This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A24-0451
State of Minnesota, Appellant,
vs.
Daniel Scott Nelson, Respondent.
Filed August 26, 2024 Reversed and remanded Kirk, Judge *
Sherburne County District Court File No. 71-CR-23-1235
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Kathleen A. Heaney, Sherburne County Attorney, George R. Kennedy, Assistant County Attorney, Elk River, Minnesota (for appellant)
Brady E. Cysiewski, Douglas T. Kans, Kans Law Firm, LLC, Bloomington, Minnesota (for respondent)
Considered and decided by Bjorkman, Presiding Judge; Reyes, Judge; and Kirk,
Judge.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10. NONPRECEDENTIAL OPINION
KIRK, Judge
Appellant State of Minnesota appeals the district court’s pretrial order dismissing
the complaint against respondent Daniel Scott Nelson for lack of probable cause. Because
the state presented sufficient facts to establish probable cause for believing that Nelson was
in physical control of the vehicle, we reverse and remand.
FACTS
On October 1, 2023, law enforcement responded to a report of a man passed out in
the backseat of a vehicle in a WalMart parking lot. One of the responding officers
recognized the vehicle and unconscious man from an encounter the previous day during
which the officer found Nelson unconscious in the backseat of his vehicle after he had
inhaled intoxicating fumes from cans of compressed air. Nelson was transported to the
hospital following the previous incident.
On October 1, Nelson was again unconscious and surrounded by cans of compressed
air, so the officers knocked on the window and yelled to wake Nelson. The officers opened
the rear doors, which caused Nelson to awaken, and asked Nelson to exit the vehicle.
Nelson complied and subsequently admitted that he had inhaled intoxicating fumes from
the cans of compressed air that were in the vehicle.
Nelson had trouble remembering basic facts, such as the day of the week. Nelson
initially indicated that he did not have the keys to the vehicle, but, when asked how to lock
the vehicle, Nelson grabbed the keys from the rear-passenger wheel well.
2 The state charged Nelson with felony driving while impaired (DWI) and gross
misdemeanor violation of a restricted driver’s license. See Minn. Stat. §§ 169A.20, subd.
1(3) (intoxicating substance DWI) (Supp. 2023), 171.09, subd. 1(f)(1) (restricted license
prohibiting consumption or possession of alcohol or controlled substance) (2022). Nelson
moved to dismiss the complaint for lack of probable cause. The parties stipulated to
documentary exhibits to serve as the record for the contested omnibus motion. The district
court granted the motion to dismiss, determining the complaint failed to show that Nelson
was in physical control of the vehicle while he was under the influence.
The state appeals.
DECISION
The state’s ability to appeal is limited. State v. Rourke, 773 N.W.2d 913, 923
(Minn. 2009). In a pretrial appeal, the state must show that “the district court’s alleged
error, unless reversed, will have a critical impact on the outcome of the trial.”
State v. Stavish, 868 N.W.2d 670, 674 (Minn. 2015) (quoting Minn. R. Crim. P. 28.04,
subd. 2(b)). The critical-impact requirement is met when a district court dismisses charges
against a defendant. See State v. Trei, 624 N.W.2d 595, 597 (Minn. App. 2001), petition
for rev. dismissed (Minn. June 22, 2001).
The state may only appeal a probable cause dismissal if it is based on a legal
determination. State v. Barker, 888 N.W.2d 348, 352 (Minn. App. 2016). Whether the
dismissal is a legal or factual determination is a threshold jurisdictional question. Id. at
353. As with other legal determinations, it is reviewed de novo. State v. Linville, 598
N.W.2d 1, 2 (Minn. App. 1999).
3 Nelson does not challenge the state’s authority to bring this pretrial appeal. And,
because any error in the district court’s dismissal of the charges would have a critical
impact on the case, we turn to our de novo review of whether probable cause exists to
support the charges.
Upon a defendant’s motion to dismiss for lack of probable cause, the district “court
must determine whether probable cause exists to believe that an offense has been
committed and that the defendant committed it.” Minn. R. Crim. P. 11.04, subd. 1(a).
When making this determination, “[i]t is not necessary for the state to prove the defendant’s
guilt beyond a reasonable doubt.” State v. Florence, 239 N.W.2d 892, 896 (Minn. 1976)
(quotation omitted). “Unlike proof beyond a reasonable doubt or preponderance of the
evidence, probable cause requires only a probability or substantial chance of criminal
activity, not an actual showing of such activity.” State v. Harris, 589 N.W.2d 782, 790-91
(Minn. 1999) (quotation omitted). “[T]he threshold factual showing of probable cause
necessary to support a charge is low . . . .” State v. Lopez, 778 N.W.2d 700, 705 (Minn.
2010).
When considering a motion to dismiss for lack of probable cause, “[t]he district
court must view the evidence in the light most favorable to the state and may not assess the
relative credibility or weight of the conflicting evidence.” Barker, 888 N.W.2d at 353
(citation and quotation omitted). Such issues are, “with rare exception,” left to the jury.
State v. Elmourabit, 373 N.W.2d 290, 294 (Minn. 1985).
4 The district court dismissed the charges of felony driving while impaired and gross
misdemeanor violation of a restricted driver’s license, both of which require the state show
that Nelson was in physical control of the vehicle. See Minn. Stat. §§ 169A.20, subd. 1(3)
(prohibiting persons from driving, operating, or being in physical control of a motor vehicle
when intoxicated), 171.09, subd. 1(f)(1) (prohibiting individuals with a restricted license
from “driv[ing], operat[ing], or [being] in physical control of a motor vehicle”). “Physical
control” has a broad definition and “is meant to cover situations when an intoxicated person
‘is found in a parked vehicle under circumstances in which the [vehicle], without too much
difficulty, might again be started and become a source of danger to the operator, to others,
or to property.’” State v. Fleck, 777 N.W.2d 233, 236 (Minn. 2010) (quoting
State v. Starfield, 481 N.W.2d 834, 837 (Minn. 1992)). Accordingly, “a person is in
physical control of a vehicle if he has the means to initiate any movement of that vehicle,
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This opinion is nonprecedential except as provided by Minn. R. Civ. App. P. 136.01, subd. 1(c).
STATE OF MINNESOTA IN COURT OF APPEALS A24-0451
State of Minnesota, Appellant,
vs.
Daniel Scott Nelson, Respondent.
Filed August 26, 2024 Reversed and remanded Kirk, Judge *
Sherburne County District Court File No. 71-CR-23-1235
Keith Ellison, Attorney General, St. Paul, Minnesota; and
Kathleen A. Heaney, Sherburne County Attorney, George R. Kennedy, Assistant County Attorney, Elk River, Minnesota (for appellant)
Brady E. Cysiewski, Douglas T. Kans, Kans Law Firm, LLC, Bloomington, Minnesota (for respondent)
Considered and decided by Bjorkman, Presiding Judge; Reyes, Judge; and Kirk,
Judge.
* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10. NONPRECEDENTIAL OPINION
KIRK, Judge
Appellant State of Minnesota appeals the district court’s pretrial order dismissing
the complaint against respondent Daniel Scott Nelson for lack of probable cause. Because
the state presented sufficient facts to establish probable cause for believing that Nelson was
in physical control of the vehicle, we reverse and remand.
FACTS
On October 1, 2023, law enforcement responded to a report of a man passed out in
the backseat of a vehicle in a WalMart parking lot. One of the responding officers
recognized the vehicle and unconscious man from an encounter the previous day during
which the officer found Nelson unconscious in the backseat of his vehicle after he had
inhaled intoxicating fumes from cans of compressed air. Nelson was transported to the
hospital following the previous incident.
On October 1, Nelson was again unconscious and surrounded by cans of compressed
air, so the officers knocked on the window and yelled to wake Nelson. The officers opened
the rear doors, which caused Nelson to awaken, and asked Nelson to exit the vehicle.
Nelson complied and subsequently admitted that he had inhaled intoxicating fumes from
the cans of compressed air that were in the vehicle.
Nelson had trouble remembering basic facts, such as the day of the week. Nelson
initially indicated that he did not have the keys to the vehicle, but, when asked how to lock
the vehicle, Nelson grabbed the keys from the rear-passenger wheel well.
2 The state charged Nelson with felony driving while impaired (DWI) and gross
misdemeanor violation of a restricted driver’s license. See Minn. Stat. §§ 169A.20, subd.
1(3) (intoxicating substance DWI) (Supp. 2023), 171.09, subd. 1(f)(1) (restricted license
prohibiting consumption or possession of alcohol or controlled substance) (2022). Nelson
moved to dismiss the complaint for lack of probable cause. The parties stipulated to
documentary exhibits to serve as the record for the contested omnibus motion. The district
court granted the motion to dismiss, determining the complaint failed to show that Nelson
was in physical control of the vehicle while he was under the influence.
The state appeals.
DECISION
The state’s ability to appeal is limited. State v. Rourke, 773 N.W.2d 913, 923
(Minn. 2009). In a pretrial appeal, the state must show that “the district court’s alleged
error, unless reversed, will have a critical impact on the outcome of the trial.”
State v. Stavish, 868 N.W.2d 670, 674 (Minn. 2015) (quoting Minn. R. Crim. P. 28.04,
subd. 2(b)). The critical-impact requirement is met when a district court dismisses charges
against a defendant. See State v. Trei, 624 N.W.2d 595, 597 (Minn. App. 2001), petition
for rev. dismissed (Minn. June 22, 2001).
The state may only appeal a probable cause dismissal if it is based on a legal
determination. State v. Barker, 888 N.W.2d 348, 352 (Minn. App. 2016). Whether the
dismissal is a legal or factual determination is a threshold jurisdictional question. Id. at
353. As with other legal determinations, it is reviewed de novo. State v. Linville, 598
N.W.2d 1, 2 (Minn. App. 1999).
3 Nelson does not challenge the state’s authority to bring this pretrial appeal. And,
because any error in the district court’s dismissal of the charges would have a critical
impact on the case, we turn to our de novo review of whether probable cause exists to
support the charges.
Upon a defendant’s motion to dismiss for lack of probable cause, the district “court
must determine whether probable cause exists to believe that an offense has been
committed and that the defendant committed it.” Minn. R. Crim. P. 11.04, subd. 1(a).
When making this determination, “[i]t is not necessary for the state to prove the defendant’s
guilt beyond a reasonable doubt.” State v. Florence, 239 N.W.2d 892, 896 (Minn. 1976)
(quotation omitted). “Unlike proof beyond a reasonable doubt or preponderance of the
evidence, probable cause requires only a probability or substantial chance of criminal
activity, not an actual showing of such activity.” State v. Harris, 589 N.W.2d 782, 790-91
(Minn. 1999) (quotation omitted). “[T]he threshold factual showing of probable cause
necessary to support a charge is low . . . .” State v. Lopez, 778 N.W.2d 700, 705 (Minn.
2010).
When considering a motion to dismiss for lack of probable cause, “[t]he district
court must view the evidence in the light most favorable to the state and may not assess the
relative credibility or weight of the conflicting evidence.” Barker, 888 N.W.2d at 353
(citation and quotation omitted). Such issues are, “with rare exception,” left to the jury.
State v. Elmourabit, 373 N.W.2d 290, 294 (Minn. 1985).
4 The district court dismissed the charges of felony driving while impaired and gross
misdemeanor violation of a restricted driver’s license, both of which require the state show
that Nelson was in physical control of the vehicle. See Minn. Stat. §§ 169A.20, subd. 1(3)
(prohibiting persons from driving, operating, or being in physical control of a motor vehicle
when intoxicated), 171.09, subd. 1(f)(1) (prohibiting individuals with a restricted license
from “driv[ing], operat[ing], or [being] in physical control of a motor vehicle”). “Physical
control” has a broad definition and “is meant to cover situations when an intoxicated person
‘is found in a parked vehicle under circumstances in which the [vehicle], without too much
difficulty, might again be started and become a source of danger to the operator, to others,
or to property.’” State v. Fleck, 777 N.W.2d 233, 236 (Minn. 2010) (quoting
State v. Starfield, 481 N.W.2d 834, 837 (Minn. 1992)). Accordingly, “a person is in
physical control of a vehicle if he has the means to initiate any movement of that vehicle,
and he is in close proximity to the operating controls of the vehicle.” Id.
“Physical control” is given “the broadest possible effect” because the law
prohibiting a person from being in physical control of a motor vehicle while intoxicated is
aimed at protecting public safety. Id. (quoting State v. Juncewski, 308 N.W.2d 316, 319
(Minn. 1981)). “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.” Id. (citing Starfield, 481 N.W.2d at 839.)
5 The state claims that the district court exceeded its role in determining whether the
charges were supported by probable cause when it weighed and considered the evidence
before determining that Nelson was not in physical control of the vehicle. We agree.
In determining whether probable cause supported the charges, the district court
observed that Nelson “took steps to not only remove the keys from his vehicle but also to
hide the keys in a place that was not easily reachable from his seat inside the vehicle” and
noted that the state did not provide authority “to support a finding that an inebriated person
may be in physical control of a vehicle when he does not have keys to start the vehicle in
his possession.”
The record shows that Nelson was found alone in a parked vehicle. And although
Nelson indicated that he did not have the vehicle’s keys, the evidence also shows Nelson
quickly retrieved his keys when asked how the vehicle could be locked. The district court
weighed the evidence and determined that Nelson was not in physical control of the
vehicle. Yet, when determining whether charges are supported by probable cause, the
evidence is to be viewed in a light most favorable to the state and the district court “may
not assess[] the relative credibility or weight of . . . conflicting evidence.” Barker, 888
N.W.2d at 353 (quotation omitted); see also Elmourabit, 373 N.W.2d at 294 (noting that
issues that require weighing evidence or assessing credibility are, “with rare exception,”
left to the fact-finder). 1
1 This decision is limited. We do not discourage individuals from safely recovering from impairment before driving, and we express no opinion regarding whether these facts demonstrate that Nelson was in physical control of the vehicle. We simply conclude that the district court erred by resolving the issue at this stage of the case.
6 The state need not provide an actual showing of criminal activity to establish
probable cause supporting charges. Harris, 589 N.W.2d at 790-91 (noting probable cause
is a lower standard of proof than proof beyond a reasonable doubt and preponderance of
evidence). Instead, the probable-cause determination may be based on the belief that
Nelson was in physical control of the vehicle. See Minn. Stat. § 169A.20, subd. 1(3). The
record shows that Nelson was inside the vehicle, could access the controls, and knew where
the keys were located. Fleck, 777 N.W.2d at 236 (“a person is in physical control of a
vehicle if he has the means to initiate any movement of that vehicle, and he is in close
proximity to the operating controls of the vehicle”). Probable cause, therefore, exists to
believe that Nelson was in physical control of the vehicle while intoxicated.
Reversed and remanded.