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Wagener v. Commissioner of Public Safety

Court of Appeals of Minnesota

August 12, 2013

Mark Raymond Wagener, petitioner, Appellant,
v.
Commissioner of Public Safety, Respondent (A12-2239), and State of Minnesota, Respondent (A13-0655),
v.
Mark Raymond Wagener, Appellant.

UNPUBLISHED OPINION

McLeod County District Court File Nos. 43-CV-12-1605, 43-CR-12-1405

Richard L. Swanson, Chaska, Minnesota (for appellant) Lori Swanson, Minnesota Attorney General, St. Paul, Minnesota (for respondents); and Kristi A. Nielsen, James A. Van Buskirk, Assistant Attorneys General, St. Paul, Minnesota (for respondent Commissioner of Public Safety).

Jason M. Thiemann, Gavin, Winters, Twiss, Thiemann & Long, Ltd., Glencoe, Minnesota (for respondent State of Minnesota).

Considered and decided by Ross, Presiding Judge; Bjorkman, Judge; and Rodenberg, Judge.

RODENBERG, Judge

In these consolidated appeals, appellant challenges the district court's order sustaining the revocation of his driver's license in a civil implied-consent proceeding, and the denial of his motion to suppress evidence in the criminal driving while impaired (DWI) proceeding, arguing that the arresting officer did not have reasonable suspicion to request a preliminary breath test (PBT). We affirm.

FACTS

At 1:55 a.m. on September 6, 2012, Officer Todd Rohloff of the Glencoe Police Department was dispatched to appellant Mark Raymond Wagener's address in Glencoe in response to a report of a domestic assault in progress. Officer Rohloff was familiar with appellant and appellant's vehicle based on prior interactions with him. While en route to appellant's apartment, Officer Rohloff was informed by dispatch that appellant had reportedly left the location of the alleged assault in a red Chevrolet Lumina. He located and followed a vehicle that looked similar to that described, in an effort to determine whether it was appellant's vehicle. He was able to confirm that it was appellant's vehicle by the vehicle's license plate number, but did not know who was driving the vehicle.

As he followed the vehicle, Officer Rohloff observed it cross over the fog line and then move fully back into the driving lane, and he observed it weave in its lane "a couple other times." Officer Rohloff activated his squad car's emergency lights and initiated a traffic stop after the vehicle signaled a turn onto an intersecting street.

The vehicle stopped and Officer Rohloff approached it on foot. Based on prior interactions, Officer Rohloff identified the driver as appellant. There was no one else in the car. Officer Rohloff noted an odor of alcohol emanating from the vehicle and observed that appellant's eyes were bloodshot, watery, and glassy. Appellant's face was flushed.

Officer Rohloff asked appellant if he had consumed alcohol, and appellant responded that he had "a couple" after arriving home from work. Officer Rohloff asked appellant to count backward from 89 to 67. Appellant attempted to comply, but skipped 77 and did not stop at 67. Instead, appellant continued counting backward to 60, stopping only after Officer Rohloff finally instructed him to do so. Officer Rohloff decided, based on appellant's appearance and his performance on the counting assignment, to ask appellant to perform more field sobriety tests. But when Officer Rohloff asked appellant if he would be willing to perform some physical field sobriety tests outside of the vehicle, appellant declined and asked Officer Rohloff to "cut to the chase."

Officer Rohloff then administered a PBT, which reported an alcohol concentration of .108. Officer Rohloff arrested appellant for DWI based on his driving conduct, physical indicia of intoxication, performance on the counting exercise, and the results of the PBT.

Based on appellant's DWI arrest, the department of public safety issued an order revoking appellant's driver's license and an order impounding the license plates that were registered to the vehicle. Appellant filed a petition with the district court seeking rescission of the two orders and suppression of the evidence resulting from his arrest in the criminal proceeding. The two cases were heard together in a combined implied-consent/omnibus hearing. In his argument at the close of testimony, appellant argued that Officer Rohloff did not have a sufficient ...


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