Hewitt v. Commissioner of Public Safety

352 N.W.2d 75, 1984 Minn. App. LEXIS 3334
CourtCourt of Appeals of Minnesota
DecidedJuly 17, 1984
DocketNo. CX-83-1784
StatusPublished
Cited by1 cases

This text of 352 N.W.2d 75 (Hewitt v. Commissioner of Public Safety) is published on Counsel Stack Legal Research, covering Court of Appeals of Minnesota primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hewitt v. Commissioner of Public Safety, 352 N.W.2d 75, 1984 Minn. App. LEXIS 3334 (Mich. Ct. App. 1984).

Opinion

OPINION

CRIPPEN, Judge.

The trial court sustained revocation of appellant's drivers license due to his refusal of implied consent testing, and this appeal followed. Appellant contends a demand for testing and an earlier demand for a screening test were improper due primarily to the absence of an officer’s personal observation of his driving conduct. We affirm.

FACTS

On August 19, 1983 at approximately 5:15 a.m., Trooper Brad Anderson and a colleague were dispatched to a single car accident at the River Bridge on Interstate Highway 35-W. The colleague arrived first and found the car “totaled out.” Behind the wrecked ear was a blue Chevy Camero.

Appellant, Robert Hewitt, was a witness present at the scene. Anderson was asked by his colleague to speak to Hewitt and “see about the possibility” of giving Hewitt a preliminary breath test. Hewitt and Anderson discussed the accident. Anderson testified that Hewitt said:

He (Hewitt) had been in front of the other vehicle and the other vehicle had spun out behind him striking a guard rail. He (Hewitt) had exited and come back around .... and then come back up behind it because he knew the driver of the other vehicle.

Hewitt said he was the sole occupant of the Camero.

At the time of this conversation, Hewitt and Anderson stood three feet apart. Anderson smelled “a real strong odor of alcoholic beverage on Hewitt’s breath,” and [77]*77consequently asked if Hewitt had been drinking that night. Hewitt replied that he had been drinking and that he had been at an all-night stag party with the driver of the wrecked vehicle. Anderson also noticed that Hewitt’s eyes were bloodshot and watery and that his speech appeared to be slurred.

Anderson asked Hewitt to take a preliminary breath test. The instrument was calibrated to read fail at 0.10 alcohol concentration. Hewitt agreed to take the test and failed. Concluding that Hewitt was under the influence of alcohol, Anderson placed Hewitt under arrest.

Anderson began the implied consent advisory at the scene of the accident and completed it at the Minneapolis Police Department Testing Facility. Anderson and Hewitt left the accident scene so that Hewitt could use a phone at the Police Department. Hewitt made two calls and then refused to take the breathalizer test because he did not believe he drank enough to be DWI.

On cross-examination Anderson testified that he did not see Hewitt driving, operating or in physical control of a vehicle that evening. Nor is this a case where another officer saw and reported to Anderson that Hewitt was operating or driving a vehicle in an erratic manner or that he was in physical control of the vehicle in an intoxicated state. See State v. Jensen, 351 N.W.2d 29 (Minn.Ct.App.1984).

Testimony showed that Anderson had been a State Trooper for four years and had seen people under the influence of alcohol several hundred times annually.

ISSUES

1. Did the State Trooper properly require appellant to submit to a preliminary screening test?

2. Did the State Trooper properly invoke the Implied Consent Statute?

ANALYSIS

To properly demand a preliminary screening test an officer must have “reason to believe” a DWI violation has occurred. Minn.Stat. § 169.121(6) (1982). To properly demand implied consent testing an officer must have “reasonable and probable grounds to believe” such an offense has occurred. § 169.123(2) (Supp.1983). In State v. Olson, 342 N.W.2d 638 (Minn.Ct.App.1984), we stated these standards on the determination of probable cause for implied consent testing purposes:

There is no formula by which to judge the reasonableness of a given case. Each must be decided on its own facts and circumstances. In reviewing an officer’s probable cause determination ‘great deference’ should be paid by reviewing courts, (citations omitted)
An after-the-fact scrutiny should not take the form of a de novo review. Rather, the duty of the reviewing court is simply to ensure that the officer had a substantial basis for concluding that probable cause existed at the time of invoking the implied consent law. (citation omitted)

Id. at 640, 641.

There was ample cause for Trooper Anderson to believe appellant was “under the influence of alcohol,” one of the two elements of a DWI offense. This conclusion has regard for the training and experience of the trooper and his observations of appellant, including appellant’s remarks about prior drinking activity.

Trooper Anderson knew that appellant drove to the scene of the accident and departed from his vehicle. This conduct did not occur in the presence of Trooper Anderson. Appellant contends it is significant that the legality of the officer’s arrest depended upon commission of an offense “in his presence” under Minn.Stat. § 629.-341(1) (1982).

Minn.Stat. § 169.121(6) (1982) states:

Wlíen 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 [78]*78motor vehicle, that the driver may be violating or has violated subdivision 1, he may require the driver to provide a sample of his breath for a preliminary screening test using a device approved by the commissioner of public safety for this purpose.

Relying on the reference to the “manner” of a person’s conduct, appellant contends the officer must observe the conduct. This is a constrained and improper view of the statutory language. The statute allows the police officer to form a reasonable belief about a violation from the manner in which a person is acting on departure from a motor vehicle, and the statute does not suggest that actions are limited to those of physically making an exit from the vehicle. Additionally, the Minnesota Supreme Court has observed that the statute clearly permits consideration of past conduct not witnessed by the officer. State, Department of Public Safety v. Juncewski, 308 N.W.2d 316 (Minn.1981). The Court stated:

That statute [Minn.Stat. § 169.121(6)] clearly refers to both present and past conduct. Past conduct includes conduct not witnessed by the officer. Any other construction would render the “is driving ... or has driven ...” language meaningless. The use of the past tense can only refer to situations where the officer did not witness the actual driving, but nevertheless had a specific and articula-ble suspicion of a violation of Minn.Stat. § 169.121 (1980).

Minn.Stat. § 169.123(2)(a) (Supp.1983), the Implied Consent Statute, reads in part:

The test shall be administered at the direction of a peace officer.

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Related

Miller v. Commissioner of Public Safety
354 N.W.2d 573 (Court of Appeals of Minnesota, 1984)

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Bluebook (online)
352 N.W.2d 75, 1984 Minn. App. LEXIS 3334, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hewitt-v-commissioner-of-public-safety-minnctapp-1984.