PBT of witness to accident when witness, besides having visible indicia of intoxication, admitted to drinking with accident victim at a party earlier that night). Finally, the entire group was involved in illegal activity, operating snowmobiles against traffic after dark. Given all the circumstances of this case, the officer had a reasonable suspicion to make appellant submit to a breath test.
Minn. Stat. § 84.87, subd. 1(a) (2000), provides: "No person shall operate a snowmobile within the right-of-way of any trunk, county state aid, or county highway [after dark] except on the right-hand side of such right-of-way and in the same direction as the highway traffic * * * ."
2.
The commissioner contends that the issue of grounds to request the PBT is not properly before this court because the trial court's proceedings dealt with the more general issue of probable cause for arrest. This court will not consider issues that the trial court did not decide in an implied-consent hearing. Berge v. Comm'r of Pub. Safety, 588 N.W.2d 177, 179 (Minn.App. 1999)
The commissioner argues that whether the officer had probable cause to arrest appellant for driving while under the influence is distinct from whether the officer had a reasonable basis for requiring a PBT. Nevertheless, the commissioner acknowledges that trial counsel fully explored the reasons behind the officer's conduct during the hearing. The record also shows that appellant's counsel alluded to cause both at the time of the arrest and at the time of the PBT request, and both counsel discussed reasonable suspicion. We conclude that the issue was properly raised.