                          This opinion will be unpublished and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
                                     A14-0510

                            Kayla Lashawn Berres, petitioner,
                                      Appellant,

                                           vs.

                              Commissioner of Public Safety,
                                      Respondent

                                 Filed February 23, 2015
                                        Affirmed
                                      Worke, Judge

                               Kanabec County District Court
                          File Nos. 33-CV-13-341, 33-CR-13-350

Robert J. Foley, III, Anthony J. Larson, Nick P. Granath, Minneapolis, Minnesota (for
appellant)

Lori Swanson, Attorney General, Rory C. Mattson, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

         Considered and decided by Reyes, Presiding Judge; Worke, Judge; and Johnson,

Judge.

                         UNPUBLISHED OPINION

WORKE, Judge

         Appellant challenges the district court’s denial of her petition to rescind her

driver’s license revocation. We affirm.
                                         FACTS

       On October 23, 2013, Deputy Bailey Miller was summoned to a fast-food

restaurant because an individual was sleeping in the lobby. When Deputy Miller arrived

an employee informed her that the individual had moved to her vehicle. Deputy Miller

observed appellant Kayla Lashawn Berres slumped over the center console. Deputy

Miller made contact with Berres and detected the odor of alcohol. The car was not

running and the keys were not in the ignition.

       Deputy Miller asked Berres where she had come from. Berres told Deputy Miller

that she drove from the bowling alley, had gone through the drive-through on her way

home, and then parked her car so that she could use the restroom. Berres made no

mention of anyone who was or had been with her. Deputy Miller performed field

sobriety tests and then placed Berres under arrest. Berres was read the implied consent

advisory and submitted to a breath test which showed an alcohol concentration of about

.20.

       Respondent Commissioner of Public Safety revoked Berres’s driving privileges.

At Berres’s rescission hearing, she presented a witness named John Armstrong who

testified that he received a call from Berres while she was still at the bowling alley that

night. Berres asked him to drive her home. Armstrong went to the bowling alley and

drove Berres’s vehicle to the restaurant. After the two arrived, they got into an argument.

Armstrong parked the vehicle, gave the keys to Berres and then walked away. Armstrong

saw Berres walk into the restaurant as he departed.




                                            2
       Berres testified that she did not recall that someone had given her a ride from the

bowling alley until after she was arrested and performed her own investigation. Berres

did recall that Armstrong had left her at the restaurant. Berres did not fully remember her

conversation with Deputy Miller. She recalled walking out of the restaurant, seeing law

enforcement, and then going to her car to retrieve her cigarettes, which were in the center

console. This, she explained, was why it appeared to Deputy Miller that she was slumped

over the center console. Berres did not know where her keys were at the time Deputy

Miller made contact, but she learned that she had left them in her purse in the restroom.

       The district court denied Berres’s requested rescission, concluding that she was in

physical control of her vehicle. Berres appealed.

                                     DECISION

       Berres argues that the district court erred in concluding that she was in physical

control of her vehicle. The commissioner may revoke an individual’s driver’s license if

she was in physical control of a vehicle and had an alcohol concentration greater than .08.

Minn. Stat. § 169A.52, subd. 4(a) (2014). “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.

Application of those facts to the question of physical control is one of law, reviewed de

novo. Id.

       “[T]he [c]ommissioner must show by a fair preponderance of the evidence that the

person was in physical control of the vehicle.” Roberts v. Comm’r of Pub. Safety, 371


                                             3
N.W.2d 605, 607 (Minn. App. 1985), review denied (Minn. Oct. 11, 1985). “[A] person

is in physical control of a vehicle if [s]he has the means to initiate any movement of that

vehicle, and [s]he is in close proximity to the operating controls of the vehicle.” State v.

Fleck, 777 N.W.2d 233, 236 (Minn. 2010). Physical control is “given the broadest

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

passengers.” State v. Starfield, 481 N.W.2d 834, 836 (Minn. 1992) (quotation omitted).

“Mere presence in or about the vehicle is not enough for physical control; it is the overall

situation that is determinative.”     Id. at 838.   “We consider a number of factors in

determining 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.

       Berres first contends that the district court’s conclusion that she was in physical

control of her vehicle because she had “dominion” and “control” inappropriately

interpreted statutory requirements.     She asserts that these terms are associated with

analysis of a possessory interest in property but are not appropriate in this context.

However, our caselaw uses these precise words to describe physical control of a vehicle.

State v. Duemke, 352 N.W.2d 427, 432 (Minn. App. 1984) (“The phrase ‘physical

control’ means being in a position to exercise dominion or control over the vehicle.”).

Furthermore, the district court concluded that Berres had dominion and control because

of the location of the keys, her proximity to the vehicle, and the absence of anyone else to

drive in her stead. These are considerations common to caselaw. See, e.g., Fleck, 777


                                              4
N.W.2d at 236 (describing factors involved in an analysis of physical control, including

the location of keys, proximity to the vehicle, and whether the person is a passenger);

Starfield, 481 N.W.2d at 837-39 (same, and discussing situations in which only one

person is found in or near a vehicle); see also Snyder, 744 N.W.2d at 22-23 (citing cases

discussing similar factors).

       Berres next argues that because she called Armstrong to arrange a ride home she

had no intent to operate her vehicle. But “[i]ntent to operate does not have to be shown

in order to find that an individual is in physical control.” Snyder, 744 N.W.2d at 22.

       She further argues that an affirmance in this case would expose lawful conduct to

criminal prosecution and license revocation. Berres posits a hypothetical scenario in

which anyone possessing keys on her person at a bar with a parking lot would run afoul

of the law. Such a situation is far removed from the facts here, and each case of physical

control is analyzed according to its unique circumstances. See Starfield, 481 N.W.2d at

838 (“[I]t is the overall situation that is determinative.”). Also, our law is concerned with

inebriated persons becoming drivers, not passengers. See id. at 837-38 (“It is . . . no

crime for an intoxicated person to be . . . a passenger. A passenger . . . is someone who is

merely along for the ride. When, however, only one person is found . . . , the question

arises whether that person is a passenger or a person in physical control of the motor

vehicle.”). If the occupants of Berres’s hypothetical bar were passengers, they would

face little danger of prosecution or license revocation.

       Lastly, Berres argues that the district court’s statement that she was “likely” to

drive is clearly erroneous. Berres labels this a “finding,” but this word is pulled from a


                                              5
sentence contained within a portion of the district court’s order which is simply a

summarizing paragraph: “She had the means to complete her journey home and was

likely to do so given that she was parked at a fast food restaurant and without a place to

stay for the night.” Berres offers no support for the proposition that likelihood of driving

is needed to reach a conclusion of physical control. Thus, even if disregarded as clearly

erroneous, the district court’s use of this word does not diminish the several pages of

thorough and well-cited analysis on physical control that precede it, nor the district

court’s ultimate conclusion.

       Berres’s proffered arguments are unpersuasive. She was found inebriated in the

driver’s seat of her operable car, at a location on the way to her home, with the keys a

brief walk away. No one else was present to indicate that she might simply have been a

passenger. Physical control is “meant to cover situations where an inebriated person is

found in a parked vehicle under circumstances where the car, without too much

difficulty, might again be started and become a source of danger to the operator, to

others, or to property.” Id. at 837. The district court correctly concluded that Berres was

in physical control of the vehicle.

       Affirmed.1




1
  The commissioner argued that the district court’s finding that Berres did not drive her
vehicle was clearly erroneous. This argument is rendered moot due to our disposition on
the issue of physical control.

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