352 N.W.2d 518 (Minn.App. 1984), C9-84-572, Able v. Commissioner of Public Safety

Docket NºC9-84-572.
Citation352 N.W.2d 518
Opinion JudgeThe opinion of the court was delivered by: Parker
Party NameJohn Tevens ABLE, Appellant, v. COMMISSIONER OF PUBLIC SAFETY, Respondent.
AttorneyWilliam R. Kennedy Henn Cnty Pub. Def. Frances B. Moore, Asst. Pub. Attorney C-2200 Gov't Center, Minneapolis, Minnesota 55487, for appellant.
Case DateAugust 07, 1984
CourtCourt of Appeals of Minnesota

Page 518

352 N.W.2d 518 (Minn.App. 1984)

John Tevens ABLE, Appellant,

v.

COMMISSIONER OF PUBLIC SAFETY, Respondent.

No. C9-84-572.

Court of Appeals of Minnesota.

August 7, 1984

Syllabus by the Court

The record does not support the finding that a store clerk who concluded that a

Page 519

customer was intoxicated and observed him get in his car made a valid citizen's arrest for D.W.I. because it was not established that the D.W.I. was committed in the clerk's presence or that an arrest for D.W.I. was made.

William R. Kennedy, Hennepin County Public Defender, Frances B. Moore, Asst. Public Defender, Minneapolis, for appellant.

Hubert H. Humphrey, III, Atty. Gen., Linda F. Close, Joel A. Watne, Sp. Asst. Attys. Gen., St. Paul, for respondent.

Considered and decided by POPOVICH, C.J., and PARKER and CRIPPEN, JJ., with oral argument waived.

OPINION

PARKER, Judge.

Appellant John T. Able challenges the revocation of his driving privileges under Minn.Stat. Sec. 169.123 (Supp.1983), the implied consent statute. Appellant was arrested for D.W.I. and subsequently refused to submit to chemical testing. On appeal he contends his arrest was illegal. We remand.

FACTS

Around midnight on January 9, 1984, Colleen Bonneville, a clerk at a 7-Eleven Store, observed appellant eating one of the store's hamburgers and putting a can of chili in his pocket. She asked him to pay for the items. At this time she observed that he was obnoxious and intoxicated and she smelled alcohol on him. He hurried out the door but returned a short time later. He purchased cigarettes but refused to pay for the items he had taken.

Bonneville saw appellant open the car door and get into the car, although she did not testify whether it was the driver's or passenger's side. She had someone else get the license number and description of the car. She called the police who located appellant at his house. According to the officer's testimony, appellant became hysterical and fell on the floor crying and screaming. His speech was slurred, his eyes were red and bloodshot, his movements were unsure and he had trouble walking. With the assistance of the officer, appellant was placed in the squad car. He was taken back to the 7-Eleven where Bonneville identified him as the shoplifter. She signed a citizen's arrest form. The form was not introduced at trial, and it is unclear whether the...

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