                         This opinion will be unpublished and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
                                    A14-2032

                            Matt Anthony Haeg, petitioner,
                                     Appellant,

                                           vs.

                            Commissioner of Public Safety,
                                   Respondent.

                                   Filed July 6, 2015
                                       Affirmed
                                    Larkin, Judge

                              Scott County District Court
                               File No. 70-CV-14-3899


James H. Leviton, Minneapolis, Minnesota (for appellant)

Lori Swanson, Attorney General, Peter D. Magnuson, Assistant Attorney General,
St. Paul, Minnesota (for respondent)



      Considered and decided by Larkin, Presiding Judge; Rodenberg, Judge; and

Reyes, Judge.

                        UNPUBLISHED OPINION

LARKIN, Judge

      Appellant challenges the district court’s order sustaining the revocation of his

license to drive under the implied-consent law. He argues that the commissioner failed to
prove that he had driven, operated, or was in physical control of a motor vehicle. We

affirm.

                                           FACTS

          In February 2014, respondent Commissioner of Public Safety revoked appellant

Matt Haeg’s license to drive after Haeg was arrested for driving while impaired and

submitted to a breath test that indicated his alcohol concentration was above .08. Haeg

petitioned the district court for review, arguing, in part, that the commissioner failed to

prove that he was in physical control of a motor vehicle.

          After an implied-consent hearing, the district court sustained the revocation. The

district court found that on February 20, Officer Justin Schroepfer of the Elko New

Market Police Department responded to a report that a yellow truck was in a ditch. When

Officer Schroepfer arrived at the scene, there was no one in the driver’s seat of the yellow

truck, but there was a person seated in the passenger seat. Haeg was outside of the

yellow truck, talking with the female driver of another truck. Officer Schroepfer directed

Haeg to return to the yellow truck. When Haeg started walking back to the truck, he

nearly fell over. Officer Schroepfer noted that Haeg’s eyes were watery and glassy and

that Haeg smelled like an alcoholic beverage. Haeg told Officer Schroepfer that he was

coming from his shop in Elko New Market and that he “had two or three beers at his

shop.” Officer Schroepfer arrested Haeg after a preliminary breath test (PBT) indicated

that Haeg’s alcohol concentration was .175.

          Regarding whether Haeg had been in physical control of the yellow truck, the

district court stated, “Given that the driver’s seat was empty and someone was in the


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passenger’s seat when Officer Schroepfer arrived at the scene, it was reasonable for [the

officer] to infer that [Haeg] was the driver of the [truck] and had driven a vehicle while

under the influence of alcohol.” The district court noted that Haeg “stated that he was

coming from his shop in Elko New Market” and “never denied driving the truck.”

      Haeg moved the district court to vacate its order under Minn. R. Civ. P. 60.02(f)

and to amend its findings under Minn. R. Civ. P. 52.02. The district court issued an

amended order with the following additional findings:

             4. [Haeg] admitted he was coming from his shop in Elko
             New Market. [Haeg] admitted he had two or three beers at
             his shop. Although Officer Schroepfer did not observe
             [Haeg] driving, [Haeg] never denied that he was the driver of
             the vehicle.
             5. Officer Schroepfer had a reasonable basis to believe
             [Haeg] was driving his vehicle, the yellow truck. [The
             commissioner] has proven by a preponderance of the
             evidence that [Haeg] had been driving or in physical control
             of the motor vehicle.

      The district court once again sustained the commissioner’s revocation of Haeg’s

license to drive. Haeg appeals.

                                    DECISION

      Haeg argues that the district court erred by sustaining the revocation of his license

to drive because the commissioner failed to prove that Haeg had been in physical control

of a motor vehicle. To sustain the revocation of a person’s driving privileges, the

commissioner must prove by a preponderance of the evidence that the person “had been

driving, operating, or in physical control of a motor vehicle in violation of section

169A.20 (driving while impaired) and that the person submitted to a test and the test



                                            3
results indicate an alcohol concentration of 0.08.” Minn. Stat. § 169A.52, subd. 4(a)

(2012); Llona v. Comm’r of Pub. Safety, 389 N.W.2d 210, 211 (Minn. App. 1986);

Roberts v. Comm’r of Pub. Safety, 371 N.W.2d 605, 607 (Minn. App. 1985), review

denied (Minn. Oct. 11, 1985). Under the preponderance of the evidence standard, a fact

is established if it is “more probable that the fact exists than that the contrary exists.”

City of Lake Elmo v. Metro. Council, 685 N.W.2d 1, 4 (Minn. 2004).

       “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). “Due regard is given the district

court’s opportunity to judge the credibility of witnesses, and findings of fact will not be

set aside unless clearly erroneous.” Id. at 22. “Once the facts are established, the issue of

physical control is a question of law, which this court reviews de novo.” Id.

       Haeg argues that the commissioner “failed to call any witnesses who testified they

perceived [him] in actual physical control of any vehicle.”         But direct evidence is

unnecessary because physical control can be proven by circumstantial evidence. 1 See

State v. Starfield, 481 N.W.2d 834, 838 (Minn. 1992) (stating that, in the absence of

direct evidence, “there . . . may be circumstantial evidence from which the jury could find

that defendant had driven the car to its resting place”); Hunt v. Comm’r of Pub. Safety,


1
  “‘Direct evidence’ is ‘[e]vidence that is based on personal knowledge or observation
and that, if true, proves a fact without inference or presumption.’” Bernhardt v. State,
684 N.W.2d 465, 477 n.11 (Minn. 2004) (quoting Black’s Law Dictionary 596 (8th ed.
2004)). “‘Circumstantial evidence’ is defined as ‘[e]vidence based on inference and not
on personal knowledge or observation’ and ‘[a]ll evidence that is not given by eyewitness
testimony.’” Id. (quoting Black’s Law Dictionary 595).

                                             4
356 N.W.2d 801, 803 (Minn. App. 1984) (noting that there was “strong circumstantial

evidence” supporting the district court’s finding that the defendant was the driver of the

vehicle).

       “Mere presence in or about a vehicle is insufficient to show physical control . . . .”

State v. Fleck, 777 N.W.2d 233, 236 (Minn. 2010). Rather, “it is the overall situation that

is determinative.” Id. Relevant circumstances include whether the motor was running,

whether keys were in the ignition, whether the vehicle was parked or stalled on or near

the roadway, and whether the vehicle was parked “in some predicament such as a ditch

. . . or snow bank, indicating to the officer arriving on the scene that the driver had

recently put the vehicle there through erratic driving.” Roberts v. Comm’r of Pub. Safety,

371 N.W.2d 605, 607 (Minn. App. 1985) (quotation omitted), review denied (Minn.

Oct. 11, 1985). Courts also consider “the person’s location in proximity to the vehicle;

. . . 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.

       Here, the yellow truck was stopped along the roadway.            Officer Schroepfer

testified that the yellow truck was running and that the individual in the passenger’s seat

stated that “he couldn’t get out of the passenger’s side because the snow was packed up

onto the vehicle.” That testimony was undisputed in district court. The direct evidence

that the yellow truck was running allows an inference that the keys to the truck were in

the truck’s ignition. Moreover, it is undisputed that no one was in the driver’s seat of the

yellow truck. Haeg was outside of the truck but within walking distance of the truck.

There were two other people at the scene: one was seated in the passenger seat of the


                                             5
yellow truck and the other was seated in the driver’s seat of the second truck. The overall

situation establishes that it was more probable than not that Haeg had been driving,

operating, or in physical control of the yellow truck. See Flamang v. Comm’r of Pub.

Safety, 516 N.W.2d 577, 580-81 (Minn. App. 1994) (noting that this court has found

physical control where a vehicle was “stuck in a snow-filled ditch”), review denied

(Minn. July 27, 1994); Snyder v. Comm’r of Pub. Safety, 496 N.W.2d 858, 860 (Minn.

App. 1993) (concluding that the district court erred by determining that an officer did not

have probable cause to believe a suspect had driven while intoxicated, in part because

“the driver’s seat was empty and [the suspect] was outside the car”).

       Haeg notes that the commissioner did not call him, the passenger in the yellow

truck, or the female driver of the second truck as witnesses. He argues that this failure

“raises an inference unfavorable to the commissioner.” As support, he cites Blumberg v.

Palm, in which the supreme court stated that “[a]n unexplained failure to call a witness or

to produce evidence within the control of a party permits an inference that the witness, if

called, or the evidence, if produced, would be unfavorable to the party.” 238 Minn. 249,

254, 56 N.W.2d 412, 415 (1953).         To the extent that a unfavorable inference was

permissible, we defer to the fact-finder’s weighing of that inference. See Sefkow v.

Sefkow, 427 N.W.2d 203, 210 (Minn. 1988) (stating that it is inappropriate for appellate

courts to reweigh the evidence or find facts on appeal).

       Haeg also argues that some of the district court’s findings are clearly erroneous.

For example, he argues that there is no evidence to support the district court’s findings

that he was the owner of the yellow truck, that the truck was in a ditch, or that the truck’s


                                             6
passenger door would not open because there was snow around it. Even if those findings

were erroneous, that error would not provide a basis to reverse because the undisputed

circumstances establish, by a preponderance of the evidence, that Haeg had been driving,

operating, or in physical control of the yellow truck. See Minn. R. Civ. P. 61 (requiring

that harmless error be ignored).

       In sum, although the commissioner could have presented additional evidence,

reversal is not warranted so long as the commissioner presented sufficient evidence.

Because the undisputed circumstances establish, circumstantially, that Haeg had been

driving, operating, or in physical control of the yellow truck, we affirm the district court’s

order sustaining the commissioner’s revocation of Haeg’s license to drive.

       Affirmed.




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