Filed October 29, 2002.
Appeal from the District Court, Waseca County, File No. C301639.
Thomas K. Hagen, (for appellant)
Mike Hatch, Attorney General, Melissa J. Eberhart, Assistant Attorney General, (for respondent)
Considered and decided by Shumaker, Presiding Judge, Schumacher, Judge, and Klaphake, Judge.
This opinion will be unpublished and may not be cited except as provided by Minn. Stat. § 480A.08, subd. 3 (2000).
Appellant Kimberly Jean Murphy challenges the revocation of her driver's liense, arguing that the police officer did not have probable cause to believe that she had an alcohol concentration of 0.10 or more while driving a vehicle. Because the facts and circumstances establish a temporal connection between Murphy's alcohol concentration in excess of 0.10 and her driving, we affirm.
Appellant argues the commissioner failed to show that the police officer had probable cause to suspect she had been driving under the influence of alcohol because there was no temporal connection between her intoxication and her driving. We disagree.
Whether there is probable cause to believe the person had been driving while impaired depends on findings of fact that are reviewed for clear error, but it is ultimately a question of law to be reviewed de novo. State v. Horner, 617 N.W.2d 789, 795 (Minn. 2000). A reviewing court must consider the totality of the circumstances when determining whether probable cause existed. Eggersgluss v. Comm'r of Pub. Safety, 393 N.W.2d 183, 185 (Minn. 1986). Probable cause is assessed "from the point of view of the officer, giving deference to the officer's experience and judgment." Delong v. Comm'r of Pub. Safety, 386 N.W.2d 296, 298 (Minn.App. 1986), review denied (Minn. June 13, 1986)
Appellant cites Dietrich v. Comm'r of Pub. Safety, 363 N.W.2d 801, 803 (Minn.App. 1985), to support her argument that no "temporal connection" existed between her intoxication and any driving, operating, or controlling of the vehicle. But " Dietrich does not establish a rule of law that the officer must explicitly testify as to the time of an accident." Graham v. Comm'r of Pub. Safety, 374 N.W.2d 809, 811 (Minn.App. 1985).
In Delong, we held that the unbroken sequence of events related to the officer by the driver established the necessary temporal connection. Delong, 386 N.W.2d at 298-99. The driver told the officer that he became stuck in a ditch, received a ride to a truck stop, called for a tow truck, and then received a ride back to the accident scene, where he showed signs of intoxication. Id. We distinguished Dietrich as a case in which "no time frame whatsoever was established." Id. at 299.
Here, as in Delong, there was also an unbroken sequence of events. Appellant told the officer that she had four to five drinks at a bar, was involved in an accident while driving home, obtained a ride home from a passing motorist immediately following the accident, and called a tow truck upon arriving home. Appellant stated that she had been home for ten to fifteen minutes before the first officer arrived. Based on what appellant told the officer, he determined that the accident had occurred between 2:50 and 3:00 a.m. He did so by estimating that it would have taken appellant about 30 minutes to get home and subtracting that from the time appellant had called the towing company. About an hour after the estimated time of the accident, appellant still had an alcohol concentration of .16, well over the legal limit. Appellant stated that she did not consume any alcohol after the accident. Under these circumstances, we conclude that the officer established a "time frame * * * showing a connection between drinking and driving." Delong, 386 N.W.2d 298.
We therefore affirm the commissioner's revocation of appellant's driver's license.