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Barnes v. Commissioner of Public Safety

January 7, 2003

VIRGIL LEE BARNES, PETITIONER, APPELLANT,
v.
COMMISSIONER OF PUBLIC SAFETY, RESPONDENT.



Sherburne County District Court File No. C802000386

Considered and decided by Shumaker, Presiding Judge, Anderson, Judge, and Wright, Judge.

The opinion of the court was delivered by: Gordon W. Shumaker, Judge

Affirmed

UNPUBLISHED OPINION

Appellant Virgil Lee Barnes was arrested for being in physical control of a motor vehicle while impaired. Because Barnes's urine sample revealed an alcohol concentration of 0.14, the Commissioner of Public Safety revoked his driver's license. After an implied-consent hearing, the district court found that Barnes was in physical control of his truck while impaired, and the court sustained the revocation. Because the evidence supports the district court's finding of physical control, we affirm.

FACTS

On January 11, 2002, appellant Virgil Lee Barnes drove his truck to a bar in Big Lake and drank alcoholic beverages. When he finished drinking, he did not feel capable of driving, and he asked various bar patrons to drive him home. One patron agreed.

On the way to Barnes's home, with the patron driving, Barnes's truck ran out of gasoline. Barnes then telephoned his wife and asked her to bring gasoline. In the meantime, the patron obtained a ride back to the bar. When the patron left, Barnes moved from the passenger seat to the driver's seat and left the ignition keys on the truck's console.

While on patrol, Deputy Sheriff Scott Tillmann saw Barnes's truck parked on the side of the road and stopped to investigate. As the deputy walked toward the truck, Barnes put the key in the ignition and turned the switch to "on" so he could open the power window and talk to the deputy.

Barnes told Tillmann that he had been driving his truck and ran out of gas. Tillmann noticed that Barnes had signs of alcohol impairment and administered a preliminary breath test. Barnes failed the test, and the deputy arrested him. Barnes's wife then arrived with a can of gas.

When Barnes's urine sample showed an alcohol concentration of 0.14, the Commissioner of Public Safety revoked his driver's license. Barnes challenged the revocation in an implied-consent hearing, arguing that he never relinquished his status as a passenger and therefore was not in physical control of the truck when the deputy arrested him. The district court sustained the revocation, and Barnes appeals.

DECISION

Barnes does not dispute that, when deputy Tillmann approached his truck, Barnes was sitting in the driver's seat, the key was in the ignition, and the ignition switch was on. The issue Barnes raises is whether those undisputed facts, in the context of how Barnes arrived at the scene and the reason he was in the driver's seat with the ignition on, support the district court's conclusion that Barnes was in physical control of his truck. We review de novo the court's legal conclusion that Barnes was in physical control. Shane v. Comm'r of Pub. Safety, 587 N.W.2d 639, 641 (Minn. 1998).

Under Minn. Stat.᧠169A.52 (2000), the Commissioner of Public Safety has a duty to revoke the driver's license of any person who is in physical control of a motor vehicle when the person has an alcohol concentration of 0.10 or more. Physical control is "more comprehensive than either 'drive' or 'operate.'" State v. ...


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