Jack Richard Moore, petitioner, 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This opinion is nonprecedential except as provided by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
A23-0559

Jack Richard Moore, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent.

Filed February 5, 2024
Reversed and remanded
Frisch, Judge

Grant County District Court
File No. 26-CV-21-301

Christopher J. Perske, Grannis & Hauge, P.A., Eagan, Minnesota (for appellant)

Keith Ellison, Attorney General, Linnea VanPilsum-Bloom, Assistant Attorney General,
St. Paul, Minnesota (for respondent)

Considered and decided by Frisch, Presiding Judge; Johnson, Judge; and Larkin,
Judge.
NONPRECEDENTIAL OPINION
FRISCH, Judge
Appellant seeks reversal of the district court’s order sustaining the revocation of his
driver’s license, arguing that (1) appellant was not in physical control of the vehicle as a
matter of law and (2) law enforcement lacked probable cause to believe appellant was in
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physical control of the vehicle. Because the district court did not resolve whether appellant
was in physical control of the vehicle, we reverse and remand.
FACTS
On October 10, 2021, appellant Jack Richard Moore and two friends went to a bar.
The bartender did not allow Moore to leave with his keys due to his intoxicated state.
Instead, Moore left with friends, one of whom drove the vehicle.
A law-enforcement officer later responded to a report of a vehicle stopped on the
side of the road. The officer drove past the vehicle, which was parked but running. The
officer did not see anyone inside the vehicle. The officer observed two people standing on
an overpass approximately a quarter mile away from the vehicle.
The officer approached the people on the overpass. The people on the overpass told
the officer that they had been in the parked vehicle but were now waiting for another ride.
The officer learned that a third person, Moore, was still inside the vehicle. The officer
returned to the vehicle and saw Moore sleeping across the center console, with the bottom
half of his body in the front-passenger seat and the top half of his body in the back seat.
The officer made multiple attempts to wake Moore. First, the officer knocked on
the window and received no response. Next, the officer opened the driver’s side door and
called his name to no response. Finally, the officer opened the back door near Moore’s
head and again called his name, at which time Moore responded.
Moore exited the vehicle, and the officer conducted an investigation for driving
while intoxicated (DWI ). Based on that investigation, the officer arrested Moore for
suspicion of DWI. The state thereafter revoked Moore’s driver’s license.
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Moore contested the revocation, arguing that he was not in physical control of the
vehicle. At the implied-consent hearing, the district court heard testimony from the
arresting officer and Moore.1
The officer testified that Moore stated that he parked the vehicle. The officer also
testified that Moore stated that his friend had been driving. Moore testified he did not drive
or park the vehicle and that he did not recall telling the officer that he parked the vehicle.
The district court sustained the revocation, concluding that the officer had probable
cause to believe Moore was in physical control of the vehicle.
Moore appeals.
DECISION
Moore challenges the district court’s order sustaining the revocation of his driver’s
license, arguing that (1) he was not in physical control of the vehicle as a matter of law and
(2) the officer lacked probable cause to arrest him on suspicion of DWI.
For the district court to sustain a license revocation, the commissioner “must show
not only that 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). The two issues may be raised as separate challenges to a revocation
decision. Snyder v. Comm’r of Pub. Safety, 496 N.W.2d 858, 860 (Minn. App. 1993)
(Snyder 1993). Once the facts are established, we review de novo whether an individual

1 The state subpoenaed Moore’s two friends, neither of whom appeared at the hearing.
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was in physical control of the vehicle. Snyder v. Comm’r of Pub. Safety, 744 N.W.2d 19,
22 (Minn. App. 2008).
To sustain a license revocation, the commissioner must “show by a fair
preponderance of the evidence that the person was in physical c ontrol of the vehicle.”
Roberts, 371 N.W.2d at 607. We give the term “physical control . . . the broadest possible
effect” to “enable the drunken driver to be apprehended before he strikes” and to “deter
individuals who have been drinking from getting into their vehicles, except as passengers.”
Shane v. Comm’r of Pub. Safety, 587 N.W.2d 639, 641 (Minn. 1998) (quotations omitted).
Thus, “physical control” encompasses more than “drive” or “operate.” State v. Starfield,
481 N.W.2d 834, 836 (Minn. 1992). Physical control covers situations “where an
inebriated person is found in a parked vehicle under circumstances where the car, without
too much difficulty, might again be started and become a source of danger to the operator,
to others, or to property.” Id. at 837. But, for an officer to have probable cause “to believe
a known passenger is in physical control of a motor vehicle, the officer must have reason
to believe that the passenger has or is about to take some action that makes the motor
vehicle a source of danger to themselves, to others, or to property.” Shane, 587 N.W.2d at
641 (emphasis added).
Moore expressly argued to the district court that he was not in physical control of
the vehicle. The district court did not resolve whether Moore was in physical control of
the vehicle, concluding only that the officer had probable cause to believe that Moore was
in physical control of the vehicle. Roberts, 371 N.W.2d at 607. And the district court did
not make any findings as to whether Moore drove, operated, or parked the vehicle. See
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Starfield, 481 N.W.2d at 836-38 (“[W]hen it appears that the defendant drove the car to
where it came to rest, this is also evidence that the defendant, when found in the parked
car, was in physical control of the car while it was parked.”). The district court did not
make a finding that Moore was a known passenger of the vehicle. Shane, 587 N.W.2d at
641.
We cannot resolve the issue presented on appeal of whether Moore was in physical
control of the vehicle in the absence of findings and conclusions by the district court as to
whether Moore was in physical control of the vehicle. On remand, the district court should
resolve whether Moore drove, parked, or operated the vehicle based on credited evidence.
In so doing, the district court may in its discretion reopen the record to resolve whether
Moore was in physical control of the vehicle.
The district court’s separate determination that the officer had probable cause t o
believe Moore was in physical control of the vehicle is not sufficient to sustain the
revocation. Roberts, 371 N.W.2d at 607; see also Snyder 1993, 496 N.W.2d at 860
(reiterating that to sustain a revocation the commissioner must prove both probable cause
and physical control of the vehicle). The question raised at the district court was not
resolved by the legal conclusion reached by the district court. Therefore, we reverse and
remand.
Reversed and remanded.