Jerrod Malachy Feist, Appellant,

This opinion is nonprecedential except as provided by
Minn. R. Civ. App. P. 136.01, subd. 1(c).

STATE OF MINNESOTA
IN COURT OF APPEALS
A21-0947

Jerrod Malachy Feist,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed April 4, 2022
Affirmed
Halbrooks , Judge*

Hennepin County District Court
File No. 27-CV-21-629

Ryan J. Grove, Rogosheske, Rogosheske & Atkins, PLLC, South St. Paul, Minnesota (for
appellant)

Keith Ellison, Attorney General, Sarah A. Mezera, Assistant Attorney General, St. Paul,
Minnesota (for respondent)

Considered and decided by Slieter, Presiding Judge; Worke, Judge; and Halbrooks,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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NONPRECEDENTIAL OPINION
HALBROOKS, Judge
Appellant challenges the district court’s order sustaining the revocation of his
driver’s license, arguing that the police lacked sufficient probable caus e to arrest him for
driving while impaired (DWI) and invoke the Minnesota Implied Consent Law, Minn. Stat.
§§ 169A.50- .53 (2020), and that the district court erred in finding that he was in physical
control of a motor vehicle. We affirm.
FACTS
On January 11, 2021, appellant Jerrod Malachy Feist consumed alcohol at a bar.
His friend, C.K., offered to drive Feist from the bar to C.K.’s house for the night. Feist
agreed and C.K. drove his truck and Feist rode in the passenger seat. C.K.’s girlfriend
followed behind in her vehicle . As they were nearing C.K.’s residence, Feist punched C.K.
in the face, causing his nose to bleed. C.K. immediately stopped and got out of the truck .
At that point, the truck’s doors were closed, the keys were in the ignition, and the engine
was running. Feist then slid into the driver’s seat of the truck and remained there for
“several seconds.”
C.K.’s girlfriend observed the incident from her vehicle and alerted C.K. to the fact
that Feist was in the driver’s seat of the truck. C.K. then opened the driver -side door and
pulled Feist out of the truck. Feist and C.K. physically fought on the road next to the
driver’s side of the truck. While the two were fighting, C.K.’s girlfriend got out of her
vehicle and moved the truck forward, removed the keys , and called the police. As the
group waited for the police to arrive, C.K. drove the truck back to his residence because
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his girlfriend was concerned that Feist would try to drive . Officers drove C.K. back to the
scene after finding him returning on foot.
When one of the o fficers arrived, he observed that Feist was dis heveled, beat up,
and bloody. Feist smelled of alcohol , and his speech was slurred. The officer first spoke
to C.K.’s girlfriend , who told him that Feist initiated the fight and tried to drive the truck
and that she took the keys out of the truck because she was concerned that Feist would try
to drive. The officer asked Feist why he would try to drive if he was so drunk, and Feist
responded, “ Because I’m stupid.” The officer then spoke to C.K., who told him that Feist
was in the driver’s seat of the running truck after he punched C.K. in the face. The officer
examined the scene and observed blood on the ground where the truck had been and a
disturbance in the snow. The officer arrested Feist for DWI, and respondent subsequently
revoked his driver’s license.
Upon Feist’s petition, the district court sustained the revocation of his driver’s
license. The district court determined that there was sufficient probable cause to arrest
Feist for being in physical control of a motor vehicle while intoxicated and that there was
a preponderance of the evidence that Feist was in physical control of the vehicle.
This appeal follows.
DECISION
Feist challenges the district court’s order sustaining the revocation of his driver’s
license, arguing that there was insufficient probable cause to arrest him for being in
physical control of a motor vehicle while intoxicated and that he was not in physical control
of the vehicle as a matter of law. This court reviews the district court’s findings supporting
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an order sustaining a license revocation for clear error. Jasper v. Comm’r of Pub. Safety ,
642 N.W.2d 435, 440 (Minn. 2002). Findings of fact are not clearly erroneous if there is
reasonable evidence to support them. Schulz v. Comm’r of Pub. Safety , 760 N.W.2d 331,
333 (Minn. App. 2009) , rev. denied (Minn. Apr. 21, 2009) . Once the facts are established,
the issues of probable cause and physical control are questions of law, which we review de
novo. State v. Horner , 617 N.W.2d 789, 795 (Minn. 2000) ; Snyder v. Comm’r of Pub.
Safety , 744 N.W.2d 19, 22 (Minn. App. 2008) .
Minn. Stat. § 169A .51, subdivision 1(a) provides:
Any person who drives, operates, or is in physical control of a
motor vehicle within this state or on any boundary water of this
state consents . . . to a chemical test of that person’s blood,
breath, or urine for the purpose of determining the presence of
alcohol, a controlled substance or its metabolite, or a n
intoxicating substance.

To invoke the Minnesot a Implied Consent Law, a police officer must have
“probable cause to believe the person was driving, operating, or in physical control of a
motor vehicle in violation of section 169A.20 (driving while impaired).” Id., subd. 1(b).
Of the three terms, “phy sical control” encompasses the broadest range of conduct. State v.
Fleck, 777 N.W.2d 233, 236 (Minn. 2010) . The supreme court has explained that “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 vehicle.” Id.
If a person refuses or fails the test when the police have probable cause to arrest, the
commissioner must revoke the person’s driver’s license. See Minn. Stat. § 169A .52,
subds . 3 (test refusal) , 4 (test failure). A person who has his license revoked may petition
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for a review hearing before a district court judge. Minn. Stat. § 169A.53, subd. 2(a). To
sustain the license revocation, the commissioner “must show not only t hat the arresting
police officer had probable cause to believe the driver was in physical control of [the]
vehicle, but also that the driver was in such physical control.” Roberts v. Comm’r of Pub.
Safety , 371 N.W.2d 605, 607 (Minn. App. 1985), rev. denied (Minn. Oct. 11, 1985).
I. There was sufficient probable cause to arrest Feist for DWI and to invoke the
implied-consent law.

Feist argues that the district court erred in determining that the officer had sufficient
probable cause to arrest Feist because he believe d that Feist was in physical control of the
truck. Feist contends that the incident was a roadside fight, not an attempt on his part to
drive while intoxicated.
A police officer has probable cause to believe a person is in physical control of a
vehicle when, “based on the totality of the circumstances, there is a reasonable ground of
suspicion supported by circumstances sufficiently strong in themselves to warrant a
cautious [person] in believing that the person was in physical control.” Shane v. Comm’r
of Pub. Safety , 587 N.W.2d 639, 641 (Minn. 1998) (quotation omitted). We evaluate
probable cause under the totality of the circumstances, from the arresting officer’s point of
view, giving def erence to the officer’s experience and judgment. Delong v. Comm’r of
Pub. Safety , 386 N.W.2d 296, 298 (Minn. App. 1986), rev. denied (Minn. June 13, 1986).
The record shows that at the time of the arrest, the officer learned from C.K. and his
girlfriend that Feist was in the driver’s seat of the truck for several seconds with the door s
closed while the keys were in the ignition and the engine was running. C.K.’s girlfriend
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also told the officer that C.K. drove the truck to his house because she was concerned that
Feist would drive away. The officer testified that he asked Feist why he would try to drive
if he was so drunk, and Feist responded, “Because I’m stupid.” The officer stated that he
understood Feist’s response as meaning “[t]hat it was a stupid attempt to drive.” Feist did
not testify at the hearing.
The district court found that Feist’s answer to the officer was consistent with the
officer’s inference that Feist was in physical control of th e vehicle and made factual
findings consistent with the officer’s testimony . Based on its findings of fact, the district
court determined that the officer had a “substantial basis for concluding that probable cause
existed at the time of invoking the impl ied consent law” and that sufficient probable cause
existed to arrest Feist for DWI. Groe v. Comm’r of Pub. Safety , 615 N.W.2d 837, 840
(Minn. App. 2000) (quotation omitted) , rev. denied (Minn. Sept. 13, 2000).
Because the district court’s factual findin gs are not clearly erroneous and because
the totality of the circumstances would have warranted a prudent and cautious officer to
believ e that Feist was in physical control of the truck, we conclude that there was sufficient
probable cause to arrest Feist for DWI and to invoke the implied-consent law.
II. The district court properly sustained the revocation of Feist’s driver’s license.

To sustain a license revocation, the commissioner “must show by a fa ir
preponderance of the evidence” that the intoxicated person had physical control of the
vehicle. Roberts, 371 N.W.2d at 607. “Physical control is meant to cover situations when
an intoxicated person is found in a parked vehicle under circumstances in w hich the
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vehicle, without too much difficulty, might again be started and become a source of danger
to the operator, to others, or to property.” Fleck, 777 N.W.2d at 236 (quotation omitted).
While “physical control ” is more comprehensive than “drive” or “operate,” it does
not include situations where a person has “relinquished control of the vehicle to a
designated driver.” Id. Presence in the vehicle, in and of itself, is insufficient to show
physical control ; instead, courts examine the overall circumstances to make the
determination. Id. Courts consider several factors to discern whether physical control has
been proven, including: “the person’s location in proximity to the vehicle; the location of
the keys; whether the person was a passenger in the vehicle; who owned the vehicle; and
the vehicle’s operability.” Id.
Feist does not challenge the district court’s findings . But he asserts that the facts of
this case, when properly considered in light of the enti re situation, demonstrate that he was
not in physical control of the truck. Relying on Shane , Feist argues that he did not
relinquish his passenger status because he was in the driver’s seat for mere seconds and did
not touch or attempt to touch any of the truck’s controls. See Shane, 587 N.W.2d at 642
(concluding the passenger did not renounce his passenger status because he “did not move
to the driver’s seat, touch the steering wheel, or put the [vehicle] in gear”). However, the
undisputed facts of thi s case demonstrate that Feist had the means to initiate movement of
the truck and that he was in close proximity to the truck’s operating controls because he
moved from the passenger seat to the driver’s seat while the doors were closed, the keys
were in the ignition, and the engine was running. Accordingly, the commissioner
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established by a preponderance of the evidence that Feist was in physical control of the
truck.
Feist’s reliance on Shane to challenge this conclusion is misplaced. Shane dealt
with an unusual situation where the passenger was left alone in a running vehicle because
the police officer ordered the driver out of the car to perform field sobriety tests . Id. at 640.
The passenger , while remaining in the passenger seat, reached down and pushed the
accelerator. Id. The Shane court rejected the commissioner’s argument that the passenger
renounced his passenger status by “actively manipulating the vehicle’s controls” because
he did not, nor was he about to, act in a way that would make the vehicle a source of danger.
Id. at 641.
Here, Feist’s own actions of punching C.K. in the face placed him alone in the truck
with its engine running. Cf. id. (stating the problem was that “an inebriated passenger,
ordered by the police to remain in a vehicle that has its engine running, is always going to
be in a position without too much difficulty, to become a source of danger” (quotation
omitted) ). By sliding into the driver’s seat, Feist put himself in a position to move the truck
and make it a source of danger. Under the circumstances of this case, the fact that Feist
started out as a passenger does not mean that he maintained his passenger status.
The term “physical control” is “given the broadest possible effect” in order to “deter
inebriated persons from getting into vehicles except as passengers.” State v. Starfield, 481
N.W.2d 834, 836 (Minn. 1992) (quotation omitted). This court has concluded that an
individual was in physical control of a vehicle when the vehicle had a flat tire, State v.
Woodward, 408 N.W.2d 927, 928 (Minn. App. 1987); a dead battery, Abeln v. Comm’r of
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Pub. Safety , 413 N.W.2d 546, 548 (Minn. App. 1987); and whe n the vehicle was stuck in
a snow -filled ditch, State v. Duemke, 352 N.W.2d 427, 430 (Minn. App. 1984). We also
have concluded that an intoxicated person was in physical control of a vehicle when he was
found awake and sitting behind the wheel of a parked car, but the ignition key was not
access ible. Dufrane v. Comm’r of Pub. Safety , 353 N.W.2d 705, 707- 08 (Minn. App.
1984). On this record, the district court properly determined that the commissioner
established by a preponderance of the evidence that Feist was in physical control of the
vehicle. Therefore , the revocation of his driver’s license was correctly sustained by the
district court.
Affirmed.