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This opinion will be unpublished and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
A17-0278

State of Minnesota,
Respondent,

vs.

Justin Donald Lubins,
Appellant

Filed November 13, 2017
Affirmed
Worke, Judge

Aitkin County District Court
File No. 01-CR-16-545

Lori Swanson, Attorney General, Peter Magnuson, Assistant Attorney General, St. Paul,
Minnesota; and

James P. Ratz, Aitkin County Attorney, Aitkin, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant Public Defender, St. Paul, Minnesota (for appellant)

Considered and decided by Larkin, Presiding Judge; Worke, Judge; and Johnson,
Judge.

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U N P U B L I S H E D O P I N I O N
WORKE, Judge
Appellant challenges his convictions of first-degree driving while impaired (DWI),
arguing that the district court abused its discretion by denying his requested jury instruction
explaining physical control and inoperable vehicles. We affirm.
D E C I S I O N
A jury found appellant Justin Donald Lubins guilty of two counts of first -degree
DWI and one count of driving after cancellation. Lubins argues that the district court
abused its discretion by not giving the jury an instruction regarding the circumstances that
a jury may consider in determining whether a person was in physical control of a vehicle
and whether a vehicle was inoperable.
The district court declined to give the requested jury instruction because the facts of
the case did not support it. It is within a district court’s discretion to refuse to give a
requested jury instruction. State v. Daniels, 361 N.W.2d 819, 831 (Minn. 1985). “No error
results from a refusal to instruct whe[n] the evidence does not support the proposed
instruction and no abuse of discretion is shown.” Id.
Lubins requested a jury instruction from State v. Starfield , in which the supreme
court stated:
In considering whether or not the defendant was in
physical control of the motor vehicle while under the influence
of alcohol, you may consider defendant’s location in or by the
vehicle, the location of the ignition keys, whether the defendant
had been a passenger in the vehicle before it came to rest, who
owned the vehicle, the extent to which the vehicle was
inoperable, and whet her the vehicle if inoperable might have

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been rendered operable so as to be a danger to persons or
property. You may consider these as well as any other facts or
circumstances bearing on whether or not the defendant was
then in physical control of a motor vehicle which was or
reasonably could become a danger to persons or property while
the defendant was under the influence of alcohol.

481 N.W.2d 834, 839 (Minn. 1992). But the court in Starfield also stated that inoperability
is simply a factor to be evaluated with all of the surrounding circumstances. Id. The court
also stated that “when it appears that the defendant drove the car to where it came to rest,
this is also evidence that the defend ant, when found in the parked car, was in physical
control of the car while it was parked.” Id. at 838. The district court correctly determined
that the facts of this case did not support the jury instruction.
Here, Officer Shawn Brown testified that he was in his squad car approximately half
a block behind a motor scooter that was “heading eastbound.” Officer Brown “watched
[the motor scooter] going eastbound” before he pulled up to an intersection and turned
right. The officer continued to drive aro und the block, ending up on the street where he
began, when he saw the motor scooter “now stopped with the rider standing beside it.”
Officer Brown pulled up behind the motor scooter and observed fuel pouring out of
the motor scooter’s c arburetor. Officer Brown asked the driver, Lubins, if he needed
assistance. Lubins replied that he could not get the motor scooter started. Officer Brown
recognized Lubins as the person he saw “operating the motor scooter.” Lubins stated that
he was “on his way home” from a friend’s house. Lubins lived several miles from where
he was stopped. Officer Brown noticed that the motor scooter did not have a license plate
and ran a check on Lubins’s driver’s license and was informed that it was cancelled as

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inimical to public safety. Lubins asked if he was going to get a ticket or a ride home,
admitting that he knew that he had been driving and that he did not have a driver’s license.
There is direct evidence of Lubins driving. Officer Brown observed a motor scooter
“heading” eastbound. Officer Brown watched the motor scooter “ going” eastbound.
Officer Brown later saw the motor scooter “ now stopped,” indicating that, previo usly, it
had not been stopped. Officer Brown drove around a block and saw Lubins further down
the street from where he originally observed him, indicating that Lubins drove the motor
scooter to where it was stopped. And Officer Brown recognized Lubins as the person he
saw “operating” the motor scooter.
There is additional evidence of Lubins driving aside from O fficer Brown’s
observations. Officer Brown testified that Lubins told him that he was “on his way home.”
Another officer who was c alled for backup testified that Lubins “ stated that he had just
been trying to get home.” Further, when Lubins asked the officer if he was going to get a
ticket or a ride home, he admi tted that he had been driving. This evidence supports a
finding that Lubins was driving the motor scooter before it broke down.
Lubins claims that on cross -examination, Officer Brown “ackno wledged that his
report . . . indicated that he only saw a scooter before turning; the officer did not report if
he saw the ri der or the rider’s identity.” But Officer Brown testif ied that he recognized
Lubins as the person he saw “operating the motor scooter.” Lubins also claims that during
an exchange at the jail, Officer Brown indicated that he “did not see Lubins riding the
scooter when the officer approached.” The recording of the conversation between Lubins
and Officer Brown shows the following:

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LUBINS: But you said what you said, that I wasn’t driving
when you approached me, right?
OFFICER: Okay.
LUBINS: Right?
. . . .
LUBINS: What you, I wasn’t driving when you
approached me?
OFFICER: When I, when I approached you you were not
driving.
LUBINS: All right.

This conversation is consistent with the officer’s testimony that he saw the motor scooter
stopped and the rider standing beside it. T his does not contradict the offic er’s testimony
that he saw Lubins driving the motor scooter before it was stopped. Because the evidence
does not support Lubins’s defense that he was not driving or in physical control of an
inoperable motor scooter, the district court did not abuse its discretion by refusing to give
the jury Lubins’s requested jury instruction.
Affirmed.