Berge v. Commissioner of Public Safety, C4-84-2181

• Decision Date: 18 October 1985
• Docket Number: No. C4-84-2181,C4-84-2181
• Citation: 374 N.W.2d 730
• Parties: Kent BERGE, petitioner, Respondent, v. COMMISSIONER OF PUBLIC SAFETY, Appellant.
• Court: Minnesota Supreme Court

Page 730

374 N.W.2d 730

Kent BERGE, petitioner, Respondent, v. COMMISSIONER OF PUBLIC SAFETY, Appellant.

No. C4-84-2181.

Supreme Court of Minnesota.

Oct. 18, 1985

.

Syllabus by the Court

1. Where the trial court credits the uncontradicted testimony of the arresting officer as to the facts relating to the stop of a motor vehicle, the appellate court, in reviewing the trial court's decision as to the validity of the stop, should not use the "clearly erroneous" test but should analyze the testimony of the officer and determine whether, as a matter of law, his observations provided an objective basis for the stop; in this case the stop was valid because although the officer did not actually see the driver run a stop sign, he contemporaneously observed facts which justified the inference that the driver did so.

2-3. The officer's observations after the stop gave him probable cause to arrest the driver for driving while under the influence of alcohol, and the trial court was not justified in rejecting the Intoxilyzer test results, which indicated that the driver had an alcohol concentration of 0.10 or more.

Hubert H. Humphrey, III, Atty. Gen., Blake, Shepard, Sp. Asst. Attys. Gen., St. Paul, for appellant.

Wayne A. Pokorny, Excelsior, for respondent.

Considered and decided by the court en banc without oral argument.

AMDAHL, Chief Justice.

The Commissioner of Public Safety revoked the driver's license of Kent Orrin Berge pursuant to the implied consent law, Minn.Stat. Sec. 609.123, subd. 4 (1984), because the results of the chemical breath test to which Berge submitted, shortly after being arrested for driving while under the influence, indicated that he had an alcohol concentration of 0.10 or more. The trial court rescinded the revocation, and a panel of the Court of Appeals, 370 N.W.2d 75, by a 2-1 vote, affirmed the trial court. We grant the commissioner's petition for review, reverse the decisions of the Court of Appeals and the trial court, and reinstate the revocation of Berge's license. In so doing, we hold (1) that the officer was justified in stopping Berge, (2) that the officer's observations after the stop gave him probable cause to arrest Berge, and (3) that the trial court was not justified in rejecting the test results.

Shortly before 3:00 a.m. on August 13, 1984, Carver County Deputy Sheriff Rod Peddycoart, a 14-year veteran of law enforcement work, was driving north on a road toward the "Five Corners" intersection where Norwood and Young America meet. Three different roads meet at the intersection, which is regulated by stop signs. From a distance of 1/2 to 3/4 blocks from the intersection he saw a car go through the intersection from his right to his left, that is, in a southwesterly direction on a road that runs southwesterly and northeasterly. The car should have stopped at a stop sign that is set back about 20 feet from the intersection. Peddycoart's view of the stop sign was blocked but he could see the car as it entered the intersection. By his estimate, the vehicle was traveling "at least" 20 to 25 miles per hour and possibly as high as 30 to 35 miles per hour when it entered the intersection. Based on these facts, Peddycoart concluded that the car had not stopped for the stop sign. That is, he "believed" on the basis of his experience as an officer that the car could not have attained such a speed in 20 feet if it had stopped as required. Accordingly, he decided to stop the car. He was not able to catch up with the car and stop it until just after the car turned onto Highway 212, which is 4/10 of a mile from "Five Corners." Based on this fact, Peddycoart believed that the car had exceeded the speed limit while driving on the stretch of road leading up to Highway 212. He also saw the car drive in the center of the road, that is, with part of the car to the left of the imaginary center line, there being no actual center line.

After stopping the car, he approached, asked to see the license of the driver, Berge, and told Berge that he had not stopped at the intersection at "Five Corners." When Berge said he had stopped, Peddycoart told him the basis for his conclusion. Berge replied that he had simply slowed down and that he continued driving without stopping when he saw that no one was coming. Peddycoart smelled a "strong odor of an alcoholic beverage" and noted that Berge's eyes were "watery and slightly bloodshot" and his speech "slightly slurred." Peddycoart then had Berge get out and perform three different field-sobriety tests. Berge did well on the finger-to-nose test, he "failed" the heel-to-toe test, and it was not until the third try that he was able to stand on just one foot and count to ten. Peddycoart then administered a preliminary screening test, which is calibrated to register "fail" if the driver's blood alcohol concentration is .11 or more. Berge failed that test.

Peddycoart then arrested Berge and transported him to the sheriff's office where Sergeant Robert Pagelkopf administered the breath test, which Berge agreed to take. The Intoxilyzer brand breath testing machine was used. The first breath sample was rejected by the machine as inadequate. The second breath sample was deemed poor but adequate. The reading obtained with this sample was .112, with a replicate reading of .117, and the reading obtained using another sample was .109, with a replicate reading of .110. The machine showed a correlation percentage of 96% among the four readings. The reading finally assigned to Berge was .10, which was obtained by taking the...