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Zachman v. Commissioner of Public Safety

Court of Appeals of Minnesota

September 9, 2013

Gerald Richard Zachman, petitioner, Appellant,
v.
Commissioner of Public Safety, Respondent.

UNPUBLISHED OPINION

Benton County District Court File No. 05-CV-12-1237

Rodd Tschida, Minneapolis, Minnesota (for appellant)

Lori Swanson, Attorney General, Frank Aba-Onu, Assistant Attorney General, St. Paul, Minnesota (for respondent)

Considered and decided by Halbrooks, Presiding Judge; Schellhas, Judge; and Hooten, Judge.

HALBROOKS, Judge

Appellant challenges the revocation of his driver's license under Minn. Stat. § 169A.50-53 (2012), the implied-consent law, arguing that his preliminary breath test (PBT) was unlawfully obtained. Because there was a reasonable, articulable basis for suspecting appellant of driving while impaired (DWI) when the test was administered, we affirm.

FACTS

On June 23, 2012, State Trooper James Kotten received a report of a motorcycle accident shortly before 6:00 p.m. on Highway 23 near Foley. After speaking with the on-scene deputies and witnesses, Trooper Kotten learned that four motorcyclists were traveling together on Highway 23 when one of them laid down his motorcycle. That motorcyclist was injured and airlifted out. No other motorists were involved in the accident.

Trooper Kotten spoke with the three remaining motorcyclists, including appellant Gerald Richard Zachman, to determine the cause of the accident. The motorcyclists stated that the accident was likely due to a pickup truck that stopped abruptly in front of them before taking a left turn. Trooper Kotten left the motorcyclists to question the motorist who had been driving in between the pickup truck and the group of motorcyclists when the accident occurred. The motorist told Trooper Kotten that the pickup truck did not stop abruptly and instead slowed and signaled before turning off the road.

Trooper Kotten, joined by Lieutenant Brad Ouart, returned to the motorcyclists. Both troopers detected an odor of alcohol coming from the group. Lieutenant Ouart smelled alcohol coming from Zachman. The motorcyclists explained that they were involved in a charity ride earlier that day, had stopped at 2 or 3 bars, and had each consumed approximately 4 to 5 alcoholic drinks during the course of the day. They further admitted to having recently left a nearby bar. The troopers suspected that the accident was alcohol-related.

At this point in their investigation, neither Trooper Kotten nor Lieutenant Ouart believed that any of the three motorcyclists were "drunk." Yet Trooper Kotten "figured there was a good possibility" that they might have been at or near the legal limit. The troopers administered a PBT on each motorcyclist to avoid the possibility of "sending [motorists] down the road [who] were under the influence." Lieutenant Ouart testified that had the motorcyclists declined to take the PBT he would have taken other measures to determine whether any of them were impaired.

The PBT of the first two motorcyclists revealed alcohol-concentration levels within the legal limit. Zachman failed his test, registering an alcohol-concentration level of .11. Based on these results, Lieutenant Ouart pulled Zachman aside and administered standardized field sobriety tests. Zachman failed those tests and was arrested for DWI. Zachman's driver's license was subsequently revoked.

The district court sustained the license revocation, reasoning that the odor of alcohol from the group together with their statements that they had been drinking provided a sufficient basis for administering ...


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