State of Minnesota, Respondent,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2016).

STATE OF MINNESOTA
IN COURT OF APPEALS
A16-1639

State of Minnesota,
Respondent,

vs.

Neil Ray Lystad,
Appellant

Filed August 28, 2017
Affirmed
Worke, Judge

Lake of the Woods County District Court
File No. 39-CR-14-213

Lori Swanson, Attorney General, St. Paul, Minnesota; and

James C. Austad, Lake of the Woods County Attorney, Baudette, Minnesota (for
respondent)

Alan B. Fish, Dennis H. Ingold, Roseau, Minnesota (for appellant)

Considered and decided by Worke, Presiding Judge; Johnson, Judge; and Larkin,
Judge.
U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant challenges the sufficiency of the evidence for his test-refusal and driving-
while-impaired (DWI) convictions, arguing that the state failed to prove that he drove ,
operated, or was in physical control of a motor vehicle. We affirm.
2
FACTS
On September 20, 2014, Deputy Ben Duick received a tip of a possible drunk driver
with North Dakota license plates near Williams, Minnesota. The tipster identified R.W.
as the driver. Deputy Duick and Deputy Brad Abbey headed towards Williams. Based on
the tip, they expected R.W. and his wife A.W. to be driving to the home of appellant Neil
Ray Lystad.
At approximately 11:32 p.m., the officers observed a pickup truck with one taillight
on pulled over on the side of the road. It had Minnesota license plates. The officers pulled
behind the vehicle. The officers observed that the vehicle’s drive shaft had fallen on the
ground underneath t he vehicle. It appeared that the vehicle had recently pulled over
because there were fresh tire tracks on the grass.
Both deputies approached the pickup. A person identified as Lystad was in the
driver’s seat, and A.W. was in the passenger’s seat. Th e keys were in the ignition and the
headlights were on. The deputies smelled alcohol and noticed that Lystad’s speech was
slurred. Lystad got out of the vehicle . He had poor bala nce and fell over not long after
exiting. Lystad admitted that he was too intoxicated to drive. He also said, “I pulled over.”
Lystad twice refused to take a field sobriety test or a preliminary breath test (PBT). He
was arrested for DWI.
Following the arrest, t he officers t ransported Lystad to the Sheriff’s Office for
booking. On the way, they took A.W. to Lystad’s residence where she and R.W. were
staying. On the drive to his residence , Lystad made several unsolicited statements. He
said that they took the truck out “for a whip around the block.” He als o said, “[W]e were
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buzzed up.” When the deputies dropped A.W. off at Lystad’s, there was a car parked on
the property with North Dakota license plates. They matched the license plate the tipster
gave Deputy Duick. A.W. told the officers that R.W. was not with her and Lystad in
Williams.
After the deputies dropped A.W. off, Lystad continued to make unsolicited
statements. He asked, “If I blew over a 0.20 is that a double?” He asked the same question
about other levels of blood alcohol content. When he was told that there is no such thing
as a double DWI, he said, “[Y]es there is.”
When they arrived, Deputy Abbey read Lystad the implied-consent advisory. With
the deputy’s assistance, Lystad tried to contact an attorney . When he was unsuccessful,
Lystad argued with the deputy. The deputy told Lystad that if he did not continue to attempt
to contact an attorney, his attorney time would end and he w ould be considered to have
refused the test. L ystad grabbed the implied-consent form out of the officer’s hands and
tore it up.
Lystad was charged with second -degree test refusal, in violation of Minn. Stat.
§§ 169A.20, subd. 2, .25, subd. 2 (2014), and second-degree DWI, in violation of Minn.
Stat. §§ 169A.20, subd. 1(1), .25, subd. 2 (2014). He moved to dismiss the charges for lack
of probable cause. The district court denied the motion.
The matter proceeded to trial. A video from the squad car wa s played for the jury
and Deputy Duick and Deputy Abbey testified on behalf of the state. Both deputies
testified that you cannot drive a vehicle without a drive shaft unless the vehicle has four -
wheel drive.
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Lystad testified in his own defense. He sa id that R.W. was doing repa ir work on
Lystad’s pickup. R.W. finished working on the truck, and R.W., A. W., and Lystad drove
it to a bar in Williams. When they left the bar, R.W. was driving, A.W. was sitting on the
passenger side, and Lystad was sitting in the middle between R.W. and A.W.
On the drive home , they heard noises coming from underneath the truck. They
pulled over and discovered the issue with the drive shaft. Lystad testified that the pickup
had four-wheel drive. He indicated that, despi te the broken drive shaft, the vehicle could
have been driven. The drive shaft, however, would have dragged on the pavement. They
were trying to figure out how they were going to get home w hen they saw headlights .
R.W., who was on probation, said, “There’s the cops,” and then got out of the car and ran.
The jury found Lystad guilty of both offenses. The district court sentenced Lystad
on the test-refusal count to 365 days in jail, stayed 275 of those days, and placed Lystad on
probation for four years. This appeal followed.
D E C I S I O N
Lystad challenges the sufficiency of the evidence for his test-refusal and second-
degree DWI convictions. We first address the second-degree DWI conviction.
Second-degree DWI
To convict Lystad of this offense, the state had to prove beyond a reasonable doubt
that he drove, operated, or was in physical control of a motor vehicle while under the
influence of alcohol. Minn. Stat. § 169A.20, subd. 1(1). Lystad concedes that he was
intoxicated and does not challenge the jury’s determination that he was under the influence
5
of alcohol. Lystad argues only that the state failed to prove beyond a reasonable doubt that
he drove, operated, or was in physical control of the pickup.1
Lystad claims that the heightened circumstantial-evidence standard applies. While
Lystad admitted driving the vehicle and there is other direct evidence that Lystad was at
least in physical control of the truck, we apply the more exacting circumstantial -evidence
standard because Lystad’s claim fails under either standard. See State v. Silvernail, 831
N.W.2d 594, 598 (Minn. 2013) (declining to resolve a dispute over whether the direct - or
circumstantial-evidence standard applied because “even under the more favorable
[circumstantial-evidence] standard proposed by [defendant], the record contains sufficient
evidence to support the jury’s verdict”).
When reviewing the sufficiency of the evidence, this court views “the evidence in
the light most favorable to the verdict and assume[s] that the factfinder disbelieved any
testimony conflicting with that verdict.” State v. Holliday, 745 N.W.2d 556, 562 (M inn.
2008) (quotation omitted). “The verdict will not be overturned if, giving due regard to the
presumption of innocence and the prosecution’s burden of proving guilt beyond a
reasonable doubt, the jury could reasonably have found the defendant guilty of the charged
offense.” Id. (quotation omitted).

1 Lystad also argues that “[b]ecause the deputies did not have probable cause to arrest
[him] for a [DWI] offense,” his second -degree DWI conviction must be reversed. But
while Lystad challenged probable cause for the second-degree DWI charge in district court,
Lystad did not challenge probable cau se for the arrest. We generally do not consider
matters not argued in district court. Roby v. State , 547 N.W.2d 354, 357 (Minn. 1996).
Moreover, even if we considered this argument, as discussed below, the officers did have
probable cause to arrest Lystad.
6
When a conviction is based on circumstantial evidence, we use a two-step process
to assess the sufficiency of the evidence to sustain the conviction. Silvernail, 831 N.W.2d
at 598. First, we identify the circumstances proved. Id. Second, we “determine whether
the circumstances proved are consistent with guilt and inconsistent with any rational
hypothesis except that of guilt,” giving no deference to the factfinder’s choice among
reasonable inferences. Id. at 599 (quotations omitted). “To successfully challenge a
conviction based upon circumstantial evidence, a defendant must point to evidence in the
record that is consistent with a rational theory other than guilt.” State v. Taylor , 650
N.W.2d 190, 206 (Minn. 2002).
The following circumstances were proved at trial: (1) When police encountered the
pickup, Lystad was in the driver’s seat, the keys were in the ignition, and the vehicle’s
headlights and taillight were on; (2) the vehicle had Minnesota license plates and belonged
to Lystad; (3) it looked like the vehicle had recently pulled over because there were fres h
tire tracks in the grass; (4 ) Lystad told the officers that he “pulled over”; (5) Lystad
admitted that he was too intoxicated to drive ; (6) the pickup’s drive shaft had partially
fallen off; (7) the pickup has four -wheel drive and could have been driven, but the drive
shaft would have dragged on the ground; (8) A.W. told police that R.W. was at Lystad’s
and did not go to the bar with her and Lystad; (9) there was a vehicle at Lystad’s home
with North Dakota license plates that matched those described by the tipster who contacted
Deputy Duick; (10) Lystad told police that they took the pickup out “for a whip around the
block” and were “buzzed up”; and (11) Lystad asked the officers about the possibility that
he would be charged with a “double” DWI.
7
The above circumstances are consistent with the hypothesis that Lystad drove the
vehicle to the side of the road . Lystad argues tha t the circumstances are also consistent
with his testimony that R.W. drove the truck and ran when he saw police approaching. But
this hypothesis is contradicted by the evidence: Lystad was sitting in the driver’s seat,
police did not see anyone running f rom the vehicle, A.W. told police that R.W. was not
with her and Lystad that evening, the vehicle that the citizen tipster had seen R.W. driving
earlier in the day appears to have been at Lystad’s residence when police dropped A.W.
off, and Lystad admitted to police that he had pulled the truck over. Lystad’s testimony
that R.W. was driving is also inconsistent wi th the verdict, and we “assume that the
factfinder disbelieved any testimony conflicting with th[e] verdict.” Holliday, 745 N.W.2d
at 562. Lyst ad’s version of events is not a reasonable explanation of the evidence, and
“possibilities of innocence do not require reversal of a jury verdict so long as the evidence
taken as a whole makes such theories seem unreasonable.” Taylor, 650 N.W.2d at 206
(quotation omitted). The only rational explanation of the evidence is that Lystad drove the
pickup to the side of the road.
Even if the state had failed to prove that Lystad drove the pickup, the state proved
beyond a reasonable doubt that Lystad was in “physical control” of the pickup. See Minn.
Stat. § 169A.20, subd. 1 (2014). “[A] person is in physical control of a vehicle if he has
the means to initiate any movement of that vehicle, and he is in close proximity to the
operating controls of the vehic le.” State v. Fleck , 777 N.W.2d 233, 236 (Minn. 2010).
“[P]hysical control should be given the broadest possible effect” and “is meant to cover
situations when an intoxicated person is found in a parked vehicle under circumstances in
8
which the [vehicle], without too much difficulty, might again be started and become a
source of danger to the operator, to others, or to property.” Id. (quotations omitted).
Lystad argues that he was not in physical control of the pickup because the broken
drive shaft made it inoperable. But both deputies testified that the vehicle could have been
driven if it had four-wheel drive, and Lystad testified that the vehicle had four-wheel drive.
Lystad also indicated that, although the drive shaft would have dragged on the ground, the
vehicle could have been driven. Lystad was sitting in the driver’s seat and had the key in
the ignition. The circumstances proved establish that he was in close proximity to the
controls of the vehicle and had the means to move the vehicle and make it a danger to
himself and others. The circumstances proved are inconsistent with any rational hypothesis
that Lystad did not have physical control of the vehicle.
The evidence was sufficient to convict Lystad of second -degree DWI because it
established that Lystad drove and was in phys ical control of the pickup while under the
influence of alcohol.
Test refusal
To convict Lystad of test-refusal, the state had to prove, among other things, that, at
the time of arrest, police had probable cause that he drove, operated, or had physical control
of the vehicle while impaired. 2 See Minn. Stat. §§ 169A.51, .52 (2014); see also Minn.

2 Lystad also challenges the district court’s denial of his motion to dismiss the test-refusal
charge for lack of probable cause. Once a defendant has been found guilty beyond a
reasonable doubt, a probable -cause challenge becomes irrelevant because the standard of
proof beyond a reasonable doubt “is much higher than probable cause.” State v. Holmberg,
527 N.W.2d 100, 103 (Minn. App. 1995), review denied (Minn. Mar. 21, 1995) ; State v.
Olhausen, 669 N.W.2d 385, 389 (Minn. App. 2003) (“A claim that the [district] court erred
9
Stat. § 169A.20, subd. 2 (incorporating §§ 169A.51 and .52); State v. Ouellette , 740
N.W.2d 355, 360 (Minn. App. 2007) (holding that prerequisites for testing under § 169A.51
are elements of criminal test refusal), review denied (Minn. Dec. 19, 2007). Probable cause
to arrest for DWI exists if the circumstances at the time of arrest reasonably warrant a
prudent, cautious officer to believe the person was driving while under the influence of
alcohol. Reeves v. Comm’r of Pub. Safety, 751 N.W.2d 117, 120 (Minn. App. 2008).
Lystad argues that the state failed to “establish the requir ed temporal connection
between [his] intoxication and any alleged operation of a motor vehicle.” See Dietrich v.
Comm’r of Pub. Safety, 363 N.W.2d 801, 803 (Minn. App. 1985) (concluding that probable
cause did n ot exist where record established that defen dant drove and was later found
intoxicated but not that he drove while intoxicated ). He points out that the deputies “did
not observe [him] drive the motor vehicle.” But “[a]n officer is not required to see the
person actually driving in order to have pr obable cause to believe that the person was
driving a motor vehicle while under the influence.” Johnson v. Comm’r of Pub. Safety ,
394 N.W.2d 614, 615 (Minn. App. 1986). Where the officers do not witness the person
driving, probable cause may be shown by circumstantial evidence that the defendant drove
the vehicle to its resting place. State v. Starfield, 481 N.W.2d 834, 838 (Minn. 1992).
Applying the same circumstantial evidence test used above, at the time of arrest, the
officers had the following information: (1) Lystad was found in the driver’s seat with the

in failing to dismiss a complaint for lack of probable cause made after there has been a trial
and a conviction is construed as a claim that the evidence was insufficient to convict.”),
rev’d on other grounds 681 N.W.2d 21 (Minn. 2004) . Accordingly, we review Lystad’s
test-refusal conviction only for sufficiency of the evidence.
10
keys in the ignition and the headlights and tail light on; (2) there were fresh tire tracks in
the grass indicating that the vehicle had recently pulled over; (3) Lystad told the officers
that he “pulled over”; and (4) Lystad admitted that he was too intoxicated to drive. Under
these facts , there is no rational theory of the evidence under which a prudent, cautious
officer would not be warranted in believing that Lystad had driven the pickup to the side
of the road while impaired.
The evidence was sufficient to convict Lystad of test refusal because it established
that, at the time of arrest, the officers had probable cause that Lystad drove the pickup
while under the influence of alcohol.3
Affirmed.

3 Lystad does not argue that the evidence is insufficient to establish any other element of
test refusal beyond a reasonable doubt.