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Duncan v. Commissioner of Public Safety

July 27, 2004

RYAN LEE DUNCAN, PETITIONER, APPELLANT,
v.
COMMISSIONER OF PUBLIC SAFETY, RESPONDENT.



Mille Lacs County District Court File No. C4030862.

Considered and decided by Shumaker, Presiding Judge; Peterson, Judge; and Stoneburner, Judge.

SYLLABUS BY THE COURT

Driving on the shoulder of a roadway to pass a vehicle on the right violates Minn. Stat. § 169.18, subd. 4(4) (2002).

The opinion of the court was delivered by: Peterson, Judge

Affirmed

OPINION

In this appeal from an order sustaining the revocation of his driver's license under the implied-consent law, appellant argues that the district court erred as a matter of law when it concluded that the police officer who saw appellant drive on the right shoulder of a roadway to pass vehicles on the right had a lawful basis for stopping appellant. Because we conclude that driving on the shoulder of a roadway to pass a vehicle on the right violates Minn. Stat. § 169.18, subd. 4(4) (2002), and, therefore, that the officer's observations provided an adequate basis for stopping appellant, we affirm.

FACTS

Mille Lacs County Deputy Sheriff Terry Boltjes was traveling west on a two-lane state highway when the vehicle ahead of him slowed down to turn left. As Boltjes slowed to a stop behind the turning vehicle, he saw appellant Ryan Lee Duncan's pickup truck approach from behind. Along the right side of Boltjes's vehicle, there was a right-turn lane for a road that went north. At the beginning of the right-turn lane, there was a break in the fog line on the north side of the highway. After the break, there was a solid white line between the lane that Boltjes's vehicle was in and the right-turn lane. The solid white line extended to the intersection with the northbound road, and there was a break in the line at the intersection. The fog line began again immediately after the intersection and ran along the north side of the lane that Boltjes's vehicle was in. There was a paved shoulder along the north side of the highway.

Boltjes saw appellant's truck enter the right-turn lane and pass the squad car. But appellant did not turn right; he drove straight through the intersection. Appellant's truck was to the right of the fog line after appellant cleared the intersection. Boltjes saw appellant's truck cross over the fog line and merge back into the lane that Boltjes's vehicle was in and continue traveling west.

Boltjes believed that appellant had unlawfully passed on the right and stopped appellant's vehicle. Boltjes ultimately arrested appellant for driving while impaired, and respondent Commissioner of Public Safety revoked appellant's driving privileges under the implied-consent law.

Appellant sought judicial review of the revocation, and a joint omnibus and implied-consent hearing was held. Appellant argued that the license revocation must be rescinded because he lawfully passed Boltjes on the right without violating Minn. Stat. § 169.18, subd. 4 (2002), and, therefore, Boltjes did not have a reasonable, articulable suspicion to stop appellant's vehicle. The district court found that appellant violated Minn. Stat. § 169.18, subd. 4(4), and that appellant was properly stopped. The district court affirmed the revocation. This appeal followed.

ISSUE

Does driving on the shoulder of a roadway to pass a vehicle on the right violate Minn. Stat. ยง ...


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