Opinion
No. C2-99-1874.
Filed June 27, 2000.
Appeal from the District Court, Ramsey County, File No. C7-99-5365.
Michael C. Leurer, (pro se appellant)
Mike Hatch, Attorney General, Joel A. Watne, Assistant Attorney General, (for respondent)
Considered and decided by Klaphake, Presiding Judge, Kalitowski, Judge, and Stoneburner, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).
UNPUBLISHED OPINION
Appellant Michael Leurer's driver's license was cancelled when the Commissioner of Public Safety determined that Leurer had consumed alcohol in violation of a total abstinence restriction. Leurer petitioned the district court for reinstatement of his driving privileges, claiming he had consumed only non-alcoholic beer. The district court denied Leurer's petition. Leurer appeals, challenging the district court's determination that he was not entitled to reinstatement. Because the record contains evidence reasonably supporting the court's findings, we affirm.
DECISION
A person whose driver's license has been cancelled may petition the district court for reinstatement of his driving privileges. Minn. Stat. § 171.19 (1998). The petitioner bears the burden of proving that he is entitled to reinstatement. Gardner v. Commissioner of Pub. Safety, 423 N.W.2d 110, 113 (Minn.App. 1988). The sole issue before the district court was whether Leurer violated the restrictions on his driver's license by consuming alcohol.
Leurer argues that the evidence did not support the district court's conclusion on this issue. The record discloses the following evidence supporting the conclusion that Leurer had consumed alcohol: (1) an officer who discovered Leurer in his vehicle detected an odor of alcohol on Leurer's breath; (2) a portable breath test displayed a positive reading, indicating the presence of alcohol in Leurer's body; and (3) Leurer had driven his vehicle to the side of the road, allegedly to sleep, which, when joined with the other evidence, provides an inference of alcohol consumption.
Leurer challenges the district court's finding that his exculpatory testimony was not credible. But the determination of witness credibility lies within the province of the court as finder of fact, and an appellate court generally defers to a district court's credibility determination. Convady v. Commissioner of Pub. Safety, 396 N.W.2d 914, 916 (Minn.App. 1986). By way of an affidavit from a Bureau of Criminal Apprehension expert, the commissioner presented unrefuted evidence that Leurer would have had to consume at least seven non-alcoholic beverages between the time he claims he began drinking and the time of the breath test in order for the portable testing unit to display a "positive" reading. Considering Leurer's testimony that he drank only two non-alcoholic beers, the district court's credibility determination was not clearly erroneous. See Burke v. Commissioner of Pub. Safety, 381 N.W.2d 903, 904 (Minn.App. 1986) (district court's factual findings in implied consent cases not disturbed unless clearly erroneous).
Affirmed.