                         This opinion will be unpublished and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
                                    A14-0578

                           Timothy Neil Koebnick, petitioner,
                                     Appellant,

                                           vs.

                             Commissioner of Public Safety,
                                    Respondent.

                                 Filed March 16, 2015
                                       Affirmed
                                   Bjorkman, Judge


                              Carver County District Court
                                File No. 10-CV-13-1105

Richard L. Swanson, Chaska, Minnesota (for appellant)

Lori Swanson, Attorney General, Kristi Nielsen, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

      Considered and decided by Hudson, Presiding Judge; Bjorkman, Judge; and

Reyes, Judge.

                        UNPUBLISHED OPINION

BJORKMAN, Judge

      Appellant challenges the revocation of his driver’s license, arguing the district

court erred in concluding that he failed to establish that post-driving consumption of

alcohol caused his alcohol concentration to exceed the legal limit. We affirm.
                                          FACTS

       On September 12, 2013, Chaska Police Officers Michael Duzan and Joe Carlson

responded to a 911 call regarding an unwanted male at a home in Chaska. When the

officers reached the house at around 9:30 p.m., they found appellant Timothy Koebnick

and his fiancé, J.P., standing in the front yard. J.P.’s three children, and her sister and

brother-in-law, C.L. and S.L., were inside the house. Earlier that evening, Koebnick and

J.P. had an argument, which prompted Koebnick to drive off in his truck around 9:00

p.m. Koebnick returned to the house approximately 20 minutes later, at which point

J.P.’s son called 911.

       Officer Duzan spoke with J.P. and Koebnick, while Officer Carlson interviewed

the other witnesses inside the house. At one point, Koebnick walked away from Officer

Duzan and toward the garage. Officer Duzan attempted to escort Koebnick away from

the garage, but Koebnick physically resisted.       Koebnick was subdued after a brief

altercation and arrested for obstructing and threatening an officer.

       Both officers noticed that Koebnick smelled of alcohol and had slurred speech.

Due to these signs of intoxication and witness reports that Koebnick had been drinking

before he left the house, Koebnick was also arrested for DWI. Officer Carlson read

Koebnick the implied-consent advisory, and he consented to a breath test, which revealed

an alcohol concentration of .16. Koebnick admitted to drinking before driving, but

attributed his high alcohol concentration to the fact that he was drinking in the garage just

before the police arrived.




                                             2
      Respondent Minnesota Commissioner of Public Safety revoked Koebnick’s

driving privileges pursuant to the implied-consent law, Minn. Stat. § 169A.50-.53 (2014).

Koebnick petitioned for judicial review.     At the implied-consent hearing, Koebnick

argued that post-driving alcohol consumption caused his alcohol concentration to exceed

the .08 legal limit.1 The district court affirmed the revocation, finding that Koebnick’s

testimony regarding his post-driving alcohol consumption was not credible, that

witnesses at the scene did not observe Koebnick drinking alcohol after driving, that there

was only a brief period of time between when he returned home and when the police

arrived, and that Koebnick “failed to show that such drinking caused his alcohol

concentration to equal or exceed .08 at the time of testing.” Koebnick appeals.

                                    DECISION

      Post-driving consumption of alcohol is an affirmative defense to license

revocation under the implied-consent statute. Minn. Stat. § 169A.46, subd. 1 (2014);

Dutcher v. Comm’r of Pub. Safety, 406 N.W.2d 333, 336 (Minn. App. 1987). To prevail

on this defense, a driver must establish by a preponderance of the evidence that (1) he

consumed alcohol after the time of violation but before the administration of the breath

test and (2) this post-driving consumption caused his alcohol concentration to meet or

exceed .08 at the time of testing. Minn. Stat. § 169A.46, subd. 1; Dutcher, 406 N.W.2d

at 336. Because the affirmative defense raises factual issues, we review the district

court’s determinations for clear error. Dutcher, 406 N.W.2d at 336.


1
 The parties stipulated to admission of witness statements in the police report that
Koebnick did not consume any alcohol after he returned to the residence.

                                            3
      Koebnick argues that the district court clearly erred by finding that he did not

prove that his post-driving consumption caused his alcohol concentration to exceed .08.

We disagree. First, the undisputed evidence shows Koebnick was drinking before he

operated his vehicle. Koebnick acknowledged that he drank vodka and Diet Coke in the

garage before going on a walk with J.P. around 6:00 p.m. Although Koebnick stated that

he only had two drinks, he admitted that he was uncertain about how much alcohol he

consumed because he poured the vodka directly into the soda cans. J.P.’s son told

Officer Duzan that Koebnick was drunk, and this was one factor that led him to call the

police. And both officers testified that Koebnick appeared intoxicated when they first

encountered him. Officer Duzan stated that Koebnick smelled of alcohol, had slurred

speech, and “his eyes looked real watery and kind of sloped.” Officer Carlson similarly

testified that Koebnick “smelled of alcohol” and “[h]is speech was slightly slurred.”

These observations are consistent with consumption of alcohol over a period of time.

      Second, the timing of the incident undercuts Koebnick’s post-driving consumption

argument. J.P.’s son called 911 as soon as Koebnick returned to the residence. Officer

Duzan testified that dispatch contacted him at 9:33 p.m. and that he arrived at the house

“probably three minutes” later, at which point he believed Koebnick had been home for

“[a]pproximately four or five minutes.” Koebnick was standing in the yard when the

officers arrived, and Officer Carlson observed that the engine of Koebnick’s truck was

still warm and making noise. This brief window of time between Koebnick’s return and

law enforcement’s arrival would have provided him with little opportunity to consume

much, if any, alcohol.


                                           4
       Third, witnesses at the scene reported that Koebnick did not consume alcohol after

he returned. Koebnick testified that he “guzzled” alcohol in the garage after he returned

home. But none of the other witnesses or evidence substantiated this testimony. Officer

Duzan testified that J.P.’s son said “[Koebnick] hadn’t had anything to drink since he

arrived” back home. C.L. and S.L. also reported that they did not see Koebnick consume

alcohol after he returned home.

       The only other evidence supporting Koebnick’s post-driving consumption

argument is J.P.’s testimony that she did not believe Koebnick was intoxicated when he

left in his truck. J.P. explained that during their argument, she told Koebnick to leave,

something she would not have done if she believed he was under the influence of alcohol.

While J.P. may not have believed Koebnick was intoxicated when he left the house, she

conceded that he had been drinking at some point before driving.

       Finally, as the district court noted, even if Koebnick did consume alcohol after

driving, the only evidence he presented to prove that this post-driving consumption

caused his alcohol concentration to exceed the legal limit was his own testimony. The

district court concluded that this testimony was self-serving and not credible. We defer

to such credibility determinations, especially where, as here, they are supported by ample

record evidence. See State v. Pieschke, 295 N.W.2d 580, 584 (Minn. 1980) (noting that it

is the exclusive function of the fact-finder to weigh credibility).




                                              5
       On this record, we conclude that the district court did not clearly err in finding that

post-driving consumption of alcohol did not cause Koebnick’s alcohol concentration to

exceed the legal limit.

       Affirmed.




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