Opinion
No. C5-96-90.
Filed August 13, 1996.
Appeal from the District Court, Goodhue County, File No. CX-95-1361.
Douglas W. Thomson, Lisa D. Lodin, Douglas W. Thomson, Ltd., (for Appellant).
Hubert H. Humphrey III, Attorney General, Peter R. Marker, Assistant Attorney General, (for Respondent).
Considered and decided by Willis, Presiding Judge, Davies, Judge, and Harten, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1994).
UNPUBLISHED OPINION
Appellant argues that his driver's license revocation should be rescinded because the investigating officers did not have sufficient reason to seize him and did not have probable cause to believe that he was intoxicated at the time he was driving his vehicle. We affirm.
FACTS
A deputy sheriff, seeing a horse dangerously close to a highway, stopped and turned on his squad car's red lights to slow approaching vehicles. Several vehicles slowed and pulled off to the right, but appellant Robert Kalass did not do so and he arrived just as the horse darted onto the road. Although appellant braked, he hit the horse, which then ran off.
Appellant immediately drove away.
Within 30 minutes, officers investigating the incident found in front of a restaurant in a nearby town a damaged vehicle matching the description of the one involved in the collision. A license check revealed that the vehicle was registered to appellant, so a deputy went inside and asked for appellant by name. Appellant presented himself and admitted driving the vehicle that struck the horse. He showed signs of intoxication and acknowledged having one to two drinks earlier.
He claimed also to have had three to four drinks at the restaurant after hitting the horse.
Appellant's driver's license was revoked pursuant to the implied consent law for an alcohol concentration over .10. He petitioned for judicial review; the trial court sustained the revocation. Appellant now challenges the initial seizure and also argues that the officers did not have probable cause to believe he was intoxicated at the time he was driving his vehicle.
DECISION I.
It is undisputed that the officers "seized" appellant at the restaurant. The issue is whether they had sufficient cause to do so. The seizure of an individual is lawful if the officer can articulate a "particularized and objective basis" to suspect that the person was engaged in criminal activity. Berge v. Commissioner of Pub. Safety, 374 N.W.2d 730, 732 (Minn. 1985).
The trial court ruled that the officers had an articulable suspicion to believe that appellant violated a statutory obligation to stop and give information under Minn. Stat. § 169.09, subd. 3 (1994). We agree with appellant's argument, apparently now undisputed by the state, that the statute does not apply because the duty to stop and give information applies only to an accident causing bodily injury or death to a person or an accident causing injury to an attended vehicle. Id., subds. 1, 2 (1994).
The Commissioner cites additional reasons to affirm the trial court decision, but appellant contends the Commissioner may not rely on a new theory raised for the first time on appeal.
See Thiele v. Stich, 425 N.W.2d 580, 582 (Minn. 1988) (party generally may not obtain review on theory not presented below). An appellate court will not, however, reverse a trial court's correct decision merely because it is based on an incorrect reason. Schweich v. Ziegler, Inc., 463 N.W.2d 722, 728 (Minn. 1990).
The officer here had reasonable suspicion to investigate appellant as a driver who did not notice or heed warning lights and who failed to react to the slowed and cautious traffic in the area. Appellant's further decision to leave the scene after striking the horse, despite the presence of a squad car, could be seen as evasive conduct of an impaired driver, giving rise to reasonable suspicion. See State v. Johnson, 444 N.W.2d 824, 827 (Minn. 1989) (evasive behavior raises reasonable suspicion of wrongdoing). The suspect vehicle, showing signs of the collision with the horse, was parked outside a restaurant and the registered owner was inside the restaurant. This provided the officers with reasonable suspicion that appellant had been the driver and, as a matter of law, supported the equivalent of an investigatory stop. Cf. State v. Pike, ___ N.W.2d ___ (Minn. July 3, 1996) (absent facts making it unreasonable to assume owner is driver, officer's knowledge that owner's license is suspended provides reasonable suspicion justifying Terry stop).
II.
Appellant claims the trial court erred in concluding that the officer had probable cause to believe he had been driving while under the influence. "The trial court's determination * * * of whether probable cause existed to request an alcohol concentration test * * * is a mixed question of law and fact."
Flamang v. Commissioner of Pub. Safety, 516 N.W.2d 577, 580 (Minn.App. 1994), review denied (Minn. July 27, 1994).
The totality of the circumstances must be considered.
Eggersgluss v. Commissioner of Pub. Safety, 393 N.W.2d 183, 185 (Minn. 1986).
The trial court noted that appellant admitted he had been driving, failed a field sobriety test, and said he had four to six drinks in the previous four hours (although he claimed most were subsequent to driving). He also "looked like he was under the influence at the time." We agree that these facts show the officer had probable cause to believe that appellant had driven while under the influence. See Costillo v. Commissioner of Pub. Safety, 416 N.W.2d 730, 733 (Minn. 1987) (objective probable cause existed where officer had reason to believe driver had rear-ended vehicle, given false name, and fled scene, and officer observed driver's bloodshot eyes, strong odor of alcohol, slurred speech, and belligerent behavior).
The trial court rejected the assertion of intervening drinking as a defense because it is an affirmative defense that was not before the court. See Dutcher v. Commissioner of Pub. Safety, 406 N.W.2d 333, 336 (Minn.App. 1987) (post-accident drinking is affirmative defense). On appeal appellant again attempts to assert intervening drinking as a defense, but the defense cannot be raised for the first time on appeal.
Because appellant failed to raise it validly in the trial court, it is now waived.