Keane v. Commissioner of Public Safety
| Decision Date | 31 December 1984 |
| Docket Number | No. C1-84-1196,C1-84-1196 |
| Citation | 360 N.W.2d 357 |
| Parties | Kevin Patrick KEANE, Petitioner, Respondent, v. COMMISSIONER OF PUBLIC SAFETY, Appellant. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
Observation of very erratic driving, a moderate odor of alcohol, and a balance problem are sufficient to establish reasonable and probable cause for believing that a person is under the influence.
Gary L. Huusko, St. Paul, for respondent.
Hubert H. Humphrey, III, Atty. Gen., James B. Early, Sp. Asst. Atty. Gen., St. Paul, for appellant.
Heard, considered, and decided by LESLIE, P.J., and LANSING and WOZNIAK, JJ.
The Commissioner of Public Safety appeals from an order rescinding the revocation of respondent Kevin Keane's driving privileges under the implied consent statute. We reverse.
Shortly after midnight on April 19, 1984, Lovell Jackson, a Neighborhood Assistance Officer with the St. Paul Police Department (not a certified peace officer), was patrolling Como Avenue when he observed respondent Keane driving very erratically. Keane passed Jackson on the right and then drove up onto the east boulevard, with all four tires leaving the street. A short distance later, Keane drove across the westbound lane and onto the west boulevard with two wheels leaving the street. Jackson radioed the police dispatcher and followed Keane to his home without observing additional erratic driving.
At Keane's residence, Jackson asked Keane for the address, radioed this information, and told Keane to wait for a police officer. Jackson smelled alcohol on Keane's breath and noted his slow speech. Jackson testified that, although Keane was not falling all over, he seemed to be fighting to stay straight. Jackson's opinion was that Keane was under the influence.
Officer Dennis Meyer responded to Jackson's radio reports and drove to Keane's residence. As Meyer questioned Keane, he noted a moderate odor of alcohol, watery eyes, and clear speech. He described Keane as walking very stiffly, as if he was trying to avoid any swaying. In Meyer's opinion, Keane was under the influence.
Meyer arrested Keane and transported him to the police station. Meyer instructed Jackson to go back and check for any evidence of an accident. After Jackson found no tire tracks or ruts on the boulevard, he also went to the police station. Meyer asked Jackson to make a citizen's arrest for D.W.I., which Jackson did. Meyer completed the implied consent advisory, after which Keane refused to take the breath test. Keane's license was then revoked. In making out his report, Meyer did not mention the occurrence of an accident and did not list it as a factor which invoked the implied consent law.
The trial court reversed the Commissioner's revocation of Keane's license, stating that Jackson did not arrest Keane at his residence, that Meyer did not lawfully arrest Keane because there was no accident, and that Jackson did not have reasonable and probable grounds to arrest Keane at the police station.
Was Keane lawfully arrested, and did probable cause exist to believe him to be under the influence?
Under Minn.Stat. § 169.123 (1982), a chemical test may be required of a person when an officer has reasonable and probable grounds to believe the person was driving a motor vehicle while under the influence and one of the following four conditions exists:
(1) the driver has been lawfully arrested for driving under the influence;
(2) the driver has been involved in a motor vehicle accident or collision involving property damage, personal injury, or death;
(3) the driver has refused a preliminary test; or
(4) the driver has failed a preliminary test.
Only the first two conditions are at issue here.
The Commissioner contends that Keane was lawfully arrested at three separate times prior to being requested to take the breath test: once at the scene by Jackson, once at the scene by Meyer, and once at the police station by Jackson. We begin our analysis with Jackson's arrest of Keane at the police station.
A private person has the power to make a citizen's arrest for a D.W.I. violation committed in that person's presence. Able v. Commissioner of Public Safety, 352 N.W.2d 518 (Minn.Ct.App.1984). For a D.W.I. arrest, there must be probable cause to believe the defendant was driving a motor vehicle while under the influence of alcohol. State v. Olson, 342 N.W.2d 638 (Minn.Ct.App.1984).
It is undisputed that the driving occurred in Jackson's presence and that Jackson was properly informed of the reason for the arrest at the police station. Thus, the only remaining question is whether Jackson had probable cause to believe Keane was under the influence.
In order to constitute reasonable and probable grounds to believe a person is under the influence, the citizen making the...
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