State v. Salonek

Full title: State of Minnesota, Respondent, v. Thomas James Salonek, Appellant

Court: Minnesota Court of Appeals

Date published: Aug 3, 1999

No. C9-98-2249 (Minn. Ct. App. Aug. 3, 1999)

Opinion

No. C9-98-2249.

Filed August 3, 1999.

Appeal from the District Court, McLeod County, File No. T0-98-359.

Mike Hatch, Attorney General, and Michael Junge, McLeod County Attorney, (for respondent)

Richard Lee Swanson, (for appellant)

Considered and decided by Harten, Presiding Judge, Parker, Judge,^__ and Thoreen, Judge.

__ Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to Minn. Const. art. VI, § 10.

This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (1998).

UNPUBLISHED OPINION

THOREEN, Judge[fn*] [fn*] Retired judge of the district court, serving as judge of the Minnesota Court of Appeals by appointment pursuant to Minn. Const. art. VI, § 10.

Thomas James Salonek appeals from his conviction of driving with an alcohol concentration in excess of .10 in violation of Minn. Stat. § 169.121, subd. 1(d) (1996). Salonek argues that the district court erred in determining that the arresting officer had probable cause to believe that Salonek was driving while impaired. Because the arresting officer had an adequate basis upon which to believe that Salonek's driving ability was impaired, we affirm.

FACTS

On December 7, 1997, at approximately 2:36 a.m., a police officer observed Salonek's vehicle cross over both the centerline and then cross over the fog line as it was taking a series of curves. The officer stopped the vehicle and detected an odor of alcohol coming from within it. He also noticed that Salonek's speech was slurred.

After completing the driver's license check, the officer asked Salonek to exit the vehicle and perform field sobriety tests. Salonek failed the one-legged stand test and the walk-and-turn test. The officer also administered a horizontal gaze nystagmus test (HGN), which indicated intoxication.

The officer tested a breath sample. Although Salonek did not fail the PBT, the test showed a presence of alcohol. The officer then placed Salonek under arrest for driving under the influence.

DECISION

There are no factual disputes in this case; Salonek stipulated to the police reports pursuant to a Lothenbach plea. See State v. Lothenbach , 296 N.W.2d 854 (Minn. 1980). Nor is the validity of the stop challenged. Thus, on review this court considers whether, as a matter of law, the arresting officer's observations provided an adequate basis to believe that Salonek's ability to drive was impaired. See Berge v. Commissioner of Pub. Safety , 374 N.W.2d 730, 732 (Minn. 1985).

Probable cause exists if all the facts and circumstances would warrant a cautious person in believing that the suspect is guilty. State v. Olson , 342 N.W.2d 638, 640 (Minn.App. 1985). We examine the issue from the point of view of a prudent and cautious police officer on the scene. State v. Harris , 265 Minn. 260, 264, 121 N.W.2d 327, 330-31 (1963). Furthermore, "whether certain indicia of consumption of alcohol are sufficient to satisfy a standard of probable cause depends on the facts and circumstances in each case." Clow v. Commissioner of Pub. Safety , 362 N.W.2d 360, 363 (Minn.App. 1985), review denied (Minn. Apr. 26, 1985).

In this case, the officer observed at least six indicia of intoxication prior to arresting Salonek, including: (1) failure to drive properly between the fog line and centerline; (2) odor of alcohol; (3) slurred speech; and (4) failure to satisfactorily perform three field sobriety tests. The totality of the circumstances supports the officer's conclusion that Salonek was under the influence.

We therefore affirm Salonek's conviction.

Affirmed.