                           This opinion will be unpublished and
                           may not be cited except as provided by
                           Minn. Stat. § 480A.08, subd. 3 (2014).

                                 STATE OF MINNESOTA
                                 IN COURT OF APPEALS
                                       A14-2098

                                   Craig Ecker, petitioner,
                                         Appellant,

                                              vs.

                               Commissioner of Public Safety,
                                       Respondent

                                     Filed June 29, 2015
                                          Affirmed
                                        Worke, Judge

                               Otter Tail County District Court
                          File No. 56-CV-14-2458, 56-CR-14-2323

Christopher J. Cadem, Fergus Falls, Minnesota (for appellant)

Lori Swanson, Attorney General, Rory C. Mattson, Assistant Attorney General, Joan
Marie Eichhorst, Assistant Attorney General, St. Paul, Minnesota

         Considered and decided by Worke, Presiding Judge; Hudson, Judge; and Chutich,

Judge.

                          UNPUBLISHED OPINION

WORKE, Judge

         Appellant challenges the revocation of his driver’s license, arguing that he did not

have physical control of the vehicle and that no temporal connection was shown to exist

between his intoxication and driving. We affirm.
                                     DECISION

Physical control

       Following appellant Craig Ecker’s driving-while-impaired (DWI) arrest,

respondent Commissioner of Public Safety revoked his driver’s license. The district

court sustained the revocation. Ecker argues that the district court erred in concluding

that he was in physical control of the vehicle while under the influence.

       The commissioner must revoke a person’s driver’s license if the person was in

physical control of a vehicle and had an alcohol concentration of .08 or higher. Minn.

Stat. § 169A.52, subd. 4(a) (2014). If a driver asserts that he was not in physical control

of the vehicle, the commissioner must prove that he was in control by a fair

preponderance of the evidence. Llona v. Comm’r of Pub. Safety, 389 N.W.2d 210, 212

(Minn. App. 1986).

       “Whether a person is in physical control of a motor vehicle for purposes of the

implied-consent law is a mixed question of law and fact.” Snyder v. Comm’r of Pub.

Safety, 744 N.W.2d 19, 21-22 (Minn. App. 2008). The district court’s findings of fact

will not be set aside unless clearly erroneous. Id. at 22. Findings of fact are clearly

erroneous when they are “manifestly contrary to the weight of the evidence or not

reasonably supported by the evidence as a whole.” Schulz v. Comm’r of Pub. Safety, 760

N.W.2d 331, 333 (Minn. App. 2009) (quotation omitted). When the evidence supporting

the district court’s factual findings is entirely oral testimony, we will not disturb the

findings except in extraordinary circumstances. Hunt v. Comm’r of Pub. Safety, 356

N.W.2d 801, 803 (Minn. App. 1984). After the facts are established, we review de novo


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whether they demonstrate physical control. Snyder, 744 N.W.2d at 22. We will overturn

conclusions of law “only upon a determination that the [district] court has erroneously

construed and applied the law to the facts of the case.” Dehn v. Comm’r of Pub. Safety,

394 N.W.2d 272, 273 (Minn. App. 1986).

       “The term ‘physical control’ is more comprehensive than either ‘drive’ or

‘operate.’” State v. Starfield, 481 N.W.2d 834, 836 (Minn. 1992). The term is “given the

broadest possible effect . . . to deter inebriated persons from getting into vehicles except

as passengers.” Id. (quotation omitted). “[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.” State v. Fleck, 777 N.W.2d 233, 236 (Minn.

2010). Because it is the overall situation that is determinative, Starfield, 481 N.W.2d at

838, courts consider a number of factors when resolving 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.” Fleck, 777 N.W.2d at 236.

       Ecker argues that he was not in physical control because the engine was off and

the keys were removed and never located. In Sens v. Comm’r of Pub. Safety, officers

received a call in the early morning that a person was in a vehicle parked on the street.

399 N.W.2d 602, 603 (Minn. App. 1987). An officer shined a spotlight into the vehicle

and observed Sens lying on the front seat. Id. Sens woke up when directed and exited

the vehicle. Id. at 604. The officer observed keys on the front seat. Id. Sens displayed

indicia of intoxication and the officer placed him under arrest for DWI, but Sens told the


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officer that he could not arrest him because there was no ignition key. Id. The officer

tried the keys he observed, but none fit the ignition. Id. While waiting for a tow-truck,

the officer found keys in the rear of the vehicle and one of them fit the ignition. Id. There

was no mechanical problem with the vehicle. Id.

       This court determined that the fact that the keys were not discovered until after the

arrest was not dispositive because physical control does not depend on the location of the

keys. Id. at 605. This court concluded that Sens was in physical control because he was

parked several miles from where he was living and could have driven home at any

moment. Id.

       Sens relied in part on Ledin v. Comm’r of Pub. Safety, in which this court held that

the officer had probable cause to believe that the driver was in physical control of his

vehicle while under the influence. 393 N.W.2d 433, 435 (Minn. App. 1986). In that case,

an officer responded to a report of a person passed out in a vehicle, and the officer found

Ledin lying on the front seat. Id. at 434. The officer woke Ledin, who displayed indicia

of intoxication. Id. Ledin was arrested and his driver’s license was revoked. Id.

       Ledin argued that he was not in possession of the keys to his car. Id. at 435. The

officer testified that at the time of the arrest, he had not seen the keys; he was

subsequently given the keys by another officer who inventoried the car. Id. This court

held that there is “no requirement that the [c]ommissioner prove . . . that the driver had

possession of his keys.”     Id.   This court concluded that, under the totality of the

circumstances, and giving deference to the officer’s ability to make inferences and

deductions which could elude an untrained person, the officer had probable cause to


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believe that Ledin was in physical control of his vehicle while under the influence. Id.

This court considered that the officer found Ledin sleeping in his vehicle, saw indicia of

intoxication when he woke him, and could have reasonably inferred that Ledin drove to

that location. Id.

       Here, Sergeant Connor West testified that on August 16, 2014, around 7:29 p.m.,

he responded to a call from a grocery store employee to conduct a welfare check on an

individual in a vehicle as a “possible slumper.” The officer made contact with Ecker.

The vehicle was not running and the officer did not see any keys. Ecker stated that he

had driven to a food stand to get corn for dinner that night, but it was closed, so he drove

to the grocery store where the officer found him. While speaking with Ecker, the officer

detected the strong odor of an alcoholic beverage, and noticed that Ecker’s eyes were

bloodshot and watery and his responses seemed slow.           Ecker admitted that he had

something to drink.

       The district court concluded that Ecker was in physical control of the vehicle

because he was in a parked vehicle, in close proximity to the operating controls of the

vehicle, and admitted that he had been driving. In addition, no other person was present

who could have been driving.         These circumstances support the district court’s

conclusion that Ecker was in physical control of his vehicle while under the influence.

Temporal connection

       Ecker also argues that the district court erred by concluding that the commissioner

showed that the officer had probable cause to believe that Ecker was driving while under




                                             5
the influence because there was not a sufficient temporal connection between Ecker’s

driving and his intoxication.

              A determination of probable cause is a mixed question of fact
              and of law. After the facts are determined, this court must
              apply the law to determine if probable cause existed. This
              court does not review probable cause determinations de novo,
              instead, we determine if the police officer had a substantial
              basis for concluding that probable cause existed at the time of
              invoking the implied consent law.

Groe v. Comm’r of Pub. Safety, 615 N.W.2d 837, 840 (Minn. App. 2000) (citations and

quotation omitted), review denied (Minn. Sept. 13, 2000). We evaluate probable cause

under the totality of the circumstances, from the arresting officer’s point of view, giving

deference to the officer’s experience and judgment. DeLong v. Comm’r of Pub. Safety,

386 N.W.2d 296, 298 (Minn. App. 1986), review denied (Minn. June 13, 1986).

       An officer is not required to establish a temporal connection between the driving

and the belief that probable cause exists to invoke the implied-consent law. Graham v.

Comm’r of Pub. Safety, 374 N.W.2d 809, 811 (Minn. App. 1985). But “there must be a

time frame established showing a connection between drinking and driving.” DeLong,

386 N.W.2d at 298.

       Ecker relies on Dietrich v. Comm’r of Pub. Safety, in which this court affirmed a

district court determination that the evidence failed to link the time of a collision to the

time when the driver was determined to be under the influence. 363 N.W.2d 801, 803

(Minn. App. 1985). In that case, Dietrich hit a parked trailer. Id. at 802. Witnesses

identified Dietrich as the driver, who had left the accident scene, but did not indicate

whether Dietrich appeared to be under the influence. Id. The officer went to Dietrich’s


                                             6
home; Dietrich showed signs of intoxication, admitted that he had been drinking, failed

field sobriety tests, and registered a .10 alcohol content on a breath test. Id. The officer

did not testify about when the accident occurred; he stated only that he was on duty

around 9:19 p.m. and invoked the implied-consent advisory at 10:24 p.m. Id.

       This court agreed with the district court that the evidence established that Dietrich

was driving the car involved in the collision and that he was under the influence of

alcohol at the time the officer observed him. Id. at 803. But the evidence failed to

establish the connection between the two events. Id. This court stated that the time the

officer was on duty did not establish when the accident occurred or when Dietrich had

been driving; that Dietrich was later found to be under the influence established a

sequence of events, but provided no time frame. Id.

       Here, Sergeant West testified that the call from the grocery store employee was

“dispatched at approximately 7:29 p.m. [and he] arrived shortly thereafter.” Ecker stated

that he had driven to the food stand, but it was closed, so he drove to the grocery store

where the officer found him. The officer observed indicia of intoxication, and Ecker

admitted that he had something to drink. Ecker performed field sobriety tests poorly and

his preliminary-breath-test result was .281. The officer placed Ecker under arrest for

DWI and read the implied-consent advisory. Ecker agreed to take a breath test, and at

8:20 p.m. Ecker’s reported alcohol content was .28.

       Unlike the officer in Dietrich, the officer here testified that he arrived at the

grocery store shortly after 7:29 p.m. and made contact with Ecker, who admitted that he

been drinking and stated that he had driven to the store to get something for dinner that


                                             7
night. The breath test was administered less than an hour later. The officer’s testimony

established a sufficient temporal connection between the time Ecker was driving and the

time when he was determined to be under the influence.

Findings of fact

       Finally, Ecker argues that the district court’s findings of fact underlying its legal

conclusions were clearly erroneous. He specifically challenges the following findings:

(1) there was “no evidence that [Ecker] intended to cease operating his vehicle and leave

it at [the grocery store],” and (2) “[w]hen Sergeant West observed [Ecker], he was still

seated in his vehicle and in an impaired state.”

       Ecker argues that the absence of keys demonstrates intent to cease operating the

vehicle. But the officer testified that Ecker stated that he had driven to the food stand to

get corn for dinner that night.     It was approximately 7:30 p.m.       The time of day,

combined with the act of getting something for dinner that night shows that Ecker did not

intend to leave his vehicle at the grocery store but, instead, intended to return home.

Thus, this finding is not clearly erroneous. See Schulz, 760 N.W.2d at 333.

       Ecker suggests that the evidence was insufficient to show that he remained in his

vehicle after arriving at the grocery store. He claims that the late hour, the missing keys,

and his extremely high level of intoxication indicate that he walked to a liquor store or to

a local establishment serving alcohol located near the grocery store and returned without

his keys. First, the record before this court is devoid of anything about a liquor store or

any establishment serving alcohol located near the grocery store. Second, the record

before this court is devoid of any asserted post-driving alcohol consumption. Finally, the


                                             8
district court’s finding that “[w]hen Sergeant West observed [Ecker], he was still seated

in his vehicle and in an impaired state,” was likely referring to West testifying that he

received a call that an individual—a “possible slumper”—was in his vehicle, and when

the officer arrived and approached the vehicle, Ecker was still in the vehicle. Further

support for this reasoning is the district court’s contrast of Dietrich, in which the driver

was not found at the scene, and the officer had to travel to the driver’s home to locate

him. See 363 N.W.2d at 802. This finding is not clearly erroneous. See Schulz, 760

N.W.2d at 333.

       Affirmed.




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