This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-0510
Kayla Lashawn Berres, petitioner, Appellant,
vs.
Commissioner of Public Safety, Respondent
Filed February 23, 2015 Affirmed Worke, Judge
Kanabec County District Court File Nos. 33-CV-13-341, 33-CR-13-350
Robert J. Foley, III, Anthony J. Larson, Nick P. Granath, Minneapolis, Minnesota (for appellant)
Lori Swanson, Attorney General, Rory C. Mattson, Assistant Attorney General, St. Paul, Minnesota (for respondent)
Considered and decided by Reyes, Presiding Judge; Worke, Judge; and Johnson,
Judge.
UNPUBLISHED OPINION
WORKE, Judge
Appellant challenges the district court’s denial of her petition to rescind her
driver’s license revocation. We affirm. FACTS
On October 23, 2013, Deputy Bailey Miller was summoned to a fast-food
restaurant because an individual was sleeping in the lobby. When Deputy Miller arrived
an employee informed her that the individual had moved to her vehicle. Deputy Miller
observed appellant Kayla Lashawn Berres slumped over the center console. Deputy
Miller made contact with Berres and detected the odor of alcohol. The car was not
running and the keys were not in the ignition.
Deputy Miller asked Berres where she had come from. Berres told Deputy Miller
that she drove from the bowling alley, had gone through the drive-through on her way
home, and then parked her car so that she could use the restroom. Berres made no
mention of anyone who was or had been with her. Deputy Miller performed field
sobriety tests and then placed Berres under arrest. Berres was read the implied consent
advisory and submitted to a breath test which showed an alcohol concentration of about
.20.
Respondent Commissioner of Public Safety revoked Berres’s driving privileges.
At Berres’s rescission hearing, she presented a witness named John Armstrong who
testified that he received a call from Berres while she was still at the bowling alley that
night. Berres asked him to drive her home. Armstrong went to the bowling alley and
drove Berres’s vehicle to the restaurant. After the two arrived, they got into an argument.
Armstrong parked the vehicle, gave the keys to Berres and then walked away. Armstrong
saw Berres walk into the restaurant as he departed.
2 Berres testified that she did not recall that someone had given her a ride from the
bowling alley until after she was arrested and performed her own investigation. Berres
did recall that Armstrong had left her at the restaurant. Berres did not fully remember her
conversation with Deputy Miller. She recalled walking out of the restaurant, seeing law
enforcement, and then going to her car to retrieve her cigarettes, which were in the center
console. This, she explained, was why it appeared to Deputy Miller that she was slumped
over the center console. Berres did not know where her keys were at the time Deputy
Miller made contact, but she learned that she had left them in her purse in the restroom.
The district court denied Berres’s requested rescission, concluding that she was in
physical control of her vehicle. Berres appealed.
DECISION
Berres argues that the district court erred in concluding that she was in physical
control of her vehicle. The commissioner may revoke an individual’s driver’s license if
she was in physical control of a vehicle and had an alcohol concentration greater than .08.
Minn. Stat. § 169A.52, subd. 4(a) (2014). “Whether a person is in physical control of a
motor vehicle for purposes of the implied-consent law is a mixed question of law and
fact.” Snyder v. Comm’r of Pub. Safety, 744 N.W.2d 19, 21-22 (Minn. App. 2008). The
district court’s findings of fact will not be set aside unless clearly erroneous. Id. at 22.
Application of those facts to the question of physical control is one of law, reviewed de
novo. Id.
“[T]he [c]ommissioner must show by a fair preponderance of the evidence that the
person was in physical control of the vehicle.” Roberts v. Comm’r of Pub. Safety, 371
3 N.W.2d 605, 607 (Minn. App. 1985), review denied (Minn. Oct. 11, 1985). “[A] person
is in physical control of a vehicle if [s]he has the means to initiate any movement of that
vehicle, and [s]he is in close proximity to the operating controls of the vehicle.” State v.
Fleck, 777 N.W.2d 233, 236 (Minn. 2010). Physical control is “given the broadest
possible effect . . . to deter inebriated persons from getting into vehicles except as
passengers.” State v. Starfield, 481 N.W.2d 834, 836 (Minn. 1992) (quotation omitted).
“Mere presence in or about the vehicle is not enough for physical control; it is the overall
situation that is determinative.” Id. at 838. “We consider a number of factors in
determining whether a person is in physical control of a vehicle, including: the person’s
location in proximity to the vehicle; the location of the keys; whether the person was a
passenger in the vehicle; who owned the vehicle; and the vehicle’s operability.” Fleck,
777 N.W.2d at 236.
Berres first contends that the district court’s conclusion that she was in physical
control of her vehicle because she had “dominion” and “control” inappropriately
interpreted statutory requirements. She asserts that these terms are associated with
analysis of a possessory interest in property but are not appropriate in this context.
However, our caselaw uses these precise words to describe physical control of a vehicle.
State v. Duemke, 352 N.W.2d 427, 432 (Minn. App. 1984) (“The phrase ‘physical
control’ means being in a position to exercise dominion or control over the vehicle.”).
Furthermore, the district court concluded that Berres had dominion and control because
of the location of the keys, her proximity to the vehicle, and the absence of anyone else to
drive in her stead. These are considerations common to caselaw. See, e.g., Fleck, 777
4 N.W.2d at 236 (describing factors involved in an analysis of physical control, including
the location of keys, proximity to the vehicle, and whether the person is a passenger);
Starfield, 481 N.W.2d at 837-39 (same, and discussing situations in which only one
person is found in or near a vehicle); see also Snyder, 744 N.W.2d at 22-23 (citing cases
discussing similar factors).
Berres next argues that because she called Armstrong to arrange a ride home she
had no intent to operate her vehicle. But “[i]ntent to operate does not have to be shown
in order to find that an individual is in physical control.” Snyder, 744 N.W.2d at 22.
She further argues that an affirmance in this case would expose lawful conduct to
criminal prosecution and license revocation. Berres posits a hypothetical scenario in
which anyone possessing keys on her person at a bar with a parking lot would run afoul
of the law. Such a situation is far removed from the facts here, and each case of physical
control is analyzed according to its unique circumstances. See Starfield, 481 N.W.2d at
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This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2014).
STATE OF MINNESOTA IN COURT OF APPEALS A14-0510
Kayla Lashawn Berres, petitioner, Appellant,
vs.
Commissioner of Public Safety, Respondent
Filed February 23, 2015 Affirmed Worke, Judge
Kanabec County District Court File Nos. 33-CV-13-341, 33-CR-13-350
Robert J. Foley, III, Anthony J. Larson, Nick P. Granath, Minneapolis, Minnesota (for appellant)
Lori Swanson, Attorney General, Rory C. Mattson, Assistant Attorney General, St. Paul, Minnesota (for respondent)
Considered and decided by Reyes, Presiding Judge; Worke, Judge; and Johnson,
Judge.
UNPUBLISHED OPINION
WORKE, Judge
Appellant challenges the district court’s denial of her petition to rescind her
driver’s license revocation. We affirm. FACTS
On October 23, 2013, Deputy Bailey Miller was summoned to a fast-food
restaurant because an individual was sleeping in the lobby. When Deputy Miller arrived
an employee informed her that the individual had moved to her vehicle. Deputy Miller
observed appellant Kayla Lashawn Berres slumped over the center console. Deputy
Miller made contact with Berres and detected the odor of alcohol. The car was not
running and the keys were not in the ignition.
Deputy Miller asked Berres where she had come from. Berres told Deputy Miller
that she drove from the bowling alley, had gone through the drive-through on her way
home, and then parked her car so that she could use the restroom. Berres made no
mention of anyone who was or had been with her. Deputy Miller performed field
sobriety tests and then placed Berres under arrest. Berres was read the implied consent
advisory and submitted to a breath test which showed an alcohol concentration of about
.20.
Respondent Commissioner of Public Safety revoked Berres’s driving privileges.
At Berres’s rescission hearing, she presented a witness named John Armstrong who
testified that he received a call from Berres while she was still at the bowling alley that
night. Berres asked him to drive her home. Armstrong went to the bowling alley and
drove Berres’s vehicle to the restaurant. After the two arrived, they got into an argument.
Armstrong parked the vehicle, gave the keys to Berres and then walked away. Armstrong
saw Berres walk into the restaurant as he departed.
2 Berres testified that she did not recall that someone had given her a ride from the
bowling alley until after she was arrested and performed her own investigation. Berres
did recall that Armstrong had left her at the restaurant. Berres did not fully remember her
conversation with Deputy Miller. She recalled walking out of the restaurant, seeing law
enforcement, and then going to her car to retrieve her cigarettes, which were in the center
console. This, she explained, was why it appeared to Deputy Miller that she was slumped
over the center console. Berres did not know where her keys were at the time Deputy
Miller made contact, but she learned that she had left them in her purse in the restroom.
The district court denied Berres’s requested rescission, concluding that she was in
physical control of her vehicle. Berres appealed.
DECISION
Berres argues that the district court erred in concluding that she was in physical
control of her vehicle. The commissioner may revoke an individual’s driver’s license if
she was in physical control of a vehicle and had an alcohol concentration greater than .08.
Minn. Stat. § 169A.52, subd. 4(a) (2014). “Whether a person is in physical control of a
motor vehicle for purposes of the implied-consent law is a mixed question of law and
fact.” Snyder v. Comm’r of Pub. Safety, 744 N.W.2d 19, 21-22 (Minn. App. 2008). The
district court’s findings of fact will not be set aside unless clearly erroneous. Id. at 22.
Application of those facts to the question of physical control is one of law, reviewed de
novo. Id.
“[T]he [c]ommissioner must show by a fair preponderance of the evidence that the
person was in physical control of the vehicle.” Roberts v. Comm’r of Pub. Safety, 371
3 N.W.2d 605, 607 (Minn. App. 1985), review denied (Minn. Oct. 11, 1985). “[A] person
is in physical control of a vehicle if [s]he has the means to initiate any movement of that
vehicle, and [s]he is in close proximity to the operating controls of the vehicle.” State v.
Fleck, 777 N.W.2d 233, 236 (Minn. 2010). Physical control is “given the broadest
possible effect . . . to deter inebriated persons from getting into vehicles except as
passengers.” State v. Starfield, 481 N.W.2d 834, 836 (Minn. 1992) (quotation omitted).
“Mere presence in or about the vehicle is not enough for physical control; it is the overall
situation that is determinative.” Id. at 838. “We consider a number of factors in
determining whether a person is in physical control of a vehicle, including: the person’s
location in proximity to the vehicle; the location of the keys; whether the person was a
passenger in the vehicle; who owned the vehicle; and the vehicle’s operability.” Fleck,
777 N.W.2d at 236.
Berres first contends that the district court’s conclusion that she was in physical
control of her vehicle because she had “dominion” and “control” inappropriately
interpreted statutory requirements. She asserts that these terms are associated with
analysis of a possessory interest in property but are not appropriate in this context.
However, our caselaw uses these precise words to describe physical control of a vehicle.
State v. Duemke, 352 N.W.2d 427, 432 (Minn. App. 1984) (“The phrase ‘physical
control’ means being in a position to exercise dominion or control over the vehicle.”).
Furthermore, the district court concluded that Berres had dominion and control because
of the location of the keys, her proximity to the vehicle, and the absence of anyone else to
drive in her stead. These are considerations common to caselaw. See, e.g., Fleck, 777
4 N.W.2d at 236 (describing factors involved in an analysis of physical control, including
the location of keys, proximity to the vehicle, and whether the person is a passenger);
Starfield, 481 N.W.2d at 837-39 (same, and discussing situations in which only one
person is found in or near a vehicle); see also Snyder, 744 N.W.2d at 22-23 (citing cases
discussing similar factors).
Berres next argues that because she called Armstrong to arrange a ride home she
had no intent to operate her vehicle. But “[i]ntent to operate does not have to be shown
in order to find that an individual is in physical control.” Snyder, 744 N.W.2d at 22.
She further argues that an affirmance in this case would expose lawful conduct to
criminal prosecution and license revocation. Berres posits a hypothetical scenario in
which anyone possessing keys on her person at a bar with a parking lot would run afoul
of the law. Such a situation is far removed from the facts here, and each case of physical
control is analyzed according to its unique circumstances. See Starfield, 481 N.W.2d at
838 (“[I]t is the overall situation that is determinative.”). Also, our law is concerned with
inebriated persons becoming drivers, not passengers. See id. at 837-38 (“It is . . . no
crime for an intoxicated person to be . . . a passenger. A passenger . . . is someone who is
merely along for the ride. When, however, only one person is found . . . , the question
arises whether that person is a passenger or a person in physical control of the motor
vehicle.”). If the occupants of Berres’s hypothetical bar were passengers, they would
face little danger of prosecution or license revocation.
Lastly, Berres argues that the district court’s statement that she was “likely” to
drive is clearly erroneous. Berres labels this a “finding,” but this word is pulled from a
5 sentence contained within a portion of the district court’s order which is simply a
summarizing paragraph: “She had the means to complete her journey home and was
likely to do so given that she was parked at a fast food restaurant and without a place to
stay for the night.” Berres offers no support for the proposition that likelihood of driving
is needed to reach a conclusion of physical control. Thus, even if disregarded as clearly
erroneous, the district court’s use of this word does not diminish the several pages of
thorough and well-cited analysis on physical control that precede it, nor the district
court’s ultimate conclusion.
Berres’s proffered arguments are unpersuasive. She was found inebriated in the
driver’s seat of her operable car, at a location on the way to her home, with the keys a
brief walk away. No one else was present to indicate that she might simply have been a
passenger. Physical 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.” Id. at 837. The district court correctly concluded that Berres was
in physical control of the vehicle.
Affirmed.1
1 The commissioner argued that the district court’s finding that Berres did not drive her vehicle was clearly erroneous. This argument is rendered moot due to our disposition on the issue of physical control.