A24-0006

This opinion is nonprecedential except as provided by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
A23-1649
A24-0006

Gordon William Griebenow, petitioner,
Appellant,

vs.

Commissioner of Public Safety,
Respondent (A23-1649),

and

State of Minnesota,
Respondent (A24-0006),

vs.

Gordon William Griebenow,
Appellant.

Filed August 19, 2024
Affirmed in part, reversed in part, and remanded
Ede, Judge

Olmsted County District Court
File Nos. 55-CV-22-7856, 55-CR-22-8115

James McGeeney, Doda McGeeney, Rochester, Minnesota (for appellant)

Keith Ellison, Attorney General, Ryan Pesch, Assistant Attorney General, St. Paul,
Minnesota (for respondent Commissioner of Public Safety)

Mark A. Ostrem, Olmsted County Attorney, James E. Haase, Senior Assistant County
Attorney, Rochester, Minnesota (for respondent State of Minnesota)

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Considered and decided by Ede, Presiding Judge; Frisch, Judge; and Wheelock ,
Judge.
NONPRECEDENTIAL OPINION
EDE, Judge
In these consolidated appeals from the district court’s denial of his petition to
rescind the revocation of his driver’s license and from its judgment of conviction for third-
degree driving while impaired (DWI), appellant argues that the district court erred in both
matters by concluding that police had reasonable, articulable suspicion to stop appellant’s
vehicle and to request a preliminary breath test (PBT). Because we conclude that police
had reasonable, articulable suspicion to stop appellant’s vehicle and to believe appellant
was driving under the influence, we affirm in part. But because we also conclude that the
district court erroneously convicted appellant of both DWI and driving with an alcohol
concentration at or above the established limit based on charges arising from a single
behavioral incident, we reverse in part and remand.
FACTS
Respondent Commissioner of Public Safety (the commissioner) revoked appellant
Gordon William Griebenow’s license after a deputy stopped his tractor on November 11,
2022. And respondent State of Minnesota charged Griebenow with two counts of third-
degree DWI based on the same incident. Griebenow challenged the license revocation and
sought suppression of evidence in the criminal matter, arguing that the deputy lacked
reasonable, articulable suspicion to stop the tractor and to expand the stop by requesting a
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PBT. The facts below are based on the record of a combined implied -consent and
contested-omnibus hearing.
On November 11, 2022, Griebenow’s brother (brother) called 911, reporting that he
thought that Griebenow was operating a tractor while intoxicated at their farm. In the 911
call, brother reported that a farm employee (employee) smelled alcohol on Griebenow’s
breath and that Griebenow insisted on driving a tractor through the field. Two deputies
were dispatched to the farm.
At the scene, employee told one of the deputies that when he spoke to Griebenow,
he could “smell [Griebenow’s] breath from . . . four feet away.” Brother told the same
deputy that Griebenow’s alcohol use was an ongoing problem and explained that
Griebenow had “done this so many times . . . [that they have had to] redo the field.” Brother
expressed his concern that Griebenow would harm himself or drive onto the road, and
brother stated that he did not believe that Griebenow should “be driving the tractor or his
pick-up.” Brother also informed the deputy where Griebenow was in the field, and the
deputy observed that the tractor did not have any lights activated, even though it was dark
outside.
At this point, brother opened what he said was Griebenow’s truck because brother
was curious as to how much alcohol was inside. Brother discovered “a three-quarter empty
bottle of Jameson Irish Whiskey” and other bottles of alcohol inside the truck.
The deputy walked toward the edge of the field and began turning his flashlight on
and off while pointing it at Griebenow. After a few minutes, the tractor began to move in
the deputy’s direction. Griebenow reached the edge of the field, stopped the tractor, and
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opened the tractor door. The deputy walked up to the tractor and asked Griebenow how
much alcohol he had consumed. Griebenow responded that he had “had a couple.” The
deputy explained that it was against the law to drive a tractor while drunk. Griebenow
replied that he was unaware of that and that he did not “think he was that drunk.”
Griebenow exited the tractor. Once Griebenow was standing next to him, the deputy
noticed that Griebenow was “kind of unsteady on his feet.” The deputy also observed that
Griebenow’s eyes were glassy, but the deputy thought that the glassiness could be
attributed to the wind. The deputy did not smell alcohol on Griebenow’s breath. But as
Griebenow continued to speak, the deputy noticed that Griebenow was slurring his words.
Griebenow again told the deputy that he had consumed a couple of beers.
The deputy administered a horizontal gaze nystagmus (HGN) test to Griebenow.
Although the deputy instructed Griebenow to follow the deputy’s finger with only his eyes,
Griebenow instead moved his head along with the deputy’s finger. The deputy did not
know if Griebenow “was misunderstanding [his] instructions” or if Griebenow was unable
to properly complete the test. The deputy administered no other field sobriety tests because
he thought that it would be unfair to conduct those tests on a gravel road.
The deputy asked Griebenow if he would submit to the PBT, and Griebenow agreed.
While the deputy was preparing the PBT, Griebenow said that he had consumed two or
three beers about an hour before. The PBT result was an alcohol concentration of 0.185.
At this point, the deputy had formed an opinion that Griebenow’s alcohol concentration
was over the legal limit and that Griebenow was under the influence of alcohol. The deputy
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arrested Griebenow. After his arrest, Griebenow submitted to an evidentiary chemical test
of his breath that yielded an alcohol concentration of 0.16.
The commissioner later revoked Griebenow’s driver’s license. Griebenow
petitioned for judicial review of the revocation, and the district court stayed the revocation
pending a hearing. The state also charged Griebenow with one count of third-degree
DWI—operating a motor vehicle under the influence of alcohol, in violation of Minnesota
Statutes section 169A.20, subdivision 1(1) (2022), and one count of third-degree DWI—
operating a motor vehicle with an alcohol concentration of 0.08 within two hours, in
violation of Minnesota Statutes section 169A.20, subdivision 1(5) (2022).
Several months after the state filed the criminal complaint, Griebenow moved the
district court to suppress certain evidence. The matter proceeded to a combined implied-
consent and contested -omnibus hearing, at which Griebenow limited the issues to:
(1) whether the deputy lawfully stopped Griebenow; (2) whether the deputy had reasonable
suspicion of DWI to expand the stop; and (3) whether the deputy lawfully obtained a PBT
sample from Griebenow. At the hearing, the district court heard testimony from the deputy
and received into evidence two video recordings from law enforcement body -worn
cameras.
The district court filed an order in which it denied Griebenow’s implied-consent
petition, sustained his license revocation, and denied his motion to suppress. The district
court concluded that the deputy had reasonable, articulable suspicion to stop the tractor, to
expand the seizure of Griebenow to conduct a DWI investigation, and to request that
Griebenow submit to a PBT.
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Following the district court’s order, Griebenow appealed the revocation of his
driver’s license. In his criminal matter, Griebenow waived his right to a jury and agreed to
a stipulated-evidence bench trial under Minnesota Rule of Criminal Procedure 26.01,
subdivision 3.
After reviewing the stipulated evidence, the district court found that Griebenow was
guilty and convicted him of both third-degree DWI counts. The district court sentenced
Griebenow to 364 days on count two, third-degree DWI—operating a motor vehicle with
an alcohol concentration of 0.08 within two hours. Although the district court entered a
conviction on count one, third-degree DWI— operating a motor vehicle under the influence
of alcohol, the district court did not sentence Griebenow on that count.
Griebenow appealed his conviction and moved to consolidate his implied-consent
and criminal matters. This court ordered consolidation of Griebenow’s two appeals.
DECISION
Griebenow challenges the revocation of his driver’s license and his third-degree
DWI conviction, asserting that the district court erred by concluding (1) that police had
reasonable, articulable suspicion to stop Griebenow’s vehicle and (2) that law enforcement
had reasonable, articulable suspicion to believe Griebenow was driving under the influence
to justify their request for a PBT. As explained below, we are not persuaded by
Griebenow’s arguments.
We review “a district court’s determination of reasonable suspicion de novo, but
accept[] the district court’s factual findings unless they are clearly erroneous.” Kruse v.
Comm’r of Pub. Safety, 906 N.W.2d 554, 557 (Minn. App. 2018). “A factual finding is
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clearly erroneous if it does not have evidentiary support in the record or if it was induced
by an erroneous view of the law.” State v. Ezeka, 946 N.W.2d 393, 403 (Minn. 2020)
(quotation omitted). “A finding of fact is not clearly erroneous if it is reasonably supported
by the evidence as a whole.” State v. Barshaw, 879 N.W.2d 356, 366 (Minn. 2016).
“The United States and Minnesota Constitutions prohibit unreasonable searches and
seizures.” State v. Taylor, 965 N.W.2d 747, 752 (Minn. 2021). “Warrantless searches and
seizures are generally unreasonable.” Id. “A law enforcement officer may, however,
consistent with the Fourth Amendment, conduct a brief, investigatory stop of a motor
vehicle when the officer has a reasonable, articulable suspicion that criminal activity is
afoot.” Id. (quotations omitted). The reasonable, articulable suspicion standard is not high,
but it must be based on more than a hunch. State v. Timberlake, 744 N.W.2d 390, 393
(Minn. 2008). “Reasonable suspicion must be ‘particularized’ and based on ‘specific and
articulable facts which, taken together with rational inferences from those facts, reasonably
warrant that intrusion.’” Taylor, 965 N.W.2d at 752 (quoting Terry v. Ohio, 392 U.S. 1, 21
(1968)).
I. The district court did not err by concluding that police had reasonable,
articulable suspicion to stop Griebenow’s vehicle.

Griebenow maintains that brother’s tip to dispatch was lacking both as to
“identifying information and facts to support a conclusion that [Griebenow] was driving
the tractor while under the influence[.]” Griebenow contends that, other than someone
notifying brother about the smell of alcohol on Griebenow’s breath, the tip included no
details about how brother concluded that Griebenow might have been under the influence.
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Griebenow notes that no person reported seeing him drinking, that there were no
complaints or observations of his driving conduct, and that there were no descriptions of
him that amounted to indicia of intoxication. Griebenow’s argument is limited to one aspect
of the totality of the circumstances: brother’s tip to the 911 dispatcher. We conclude,
however, that several facts support the deputy’s reasonable, articulable suspicion that
Griebenow was engaged in criminal activity.
The factual basis required to support the stop of a vehicle “may be supplied by
information that [an] officer acquires from another person, including an informant.” Jobe
v. Comm’r of Pub. Safety, 609 N.W.2d 919, 921 (Minn. App. 2000). “In order to justify a
traffic stop, an informant’s tip must possess sufficient indicia of reliability.” Id. (quotation
omitted). “The Minnesota cases dealing with traffic stops based on informant tips have
focused mainly on two factors: (1) identifying information given by the informant, and
(2) the facts that support the informant’s assertion that a driver is under the influence.” Id.
Neither factor is dispositive. Instead, the appellate courts evaluate the basis for a stop “in
light of the totality of the circumstances.” Id. Appellate courts “begin with the presumption
that citizen informants are reliable.” Id. “But whether the police were justified in stopping
[an individual] depends not only on the reliability of the tip but also on the nature of the
information provided.” Magnuson v. Comm’r of Pub. Safety, 703 N.W.2d 557, 560 (Minn.
App. 2005) (quotation omitted).
Here, brother told the deputy that Griebenow’s alcohol use was an ongoing problem.
Brother explained that Griebenow had “done this so many times” that they have had to
“redo the field.” The deputy observed Griebenow driving the tractor during the evening in
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the dark without any lights activated. Brother also expressed concern that Griebenow could
hurt himself or hurt someone else by driving the tractor onto the road. Brother told the
deputy that he did not believe that Griebenow should be “driving the tractor or his pick-
up.” And brother retrieved multiple bottles of alcohol from Griebenow’s truck, including
an almost empty bottle of whiskey. The totality of these facts establishes a particularized
basis for reasonable, articulable suspicion that Griebenow was engaged in criminal activity.
Griebenow nevertheless asserts that the district court’s factual findings are clearly
erroneous, challenging the court’s determination that “employee smelled a strong odor of
alcohol on [Griebenow’s] breath.”1
We conclude that the district court’s finding that employee smelled alcohol is
supported by the record. The deputy testified that, during the 911 call, brother reported that
employee had smelled alcohol on Griebenow’s breath. In addition, the deputy’s body-worn
camera footage reveals that employee stated that he could smell Griebenow’s breath from
four feet away.
The totality of the circumstances supports reasonable, articulable suspicion that
Griebenow was driving while impaired. The district court therefore did not err by
determining that the deputy lawfully stopped the tractor Griebenow was driving.

1 Griebenow further argues that the district court neglected to analyze whether the stop of
his vehicle was supported by reasonable, articulable suspicion. But the district court
determined that the deputy had reasonable, articulable suspicion to conduct a DWI
investigation. And the district court’s factual findings support our conclusion that the
deputy had reasonable, articulable suspicion to stop the vehicle.
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II. The district court did not err by concluding that police had reasonable,
articulable suspicion to support the expansion of the stop and to request a PBT.

Griebenow next argues that the deputy lacked reasonable, articulable suspicion to
expand the traffic stop and request a PBT. More specifically, Griebenow contends that the
deputy’s PBT request was not justified because the deputy did not have reason to believe
that Griebenow had been driving while impaired. We disagree.
When a law enforcement officer “has reason to believe from the manner in which a
person is driving, operating, controlling, or acting upon departure from a motor vehicle . . .
that the driver may be violating or has violated section 169A.20 (driving while impaired),
. . . the officer may require the driver to provide a sample of the driver’s breath for a
preliminary screening test.” Minn. Stat. § 169A.41, subd. 1 (2022). “An officer must have
a reasonable, articulable suspicion that a driver is under the influence of alcohol before
requesting either a field sobriety test or a PBT.” Otto v. Comm’r of Pub. Safety, 924 N.W.2d
658, 661 (Minn. App. 2019). “One objective indicator of intoxication can constitute
reasonable and probable grounds to believe a person is under the influence.” Id. (quotation
omitted).
Griebenow cites State v. Burbach in support of his argument. 706 N.W.2d 484
(Minn. 2005). In Burbach, the supreme court held that an “officer does not have a
reasonable, articulable suspicion of drug possession” that is sufficient to expand a traffic
stop by requesting to search a vehicle if that “officer’s suspicion . . . is supported only by
a driver’s nervous behavior, an unsubstantiated tip of unknown origin, and speeding,” and
if “the driver does not exhibit other signs of impairment[.]”Id. at 491. Griebenow contends
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that the deputy did not have reasonable, articulable suspicion because the only information
the deputy had to expand the traffic stop was “the second-hand assertions that [Griebenow]
had alcohol on his breath, an admission by [Griebenow] that he had consumed alcohol
earlier (2-3 beers) and an open bottle produced by [brother from] what was alleged to be
[Griebenow’s] truck.”
Griebenow’s reliance on Burbach is misplaced. First, unlike Burbach, the tip here
was not from an unknown source. Instead, the deputy knew that the tip came from brother.
Second, Griebenow exhibited signs of impairment. The deputy testified that Griebenow
was unsteady on his feet, that his speech was slurred, and that his eyes were glassy.
Griebenow’s unsteadiness and his slurred speech are also established in the record by
another deputy’s body-worn camera footage. Third, Griebenow admitted to the deputy that
he had been drinking and that he had recently consumed two to three beers. Fourth, brother
retrieved multiple bottles of alcohol from Griebenow’s truck. These circumstances
provided the deputy with more than a mere hunch that Griebenow was driving under the
influence of alcohol. See Timberlake, 744 N.W.2d at 393.
Griebenow also asserts that, because the deputy “admitted that prior to his decision
to prolong the encounter and commence his DWI investigation, he did not believe
[Griebenow] was impaired[,]” the deputy could not have had reason to believe that
Griebenow was driving under the influence. But the deputy did not testify that he did not
believe Griebenow was under the influence. Rather, the deputy testified that, after he
observed Griebenow’s slurred speech, his glassy eyes, and his unsteadiness, he did not
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have an opinion about whether Griebenow was under the influence. The deputy also
testified that he believed Griebenow “had used alcohol in . . . a recent time.”
Moreover, the supreme court has observed that “the preliminary screening test
appears to be intended to be utilized in situations where the officer, after observing the
driver, is unsure whether the driver is under the influence of alcohol.” Marben v. State,
Dep’t of Pub. Safety, 294 N.W.2d 697, 700 (Minn. 1980). And our jurisprudence requires
analysis of objective indicia of intoxication, not an officer’s subjective assessment. See
Otto, 924 N.W.2d at 661. As discussed above, the record includes multiple objective
indicators of Griebenow’s intoxication before the deputy requested that Griebenow
perform the PBT.2
The circumstances that the deputy observed provided sufficient indicia of
intoxication to support reasonable, articulable suspicion that Griebenow had driven the
tractor while impaired. Thus, we conclude that the district court correctly determined that
the deputy had reasonable, articulable suspicion to request that Griebenow submit to a PBT.

2 Griebenow maintains that the deputy lacked the requisite reasonable, articulable suspicion
to request that Griebenow perform the PBT because the deputy did not testify that
Griebenow exhibited any signs of impairment during the HGN test. The record defeats this
argument. The deputy stated that Griebenow did not properly complete the HGN test. The
deputy explained that, rather than follow the deputy’s instructions that Griebenow follow
the deputy’s finger with only his eyes, Griebenow instead moved his head along with the
deputy’s finger. The deputy said that he did not know if Griebenow “was misunderstanding
[his] instructions,” or if Griebenow was unable to perform the test appropriately. And while
the deputy agreed that Griebenow’s failure to complete the HGN test did not reveal “any
clues” of impairment, the deputy also testified that Griebenow’s conduct in response to the
HGN test did not dispel his suspicion that Griebenow might be intoxicated because
Griebenow had already admitted to drinking, the deputy had witnessed the open bottle of
liquor, and the deputy had observed Griebenow’s glassy eyes, unsteadiness, and slurred
speech.
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III. The district court erred by convicting Griebenow of both DWI and driving
with an alcohol concentration at or above the established limit based on
charges arising from a single behavioral incident.

The district court convicted Griebenow of both count one, third- degree DWI —
operating a motor vehicle under the influence of alcohol, in violation of Minnesota Statutes
section 169A.20, subdivision 1(1), and count two, third-degree DWI —operating a motor
vehicle with an alcohol concentration of 0.08 within two hours, in violation of Minnesota
Statutes section 169A.20, subdivision 1(5). On appeal, neither party has argued that the
district court erred in doing so. But “it is the responsibility of appellate courts to decide
cases in accordance with law,” which “is not to be diluted by counsel’s oversights, lack of
research, failure to specify issues or to cite relevant authorities.” State v. Hannuksela, 452
N.W.2d 668, 673-74 n.7 (Minn. 1990) (quotation omitted) (considering the application of
the law of severance or partial invalidity “notwithstanding that the parties failed to raise or
discuss the issue in their briefs or at oral argument”); see also Minn. R. Civ. App. P. 103.04
(providing that, “on appeal from a judgment[, the appellate courts] may review any order
involving the merits or affecting the judgment” and “may review any other matter as the
interest of justice may require”).
Consistent with our responsibility to decide this case in accordance with law, we
conclude that the interest of justice requires our review of the district court’s decision to
convict Griebenow of both count one and count two. Minnesota Statutes section 609.04,
subdivision 1 (2022), provides that “[u]pon prosecution for a crime, the actor may be
convicted of either the crime charged or an included offense, but not both.” The Minnesota
Supreme Court has interpreted this prohibition as precluding “multiple convictions under
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different sections of a criminal statute for acts committed during a single behavioral
incident.” State v. Jackson, 363 N.W.2d 758, 760 (Minn. 1985). Because it is a legal
question, we exercise de novo review in considering whether a conviction violates section
609.04, subdivision 1. State v. Cox, 820 N.W.2d 540, 552 (Minn. 2012).
Our precedent establishes that, where the charges arise from a single behavioral
incident, a district court cannot convict a defendant of both DWI and driving with an
alcohol concentration at or above the established limit. State v. Clark, 486 N.W.2d 166,
170-71 (Minn. App. 1992). In Clark, we reasoned that the appellant was convicted under
“different subsections of the same statute” and that the charges “applied to one behavioral
incident.” Id. at 171. Citing Jackson, we concluded that “[o]ne of the convictions must be
vacated.” Id. at 170-71. And we later reaffirmed Clark in a case involving another
defendant who was similarly convicted of both DWI and driving with an alcohol
concentration above the legal limit. State v. Coleman, 944 N.W.2d 469, 487 (Minn. App.
2020), aff’d on other grounds, 957 N.W.2d 72 (Minn. 2021). Consistent with our reasoning
in Clark, we concluded in Coleman that, because the offenses were based on the same
behavioral incident, section 609.04, subdivision 1, only permitted one conviction. Id.
Here, the state charged Griebenow with two separate third-degree DWI offenses
stemming from a single vehicle stop based on suspicion of DWI. It is undisputed that the
charges arise from a single behavioral incident. Because the DWI offenses at issue are
defined in separate subparts of the same subdivision of section 169A.20, the district court
was not permitted to enter judgments of conviction for both crimes under section 609.04,
subdivision 1.
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We therefore conclude that the appropriate remedy for this error is to reverse and
remand to the district court with instructions to vacate count one, third-degree DWI —
operating a motor vehicle under the influence of alcohol, leaving the district court’s finding
of guilt for that offense intact.3 Coleman, 944 N.W.2d at 487.
Affirmed in part, reversed in part, and remanded.

3 In the interest of clarity, our decision to reverse and remand relates only to count one in
Minnesota Court of Appeals File No. A24- 0006, which arises from Minnesota Third
Judicial District Court File No. 55-CR-22-8115 (i.e., Griebenow’s criminal case). In
Minnesota Court of Appeals File No. A23- 1649, which arises from Minnesota Third
Judicial District Court File No. 55-CV -22-7856 (i.e., Griebenow’s implied-consent case),
we affirm.