This opinion is nonprecedential except as provided by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

A24-0451

State of Minnesota,

Appellant,

vs.

Daniel Scott Nelson,

Respondent.

Filed August 26, 2024

Reversed and remanded

Kirk, Judge*

Sherburne County District Court

File No. 71-CR-23-1235

Keith Ellison, Attorney General, St. Paul, Minnesota; and

Kathleen A. Heaney, Sherburne County Attorney, George R. Kennedy, Assistant County 

Attorney, Elk River, Minnesota (for appellant)

Brady E. Cysiewski, Douglas T. Kans, Kans Law Firm, LLC, Bloomington, Minnesota 

(for respondent)

Considered and decided by Bjorkman, Presiding Judge; Reyes, Judge; and Kirk, 

Judge. 

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to

Minn. Const. art. VI, § 10.
2

NONPRECEDENTIAL OPINION

KIRK, Judge

Appellant State of Minnesota appeals the district court’s pretrial order dismissing 

the complaint against respondent Daniel Scott Nelson for lack of probable cause. Because 

the state presented sufficient facts to establish probable cause for believing that Nelson was 

in physical control of the vehicle, we reverse and remand.

FACTS

On October 1, 2023, law enforcement responded to a report of a man passed out in 

the backseat of a vehicle in a WalMart parking lot. One of the responding officers 

recognized the vehicle and unconscious man from an encounter the previous day during 

which the officer found Nelson unconscious in the backseat of his vehicle after he had 

inhaled intoxicating fumes from cans of compressed air. Nelson was transported to the 

hospital following the previous incident.

On October 1, Nelson was again unconscious and surrounded by cans of compressed 

air, so the officers knocked on the window and yelled to wake Nelson. The officers opened 

the rear doors, which caused Nelson to awaken, and asked Nelson to exit the vehicle. 

Nelson complied and subsequently admitted that he had inhaled intoxicating fumes from

the cans of compressed air that were in the vehicle.

Nelson had trouble remembering basic facts, such as the day of the week. Nelson 

initially indicated that he did not have the keys to the vehicle, but, when asked how to lock 

the vehicle, Nelson grabbed the keys from the rear-passenger wheel well.
3

The state charged Nelson with felony driving while impaired (DWI) and gross 

misdemeanor violation of a restricted driver’s license. See Minn. Stat. §§ 169A.20, subd. 

1(3) (intoxicating substance DWI) (Supp. 2023), 171.09, subd. 1(f)(1) (restricted license 

prohibiting consumption or possession of alcohol or controlled substance) (2022). Nelson 

moved to dismiss the complaint for lack of probable cause. The parties stipulated to 

documentary exhibits to serve as the record for the contested omnibus motion. The district 

court granted the motion to dismiss, determining the complaint failed to show that Nelson 

was in physical control of the vehicle while he was under the influence.

The state appeals.

DECISION

The state’s ability to appeal is limited. State v. Rourke, 773 N.W.2d 913, 923 

(Minn. 2009). In a pretrial appeal, the state must show that “the district court’s alleged 

error, unless reversed, will have a critical impact on the outcome of the trial.” 

State v. Stavish, 868 N.W.2d 670, 674 (Minn. 2015) (quoting Minn. R. Crim. P. 28.04, 

subd. 2(b)). The critical-impact requirement is met when a district court dismisses charges 

against a defendant. See State v. Trei, 624 N.W.2d 595, 597 (Minn. App. 2001), petition 

for rev. dismissed (Minn. June 22, 2001).

The state may only appeal a probable cause dismissal if it is based on a legal 

determination. State v. Barker, 888 N.W.2d 348, 352 (Minn. App. 2016). Whether the 

dismissal is a legal or factual determination is a threshold jurisdictional question. Id. at 

353. As with other legal determinations, it is reviewed de novo. State v. Linville, 598 

N.W.2d 1, 2 (Minn. App. 1999).
4

Nelson does not challenge the state’s authority to bring this pretrial appeal. And, 

because any error in the district court’s dismissal of the charges would have a critical 

impact on the case, we turn to our de novo review of whether probable cause exists to 

support the charges.

Upon a defendant’s motion to dismiss for lack of probable cause, the district “court 

must determine whether probable cause exists to believe that an offense has been 

committed and that the defendant committed it.” Minn. R. Crim. P. 11.04, subd. 1(a). 

When making this determination, “[i]t is not necessary for the state to prove the defendant’s 

guilt beyond a reasonable doubt.” State v. Florence, 239 N.W.2d 892, 896 (Minn. 1976) 

(quotation omitted). “Unlike proof beyond a reasonable doubt or preponderance of the 

evidence, probable cause requires only a probability or substantial chance of criminal 

activity, not an actual showing of such activity.” State v. Harris, 589 N.W.2d 782, 790-91 

(Minn. 1999) (quotation omitted). “[T]he threshold factual showing of probable cause 

necessary to support a charge is low . . . .” State v. Lopez, 778 N.W.2d 700, 705 (Minn. 

2010).

When considering a motion to dismiss for lack of probable cause, “[t]he district 

court must view the evidence in the light most favorable to the state and may not assess the 

relative credibility or weight of the conflicting evidence.” Barker, 888 N.W.2d at 353 

(citation and quotation omitted). Such issues are, “with rare exception,” left to the jury. 

State v. Elmourabit, 373 N.W.2d 290, 294 (Minn. 1985).
5

The district court dismissed the charges of felony driving while impaired and gross 

misdemeanor violation of a restricted driver’s license, both of which require the state show 

that Nelson was in physical control of the vehicle. See Minn. Stat. §§ 169A.20, subd. 1(3) 

(prohibiting persons from driving, operating, or being in physical control of a motor vehicle

when intoxicated), 171.09, subd. 1(f)(1) (prohibiting individuals with a restricted license 

from “driv[ing], operat[ing], or [being] in physical control of a motor vehicle”). “Physical 

control” has a broad definition and “is meant to cover situations when an intoxicated person 

‘is found in a parked vehicle under circumstances in which the [vehicle], without too much 

difficulty, might again be started and become a source of danger to the operator, to others, 

or to property.’” State v. Fleck, 777 N.W.2d 233, 236 (Minn. 2010) (quoting 

State v. Starfield, 481 N.W.2d 834, 837 (Minn. 1992)). Accordingly, “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.

“Physical control” is given “the broadest possible effect” because the law 

prohibiting a person from being in physical control of a motor vehicle while intoxicated is 

aimed at protecting public safety. Id. (quoting State v. Juncewski, 308 N.W.2d 316, 319 

(Minn. 1981)). “We consider a number of factors in determining whether a person is in 

physical control of a vehicle, 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. (citing Starfield, 481 N.W.2d at 839.) 
6

The state claims that the district court exceeded its role in determining whether the 

charges were supported by probable cause when it weighed and considered the evidence 

before determining that Nelson was not in physical control of the vehicle. We agree.

In determining whether probable cause supported the charges, the district court 

observed that Nelson “took steps to not only remove the keys from his vehicle but also to 

hide the keys in a place that was not easily reachable from his seat inside the vehicle” and 

noted that the state did not provide authority “to support a finding that an inebriated person 

may be in physical control of a vehicle when he does not have keys to start the vehicle in 

his possession.”

The record shows that Nelson was found alone in a parked vehicle. And although 

Nelson indicated that he did not have the vehicle’s keys, the evidence also shows Nelson 

quickly retrieved his keys when asked how the vehicle could be locked. The district court 

weighed the evidence and determined that Nelson was not in physical control of the 

vehicle. Yet, when determining whether charges are supported by probable cause, the 

evidence is to be viewed in a light most favorable to the state and the district court “may 

not assess[] the relative credibility or weight of . . . conflicting evidence.” Barker, 888 

N.W.2d at 353 (quotation omitted); see also Elmourabit, 373 N.W.2d at 294 (noting that 

issues that require weighing evidence or assessing credibility are, “with rare exception,” 

left to the fact-finder).1

1 This decision is limited. We do not discourage individuals from safely recovering from 

impairment before driving, and we express no opinion regarding whether these facts

demonstrate that Nelson was in physical control of the vehicle. We simply conclude that 

the district court erred by resolving the issue at this stage of the case.
7

The state need not provide an actual showing of criminal activity to establish 

probable cause supporting charges. Harris, 589 N.W.2d at 790-91 (noting probable cause 

is a lower standard of proof than proof beyond a reasonable doubt and preponderance of 

evidence). Instead, the probable-cause determination may be based on the belief that 

Nelson was in physical control of the vehicle. See Minn. Stat. § 169A.20, subd. 1(3). The 

record shows that Nelson was inside the vehicle, could access the controls, and knew where 

the keys were located. Fleck, 777 N.W.2d at 236 (“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”). Probable cause, therefore, exists to 

believe that Nelson was in physical control of the vehicle while intoxicated.

Reversed and remanded.