Opinion
No. C1-97-1196.
Filed December 16, 1997.
Appeal from the District Court, Stearns County, File No. C197490.
Stephen R. O'Brien, (for appellant).
Hubert H. Humphrey III, Attorney General, Jeffrey S. Bilcik, Asst. Attorney General, (for respondent).
Considered and decided by Lansing, Presiding Judge, Huspeni, Judge, and Willis, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1996).
UNPUBLISHED OPINION
Respondent Commissioner of Public Safety revoked appellant's driver's license. She challenges the district court's decision to uphold the revocation. Because we agree with the court that appellant was in physical control of her vehicle while under the influence of alcohol, we affirm.
FACTS
On January 20, 1997, appellant Jennifer Monson lost control of the vehicle she was driving and went into a ditch. The owner of the vehicle, who was a passenger at the time, walked to a gas station and called a tow truck. Appellant went to a nearby restaurant and consumed two martinis in a 30-45 minute period.
Both appellant and the owner then returned to the vehicle to await the tow truck. A Stearns County Sheriff's Department deputy arrived at the scene and discussed the incident with the owner. When the tow truck arrived, its driver informed the parties that someone had to be inside the vehicle to steer it while it was being removed from the ditch. Appellant complied, and the vehicle was removed.
The police officer approached appellant while she was still behind the wheel and noticed "a slight glaze to her eyes" and a slight odor of alcohol. The officer asked appellant if she had been drinking. She told the officer what she had to drink that evening and was then asked to submit to a preliminary breath test (PBT), which she failed.
After appellant refused to submit to any field sobriety tests, she was arrested on suspicion of operating a vehicle under the influence of alcohol. At the police station, appellant failed an Intoxilyzer test and the Commissioner of Public Safety revoked her driver's license. The district court upheld the revocation.
DECISION
To justify revocation of a driver's license, the Commissioner of Public Safety must show: (1) that the arresting officer had probable cause to believe that the driver was driving, operating, or in physical control of the vehicle while under the influence of alcohol; and (2) that the driver was in physical possession of the vehicle. Snyder v. Commissioner of Pub. Safety , 496 N.W.2d 858, 860 (Minn.App. 1993).
Appellant challenges the holding that she had physical control of the vehicle. Whether an individual has physical control of a vehicle is a question of law. See id. "Conclusions of law will be overturned only upon a determination that the trial court has erroneously construed and applied the law to the facts of the case." Dehn v. Commissioner of Pub. Safety , 394 N.W.2d 272, 273 (Minn.App. 1986).
Physical control is present 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) (holding that a driver was in physical control of a vehicle that was stuck in a snow-filled ditch, not running, with the keys in the driver's pocket). A car incapable of immediate, self-propelled mobility remains a potential traffic hazard. Id. at 838.
Appellant argues that Starfield does not apply because it involves criminal prosecution instead of civil revocation. Appellant cites no authority for this proposition. In fact, in Snyder , a case relied upon by appellant, this court used the definition of physical control from Starfield to find a lack of physical control for purposes of a civil revocation. Snyder , 496 N.W.2d at 860. Starfield applies.
Appellant contends that because her vehicle was inoperable, it was not a source of danger. However, she ignores the fact that she was behind the wheel while the keys were in the ignition, for the purpose of steering the vehicle as it was being removed from the ditch. Appellant had more physical control of her vehicle than the driver in Starfield . See also State v. Duemke , 352 N.W.2d 427 (Minn.App. 1984) (holding that a driver, slumped over the steering wheel of a vehicle that was stuck in a ditch, not running, but with the keys in the ignition, was in physical control).
Appellant asserts that there is no evidence that the keys to the vehicle were in the ignition. However, the owner of the vehicle testified that even though he did not check to see if they were in the ignition, they always are because he uses a "clicker." Appellant also testified that "David always keeps the vehicle keys in the ignition." And finally, arresting officer Phillip Meemken testified that the keys were in the ignition.
Appellant contends that this case is factually similar to both Roberts v. Commissioner of Pub. Safety , 371 N.W.2d 605 (Minn.App. 1985), review denied (Minn. Oct. 11, 1985), and State, City of Falcon Heights v. Pazderski , 352 N.W.2d 85 (Minn.App. 1984). We disagree. In Roberts , a driver was held not to have physical control of his vehicle when he was placed in the front seat by some friends who had disconnected the vehicle's engine coil wire. Id. at 606. In Pazderski , a driver who chose to spend the night sleeping in his vehicle while it was parked in his driveway was also held not to have physical control of his vehicle. Id. at 86-87.
Both Roberts and Pazderski are distinguishable. In both cases, this court noted that a finding of physical control has "common threads" including:
1) the motor running; or
2) keys in the ignition; or
3) cars parked or stalled on or near the roadway; or
4) cars parked in some predicament such as a ditch, swamp or snow bank * * * .
Roberts , 371 N.W.2d at 607; Pazderski , 352 N.W.2d at 88.
In this case, the car was parked in a ditch while the keys were still in the ignition, facts that are both "common threads" of a finding of physical control. In addition, appellant admits that she got behind the wheel of the car at the direction of the tow truck driver because "[s]omebody had to steer." The vehicle in this case was more of "a source of danger to the operator, to others, or to property" than the vehicles in either Roberts or Pazderski .
The court did not err in finding that appellant had physical control of the vehicle.