Eric Michael Deroos, petitioner, Appellant,

This opinion will be unpublished and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
A17-1637

Eric Michael Deroos, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed August 27, 2018
Affirmed
Reilly, Judge

Chisago County District Court
File No. 13-CV-17-330

Beau D. McGraw, McGraw Law Firm, P.A., Lake Elmo, Minnesota (for appellant)

Lori Swanson, Attorney General, Joan M. Eichhorst, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Reilly, Presiding Judge; Larkin, Judge; and Bjorkman,
Judge.
U N P U B L I S H E D O P I N I O N
REILLY, Judge
Appellant Eric Michael Deroos challenges the district court’s order sustaining the
revocation of his driving privileges under Minne sota’s implied-consent law, arguing that
the district court erred in determining his se izure was supported by reasonable articulable

2
suspicion, there was probable cause to be lieve appellant was driving while under the
influence of alcohol, and he refused to submit to chemical testing. We affirm.
FACTS
Around 3:00 a.m. on May 14, 2017, a Ch isago County deputy sheriff responded to
a report of a man lying on the shoulder of I-35 and a woman walking on the freeway. The
report described the man as bald and wearing a blue shirt a nd the woman with dark hair
and dark clothing. When the deputy arrive d at the location, he discovered a vehicle
registered to appellant on the side of the freeway, but no one in the immediate vicinity. A
different police officer located a man and woman, believed to be the two people seen along
I-35, two miles away at a gas station. The man, who was bald and wearing a blue shirt,
and the woman, who had dark hair and clothing, were in a pickup truck driven by a third
person.
The bald man, later identified as appellant , was seated in the rear passenger seat of
the truck. As the deputy spoke with the driver about a marijuana pipe lying on the center
console, and the driver acknowledged the possible presence of marijuana in the truck, the
deputy saw appellant shoving his hands behind and down in front of himself, as if he were
trying to conceal something. After appellant failed to comply with multiple commands to
show his hands, he was removed from the truck and placed in a squad car.
When appellant exited the truck, the deput y noticed that appellant’s eyes were
bloodshot and watery and he emitted an odor of alcohol. The deputy spoke with the driver
of the truck, who stated that he and his tw o passengers had been at a casino together and
that he left separately from the other two. After appellant’s car ran out of gas on I-35, they

3
called for a ride. The woman recounted the same sequence of events, adding that appellant
drank two beers at the casino, drove his car until it ran out of gas, and asked her to stay
down after they got out of the car to avoid being seen by police.
The deputy led appellant through a series of field sobriety tests, including horizontal
gaze nystagmus, walk-and-turn, and one-leg-stand, and concluded appellant showed signs
of impairment on two of them. Appellant refu sed to take a prelimin ary breath test. The
deputy placed appellant under a rrest and brought him to the ja il. Shortly after 4:00 a.m.,
the deputy twice read appellant the breath-test advisory. While the deputy was reading the
advisory, appellant interrupted him and was generally uncooperative. He removed wood
ticks from his clothing and threw them at the deputy. Appellant stated that he would take
a breath test, but never approached the DataMa ster instrument to provide a sample and
never blew into it. Subsequently, appellant’s driver’s license was revoked for test refusal.
Appellant filed a petition to reinstate his driving privileges. The district court held
an evidentiary hearing to consider (1) whether reasonable articulable suspicion supported
appellant’s seizure, (2) whether there was probable cause to believe appellant was driving
while under the influence of alcohol, and (3) whether appellant refused to submit to a breath
test. The district court heard testimony fro m appellant and the deputy and received into
evidence a transcript of the breath-test advisory and a DataMaster report. The district court
concluded that reasonable artic ulable suspicion supported ap pellant’s seizure, there was
probable cause to believe appellant was driving while under the influence of alcohol, and
appellant refused to submit to breath testing. The district court therefore denied appellant’s

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petition and sustained the commissioner of pu blic safety’s orde r revoking appellant’s
driving privileges. This appeal followed.
D E C I S I O N
I. Appellant’s continuing seizure was supported by reasonable articulable
suspicion.

The United States and Minnesota Constitutions prohibit unreasonable searches and
seizures. U.S. Const. amend. IV; Minn. Cons t. art. I, § 10. An officer may conduct a
limited investigatory stop if the officer has reasonable, articul able suspicion of criminal
activity. Terry v. Ohio , 392 U.S. 1, 21, 88 S. Ct. 1868, 1880 (1968). The reasonable,
articulable suspicion standard is met when the officer “observes unusual conduct that leads
the officer to reasonably conclude in light of his or her experience that criminal activity
may be afoot.” State v. Timberlake , 744 N.W.2d 390, 393 (Minn. 2008) (quoting In re
Welfare of G.M., 560 N.W.2d 687, 691 (Minn. 1997)).
Appellant concedes there was reasonable articulable suspicion to support removing
him from the truck to check for weapons and to prevent an a ttempt to hide evidence, but
argues the scope of the seizure was illegally expanded to undertake an impaired-driving
investigation. We are not persuaded.
The deputy noticed that appellant’s eyes were bloodshot and watery and there was
an odor of alcohol emanating from him. A man matching appellant’s description had been
seen lying next to the inte rstate freeway in a location where his car was later found
abandoned. Appellant’s passenger told the de puty appellant drank al cohol at the casino,

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drove the car until it ran out of gas, and urge d her to duck to avoid police as they walked
away from the car.
An officer’s “observation of two indicia of intoxication . . . reasonably justif[ies]
further intrusions in the form of field sobriety and preliminary breath testing.” See State v.
Klamar, 823 N.W.2d 687, 696 (Minn. App. 2 012) (concluding officer’s observation of
odor of alcohol emanating from driver and dr iver’s bloodshot and watery eyes justified
expansion of stop). On this record, the district court properly concluded that the continuing
seizure of appellant to investigate whether he was driving while im paired was supported
by reasonable articulable suspicion.
II. There was probable cause to believe appellant was operating a motor
vehicle while under the influence of alcohol.

Before requiring an individual to take a chemical test, a police officer must have
probable cause to believe that the individual has been driving, operating, or in physical
control of a vehicle while impaired. Minn. Stat. § 169A.51, subd. 1(b) (2016). In the
context of the test-refusal statute, probable cause “exists whenever there are facts and
circumstances known to the officer which w ould warrant a prudent man in believing that
the individual was driving . . . while impaired.” State v. Koppi, 798 N.W.2d 358, 362
(Minn. 2011) (quotations omitted). “[T]he probable cause standard asks whether the
totality of the facts and circumstances known would lead a reasonable officer to entertain
an honest and strong suspicion that the suspect has committed a crime.” Id. at 363
(quotation omitted). This cour t does not review probable cause de novo; “instead, we
determine if the police officer had a substantia l basis for concluding that probable cause

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existed at the time of invoking the implied consent law.” Groe v. Comm’r of Pub. Safety,
615 N.W.2d 837, 840 (Minn. A pp. 2000) (quotation omitted), review denied (Minn.
Sept. 13, 2000); see also Delong v. Comm’r of Pub. Safety, 386 N.W.2d 296, 298 (Minn.
App. 1986) (stating that we evaluate the existence of probable cause from the point of view
of the officer, giving deference to th e officer’s experience and judgment), review denied
(Minn. June 13, 1986).
Appellant argues that even if there was pr obable cause to believe he was impaired
and that he had been driving, there was not probable cause to believe that he was impaired
while he was driving. A “temporal connecti on” between the driving conduct and the
officer’s observation of intoxication must exis t in order to establish probable cause to
believe a person was driving a motor vehi cle under the influe nce of alcohol. Dietrich v.
Comm’r of Pub. Safety , 363 N.W.2d 801, 803 (Minn. App. 1985). “Where there is no
evidence whatsoever connecting the time of driving with the time of an officer’s
observations, the officer’s proof of probable cause is inadequate.” Hedstrom v. Comm’r of
Pub. Safety, 410 N.W.2d 47, 49 (Minn. App. 1987). But there is no requirement that police
“establish the exact time the driver was driving.” Weldon v. Comm’r of Pub. Safety , 400
N.W.2d 816, 818 (Minn. App. 1987) (affirming revocation where driver had been at a bar
earlier, drove home, was in an accident at an undetermined time, and showed signs of
intoxication later). On this issue, the supreme court’s Eggersgluss opinion is instructive.
Where a passenger stated that a driver consumed alcohol before missing a turn and flipping
his car in the middle of the night, the driver was not forthcoming about drinking, and the
officer observed indicia of intoxication, the supreme court concluded that this court placed

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“too much importance on the co mmissioner’s inability to prove a negative, specifically,
that defendant did not drink after the accident.” Eggersgluss v. Comm’r of Pub. Safety ,
393 N.W.2d 183, 185 (Minn. 1986) (reversi ng this court’s decision and sustaining
revocation).
Here, appellant’s passenger told the deputy appellant drank beer at the casino then
drove until his car ran out of ga s. When they got out of the car on the freeway, appellant
wanted her to avoid being se en by the police. And the deputy observed indicia of
intoxication. The deputy had no reason to think that appellant had become drunk after
abandoning his car on the side of I-35—that account was offered for the first time in district
court. From the deputy’s perspective, appellant drank beer at the casino, drove until he ran
out of gas within the last hour, was uncooperative, and appeared to be intoxicated.
Based on the totality of th e circumstances, the officer had a substantial basis for
concluding that there was probable cause to believe appellant had driven a vehicle while
impaired.
III. The evidence is sufficient to find that appellant refused to submit to a
chemical test.

To determine whether a driver’s failure to provide a sample constitutes test refusal,
courts look to the driver’s words and actions. Stevens v. Comm’r of Pub. Safety , 850
N.W.2d 717, 722 (Minn. App. 2014). “The question whether a driver has refused to submit
to chemical testing is a question of fact, to which this court applies a clear-error standard
of review.” Id. Appellant argues that the district c ourt erred in finding a refusal because
(1) he verbally consented to the test requested by the deputy; and (2) the purported refusal

8
occurred after the deputy turned off the voi ce recorder and was not captured by the
recorder. Appellant offers no legal authority to support either argument.
The transcript of the breath-test advisory shows that appellant spoke the words “I’ll
take any test you want me to take.” But there is no evidence that appellant actually supplied
breath samples. “If a driver expresses verbal agreement to submit to chemical testing but
does not provide an adequate sample, his or her conduct may be deemed a refusal to submit
to chemical testing.” Id. at 721. The deputy testified that although appellant said he would
submit to a breath test, he did not approach th e instrument or blow into it. The deputy’s
testimony is direct evidence of refusal. See State v. Brazil, 906 N.W.2d 274, 278 (Minn.
App. 2017) (“Testimony provided by a witness, concerning what the witness saw or heard,
is considered direct evidence.”).
The rest of the transcript and the DataMaster report, which were also admitted into
evidence, support the district court’s finding. The transcript shows appellant interrupting,
insulting, and badgering the deputy; using vulgar language; failing to follow instructions;
and repeatedly stating that he did not understand the advisory. It does not suggest that
appellant intended to submit to a test. And the DataMaster report is blank and bears the
notation, “subject refused to test.”

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The evidence is sufficient to support the district court’s finding that appellant
refused to submit to chemical testing.1 The district court did not clearly err in making this
finding.
Affirmed.

1 Appellant does not explain how an audio recording of an individual not blowing into a
testing instrument is necessary to our analysis. He does not claim that he provided breath
samples.