Kenneth Wayne Carlson, petitioner, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0275

Kenneth Wayne Carlson, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed March 18, 2019
Affirmed
Smith, Tracy M., Judge

Chisago County District Court
File No. 13-CV-17-293

Jeffrey S. Sheridan, Sheridan & Dulas, P.A., Eagan, Minnesota (for appellant)

Keith Ellison, Attorney General, William Young, Assistant Attor ney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Halbr ooks, Presiding Judge; Larkin, Judge; and Smith,
Tracy M., Judge.
U N P U B L I S H E D O P I N I O N
SMITH, TRACY M., Judge
Appellant Kenneth Wayne Carlson ch allenges the district court’s order sustaining
the revocation of his driving privileges, arguing that the district court erred by (1) finding
that he was in physical control of the vehicle and (2) denying his motion for a new hearing
based on newly discovered evidence. We affirm.

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FACTS
Around 6:30 a.m. on April 11, 2017, the Chisago County Sheriff’s Office received
a 911 call from a woman claiming that her husband had “rammed” her vehicle with his
truck in the garage of their hom e. Sergeant Jason Foster respo nded to the scene a few
minutes later. Sergeant Foster immediately saw that the garage door had been “bashed in,”
a Ford truck was parked in front of the garage door, and Carlson was sitting in the driver’s
seat of the truck. The truck was not running.
Carlson told Sergeant Foster that he had “recently” caused the damage to the garage
door as well as damage to his wife’s vehicle. Carlson told Sergeant Foster that he did not
know the garage door was coming down when he was driving his tr uck out of the garage.
Sergeant Foster found keys in Carlson’s pocket; he did not try the keys in the ignition to
see if they were the keys to the truck. Sergeant Foster checked inside the cab of the truck
and found it warm; he did not check the hood of the truck for w armth. Sergeant Foster
examined the garage door and determined that the truck had been driven right through the
garage door while it was shut, pushing Ms. Carlson’s vehicle into the back wall. Sergeant
Foster eventually placed Carlson under arrest for DWI.
After Carlson was arrested, respondent Minnesota Commissioner o f Public Safety
revoked Carlson’s driver’s license. Carlson petitioned for judicial review, arguing that he
was not in physical control of his vehicle at the time of his arrest. At the hearing, Carlson
testified that, on the night before his arrest, he pulled his t ruck into the garage but could
not get it all the way in. He explained that the garage door was already broken and it was
left partially open. Carlson started to back up, but the garag e door started coming down.

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His truck damaged the door, and he used his truck to bump his w ife’s vehicle forward so
the garage door would not collapse on it. Carlson further test ified that he began drinking
that night because he was “bummed out about the damage” but tha t he did not drive. He
continued drinking the next morning when he went out to sit in his truck and look at the
damage to the garage door.
The district court upheld the revocation of Carlson’s driver’s license. The district
court found that Carlson’s version of events was not credible. It found that Ms. Carlson’s
statements in her call to the police were reliable and, relevan t to this case, found—based
on testimony from Sergeant Foster—that Ms. Carlson said that Ca rlson had “just” driven
his truck through the garage and into her car. The district court concluded that “the recent
damage, the mud tracks, Ms. Carlson’s statements to the [p]olic e, and Carlson’s own
statements at the time of the incident support that he had driven the truck and remained in
physical control of the vehicle when law enforcement arrived.”
Carlson appealed the decision an d later stayed the appeal so th at he could bring a
motion to reopen the matter in district court under Minn. R. Civ. P. 60.02 based on newly
discovered evidence. The purported newly discovered evidence w as the transcript and
recording of the 911 call that Ms. Carlson made to police. Bec ause the transcript showed
that Ms. Carlson did not say that Carlson had “just” driven his truck through the garage
door, Carlson argued that it directly contradicted the deputy’s testimony.
The district court denied Carlson’s motion, and this appeal was reinstated.

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D E C I S I O N
I. The district court did not err in finding that Carlson was in physical control of
his vehicle at the time of his arrest.

Carlson argues that the distri ct court erred by finding that Ca rlson was in physical
control of his vehicle because no one saw him driving his truck and the responding officers
did not determine that the keys to the truck were in Carlson’s possession at the time. We
disagree.
To sustain the revocation of a p erson’s driving privileges, the commissioner must
prove by a preponderance of the e vidence that the person “was d riving, operating, or in
physical control of a motor vehicle . . . in violation of secti on 169A.20.” Minn. Stat.
§ 169A.53, subd. 3(b)(1) (2018); Llona v. Comm’r of Pub. Safety , 389 N.W.2d 210, 211
(Minn. App. 1986) (holding that burden of proof in implied-consent case is preponderance
of the evidence); Roberts v. Comm’r of Pub. Safety , 371 N.W.2d 605, 607 (Minn. App.
1985) (holding that actual physical control must be proved), review denied (Minn. Oct. 11,
1985).
“Whether a person is in physical control of a motor vehicle for purposes of the
implied-consent law is a mixed question of law and fact.” Snyder v. Comm’r of Pub. Safety,
744 N.W.2d 19, 21-22 (Minn. App. 2008). We review the district court’s findings of fact
for clear error, “giving due wei ght to inferences drawn from th ose facts by the district
court.” Mell v. Comm’r of Pub. Safety, 757 N.W.2d 702, 708 (Minn. App. 2008) (quotation
omitted). “Findings of fact are clearly erroneous when they are manifestly contrary to the
weight of the evidence or not reasonably supported by the evidence as a whole.” Schulz v.

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Comm’r of Pub. Safety , 760 N.W.2d 331, 333 (Minn. App. 2009) (quotation omitted),
review denied (Minn. Apr. 21, 2009). We will “defer to the district court’s credibility
determinations and ability t o weigh the evidence.” Constans v. Comm’r of Pub. Safety ,
835 N.W.2d 518, 523 (Minn. App. 2013). “Once the facts are est ablished, the issue of
physical control is a question of law, which this court reviews de novo.” Snyder, 744
N.W.2d at 22.
Minnesota statutes do not define physical control, but Minnesot a courts have
explained that “a person is in ph ysical 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
vehicle.” State v. Fleck, 777 N.W.2d 233, 236 (Minn. 2010). “Mere presence in or about
a vehicle is insufficient to show physical control . . . .” Id. Rather, “it is the overall situation
that is determinative.” Id. Courts consider “the person’s location in proximity to the
vehicle; the location of the keys; whether the person was a pas senger in the vehicle; who
owned the vehicle; and the vehicle’s operability.” Id. The physical control aspect of the
statute is intended “as a preventive measure to deter the drunk driver from again driving”
and “should be given the broadest possible effect.” State v. Starfield , 481 N.W.2d 834,
836-37 (Minn. 1992) (quotation omitted).
I n Dufrane v. Comm’r of Pub. Safety , the appellant was found awake, intoxicated,
and sitting behind the wheel of a parked car. 353 N.W.2d 705, 706 (Minn. App. 1984).
The ignition key was not accessible; the appellant’s wife had taken it away from him. Id.
at 707. This court held that “[p]hysical control does not sole ly depend upon the location
of the ignition key. The location of the key is simply a facto r, with others, to consider.”

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Id. And this court ultimately concluded that “appellant’s upright presence in the front seat
and behind the wheel of a car, plus the testimony of the police officer that appellant had
told her he had been driving the car earlier, constitutes reasonable and probable grounds to
believe appellant was in physical control of a motor vehicle.” Id. at 708.
A similar situation was present here. Upon arriving, Sergeant Foster found a key
ring with several keys on it in the truck, but he did not determine whether any of those keys
operated the truck. Carlson later testified that the keys to t he truck were inside the house
and were not on his person at the time of his arrest. The dist rict court found Carlson’s
version of events not credible. Additional factors supported the determination of physical
control. Sergeant Foster found fresh tire tracks in the mud along the driveway and Carlson
sitting in the driver’s seat, awake, with the cab of the truck a warmer temperature inside
than outside. Carlson owned the truck, and the truck was opera ble. Taking all of these
circumstances together, and giving due weight to the inferences drawn from these facts by
the district court, the district court did not err in concluding that the commissioner proved
that Carlson was in physical control of his vehicle at the time of his arrest.
II. The district court did not abuse its discretion when it den ied Carlson’s motion
to reopen the case based on the newly discovered 911 recording.

Carlson argues that the district court abused its discretion in denying his motion to
vacate its previous order and reopen the case because the state ments in the 911 recording
would have changed the result of the implied-consent hearing. We are not persuaded.

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This court reviews a district court’s order denying a motion t o vacate a judgment
under Minn. R. Civ. P. 60.02 for an abuse of discretion. Carter v. Anderson, 554 N.W.2d
110, 115 (Minn. App. 1996), review denied (Minn. Dec. 23, 1996).
“The burden of proof in a proceeding under Rule 60.02 is on the party seeking
relief.” City of Barnum v. Sabri, 657 N.W.2d 201, 205 (Minn. App. 2003). To warrant a
new hearing or trial on the basis of newly discovered evidence under rule 60.02(b), the
moving party must show that the new evidence (1) was not discov ered until after trial;
(2) could not have been discovered before trial by exercising due diligence; (3) is relevant
and admissible and; (4) is not merely collateral, impeaching, o r cumulative but rather
would have “a probable effect upon the result of a new trial.” Frazier v. Burlington N.
Santa Fe Corp., 811 N.W.2d 618, 631 (Minn. 2012).
Here, the district court determined that the first three eleme nts were satisfied by the
newly discovered 911 recording. However, it determined that th e fourth element was not
satisfied because the recording was being offered merely as imp eachment evidence and,
even if it was used for something other than impeachment purpos es, it would not have an
effect on the outcome of a new hearing.
The 911 recording shows that Carlson’s wife told the dispatche r, “My husband
drank so much that he drove into my garage and pushed my car all the way back.” Relevant
here, Ms. Carlson also said, “I don’t know when he did it.” Carlson argues that this latter
statement directly contradicts Sergeant Foster’s testimony that M s . C a r l s o n t o l d t h e
dispatcher that Carlson “just” drove his truck through the garage. He argues that the newly

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discovered statement is more than impeaching because it “contradicts the primary evidence
on which the original order was based” and “corroborates Carlson’s version of events.”
Carlson’s own argument supports the district court’s determina tion that the evidence
was offered to impeach. He contends that “[i]t would have directly contradicted [Sergeant]
Foster’s testimony about when the incident occurred.” Using th e 911 recording to
contradict or impeach Sergeant Foster’s testimony, while bolste ring Carlson’s, is not
sufficient under rule 60.02(b).
Furthermore, even if the recording were to be used substantivel y, rather than as
impeachment evidence, it also mus t be evidence that would have a probable effect upon
the result of a new trial. See Frazier, 811 N.W.2d at 631. Carlson argues that “[t]he district
court’s original order finding physical control and sustaining the license revocation relied
heavily on Sergeant Foster’s testimony that Carlson’s wife repo rted to the 911 dispatcher
that Carlson had ‘just’ driven his truck through the garage.” But the district court’s
conclusion regarding physical c ontrol does not support this cha racterization. The
conclusion reads:
Carlson was intoxicated and in a position to exercise dominion
or control over the truck that morning when Sergeant Foster
arrived. Carlson was in close proximity to [the operating]
controls of the vehicle. No one else was in the truck. Carlson
was awake. The keys for the truck were either in Carlson’s
possession or a short walk away in the house. There is no
evidence that the truck was inoperable. The recent damage, the
mud tracks, Ms. Carlson’s stat ements to the [p]olice, and
Carlson’s own statements at the time of the incident support
that he had driven the truck and remained in physical control
of the vehicle when law enforcement arrived.

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As the district court later wrot e, in rejecting Carlson’s motio n to reopen, the evidence of
the 911 call would not “establish a specific time when Carlson drove his vehicle [into the
garage]”—it would only suggest that Ms. Carlson did not know specifically when he did.
The remaining factors would continue to establish that Carlson was in physical control of
the vehicle—his presence in the truck and proximity to the controls, the possession of a set
of keys, and the fact that the truck appeared to have been rece ntly driven. The 911
recording thus would not have a probable effect on the results of a new trial. The district
court therefore did not abuse its discretion when denying Carls on’s motion to vacate its
previous order and reopen the case for a new implied-consent hearing.
Affirmed.