author: WRIGHT, Judge.

text:
    STATE of Minnesota, Respondent, v. Jeffrey Richard PRAX, Appellant.
    No. A03-1517.
    Court of Appeals of Minnesota.
    Sept. 7, 2004.

      Craig E. Cascarano, Minneapolis, MN, for appellant.
    Mike Hatch, Attorney General, St. Paul, MN; and Amy Klobuchar, Hennepin County Attorney, Thomas A. Weist, Assistant County Attorney, Minneapolis, MN, for respondent.
    Considered and decided by WRIGHT, Presiding Judge; KALITOWSKI, Judge; and PARKER, Judge.

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

   OPINION

WRIGHT, Judge.

On appeal from a conviction of attempted first-degree controlled substance crime, appellant argues that the methamphetamine seized in a search incident to arrest should have been suppressed because the law enforcement officer, who stopped appellant for erratic driving and running a red light, lacked probable cause to arrest him for driving while impaired. Appellant also contends that the district court erred in denying his motion to withdraw a Loth-enbach stipulation. We affirm.

FACTS

On May 17, 2002, at approximately 1:00 a.m., Trooper Christopher Erickson observed a brown Corvette driven by appellant Jeffery Prax drift over the lane dividers and weave within its lane. Erickson activated the squad car’s video camera and followed Prax for a short distance. After observing Prax stop at a red light, proceed through the light while still red, and turn left, Erickson initiated a traffic stop.

Erickson questioned Prax about the illegal turn. Prax explained that he turned left despite the stoplight because he believed that he was turning onto a one-way street. During the conversation, Erickson observed that Prax’s eyes were watery and glassy. Prax was fidgety and appeared to be anxious. Erickson also noticed that Prax was sweating and his pupils appeared dilated. Based on his observations as to Prax’s condition and driving conduct, Erickson conducted field sobriety tests to determine whether Prax was impaired.

Prax was given a preliminary breath test, which registered 0.00 alcohol concentration. Prax also passed the horizontal-gaze-nystagmus test and the vertical-nys-tagmus test. In addition, he recited the alphabet correctly. But Prax failed an eye-convergence test when his eyes reacted slowly to light. He also displayed an elevated pulse, along with eyelid and body tremors. His sense of time also was impaired. When asked to close his eyes and touch the tip, not the pad, of his finger to the center of his nose, Prax touched the pad to his nose on some attempts and the tip on others. And on some attempts, he missed the center of his nose. Finally, when asked to count backward from 95 to 70, Prax stopped at 80 to inquire how far he was supposed to count. Based on his training and his observations of Prax’s demeanor, driving conduct, physical condition, and performance during the sobriety tests, Erickson arrested Prax for driving while impaired (DWI).

Following the arrest, Prax was transported to the Richfield Police Department, where a full search was conducted with the assistance of another officer. The officers discovered a package of methamphetamine in his crotch area and a second package of methamphetamine in his pant leg. The packages totaled 55.4 grams of methamphetamine. The officers also discovered $1,087 in Prax’s possession. Prax was subsequently charged with first-degree possession of a controlled substance.

Prax moved to suppress the seized evidence, arguing that Erickson lacked reasonable articuable suspicion to support the stop and lacked probable cause to believe Prax was under the influence of alcohol or a controlled substance. Following a hearing, the district court denied Prax’s motion to suppress, holding that the stop was constitutional. The district court also concluded that, based on Prax’s driving conduct, his physical appearance, and his performance during the field sobriety tests, there was probable cause to arrest Prax for DWI.

On April 29, 2008, Prax agreed to a stipulated-facts trial pursuant to State v. Lothenbach, 296 N.W.2d 854 (Minn.1980). Under the terms of the agreement, the state would reduce the charge to attempted first-degree controlled substance offense. And if found guilty, Prax would be sentenced to 55 months’ imprisonment, a downward durational departure. Prax accepted the offer. On June 18, 2003, the district court found Prax guilty of attempted first-degree controlled substance crime.

Prax failed to appear for sentencing. He surrendered to Hennepin County law enforcement authorities five weeks later. Prax then moved to withdraw his Lothen-bach stipulation. In the alternative, Prax sought release pending appeal with an agreement to receive the presumptive sentence of 134 months’ imprisonment. At a hearing on the motions, Prax testified that he agreed to the Lothenbach procedure because he believed that he would have a choice, if found guilty, of immediate commitment to the commissioner of corrections for 55 months or a sentence of 134 months with a release pending appeal. Finding that Prax was properly advised of his rights and, with the assistance of counsel, knowingly and voluntarily waived them and agreed to the Lothenbach proceeding, the district court denied the motions and sentenced Prax to 55 months’ imprisonment. This appeal followed.

ISSUES

I. Did the district court err in determining that the officer’s decision to arrest appellant was supported by probable cause?

II. Did the district court abuse its discretion by denying appellant’s motion to withdraw the waiver of constitutional rights and consent to a trial on stipulated facts pursuant to the Loth-enbach procedure?

ANALYSIS

I.

On appeal from a district courts finding that a police officer had probable cause to arrest, we make “an independent review of the facts to determine the reasonableness of the police officers actions.” State v. Olson, 436 N.W.2d 92, 94 (Minn.1989), ajfd, 495 U.S. 91,110 S.Ct. 1684,109 L.Ed.2d 85 (1990). Absent clear error, the district courts finding that the officer had probable cause to arrest will not be disturbed. State v. Camp, 590 N.W.2d 115, 118 (Minn.1999).

Probable cause to arrest exists when, under the totality of facts and circumstances, “a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed.” State v. Wynne, 552 N.W.2d 218, 221 (Minn.1996) (quoting State v. Carlson, 267 N.W.2d 170, 173 (Minn.1978)) (quotation marks omitted). Probable cause, therefore, requires something more than mere suspicion but something less than the evidence necessary for conviction. Camp, 590 N.W.2d at 119 n. 9. On review, an officers determination of probable cause is afforded' great deference. State v. Olson, 342 N.W.2d 638, 64(M1 (Minn.App.1984).

Prax does not challenge the initial stop of the motor vehicle. Rather, he contends that there were insufficient indi-cia of intoxication to warrant an arrest for DWI. Prax asserts that his “poor” driving conduct was minimal at best and that he passed virtually every sobriety test administered. Although Prax concedes that he did not “totally” pass one or two of the tests, he argues that, based on his overall performance, law enforcement lacked probable cause to arrest him for DWI.

Based on our review of the record, we disagree. Erickson observed Prax drift over the lane dividers and weave within his lane. Erickson also observed Prax make an illegal left turn at a stoplight. Prax performed well on many of the field sobriety tests. But he also exhibited indicia of intoxication, including sweating, dilated pupils, and anxious, fidgety behavior. Prax also displayed eyelid and body tremors, had an elevated pulse, and swayed during one of the tests. At the suppression hearing, Erickson testified that Praxs performance during the field sobriety tests was consistent with that of an individual under the influence of marijuana or a stimulant. The record reflects that Erickson is well trained in detecting impairment by a controlled substance. He instructs law enforcement classes on field sobriety evaluations and serves as a resource for law enforcement agencies when a driver appears intoxicated but does not test positive for alcohol.

Accordingly, in light of Ericksons expertise in detecting impairment by controlled substances, we conclude that the observed driving conduct, physical indicia, and results of the field sobriety tests designed to identify impairment by stimulants supplied the officer with probable cause to believe that Prax was driving while impaired by a controlled substance.

II.

Prax next argues that, because there was a misunderstanding as to the terms of the agreement to submit the case pursuant to the Lothenbach procedure, the district court erred by denying his motion to withdraw his consent to a stipulated-facts trial.

We review a postconviction courts decision to deny relief for an abuse of discretion. Dukes v. State, 621 N.W.2d 246, 251 (Minn.2001). Determining the nature of the parties plea agreement is a factual inquiry for the postconviction court to resolve. See Kochevar v. State, 281 N.W.2d 680, 687 (Minn.1979). But interpretation and enforcement of such agreements involve issues of law, which we review de novo. State v. Brown, 606 N.W.2d 670, 674 (Minn.2000).

A criminal defendant does not have an absolute right to withdraw a guilty plea once entered. Alanis v. State, 583 N.W.2d 573, 577 (Minn.1998). But a criminal defendant may withdraw a guilty plea, even after sentencing, if the defendant shows that “withdrawal of the plea is necessary to correct a manifest injustice.” State v. Ecker, 524 N.W.2d 712, 715-716 (Minn.1994) (quoting Minn. R.Crim. P. 15.05, subd. 1). “A manifest injustice occurs when a guilty plea is not accurate, voluntary, and intelligent.” Alanis, 583 N.W.2d at 577.

A Lothenbach proceeding, however, does not involve a guilty plea. State v. Verschelde, 595 N.W.2d 192, 194-95 (Minn.1999). Rather, the “Lothenbach procedure calls for the defendant to enter a plea of not guilty, waive his right to a jury trial, and then stipulate to the prosecutions ease.” Id. at 195 (quoting Lothenbach, 296 N.W.2d at 857). But like a guilty plea, a Lothenbach submission constitutes a waiver of constitutional rights, and such waiver must be made knowingly and voluntarily. To withdraw from the agreement to utilize the Lothenbach procedure, the defendant must establish that the agreement was not made knowingly and voluntarily. Compare id., with State v. Ross, 472 N.W.2d 651, 653 (Minn.1991) (stating that a defendants waiver of his constitutional right to a trial by jury must be made knowingly and voluntarily).

Here, Prax testified at the post-conviction proceeding that he believed that, at his sentencing, he would have an option of 55 months imprisonment and immediate surrender to the commissioner of corrections or 134 months imprisonment stayed pending appeal. Praxs trial counsel also testified that Prax may have been confused as to his available options based on his counsels explanation of conversations held with the district court. Based on the testimony at the postconviction proceeding regarding Praxs understanding of the “plea agreement,” Prax argues that he is entitled to relief because the “plea agreement” was unfulfilled.

Praxs argument is unavailing. Despite Praxs testimony to the contrary, the record reflects that Praxs agreement to submit the case pursuant to the Lothenbach procedure was knowing and voluntary. At the hearing, the prosecutor stated, “[I]f [Prax] is found guilty, he would have been sentenced to 55 months at the Commissioner of Corrections, and we will come back in approximately four weeks for sentencing.” Shortly thereafter, the following exchange between Prax, his trial counsel, and the district court occurred:

[THE COURT:] Has anyone, including me, promised you anything in exchange for your waiver of these trial rights? Other than those things that have been spoken about in the courtroom today?
[DEFENSE COUNSEL:] Other than the sentence consideration, are you freely — and no promises have been made; is that right?
[PRAX:] That is correct.
[DEFENSE COUNSEL:] Do you have any questions of me or the court at this time?
[PRAX:] No.

The record is silent as to an agreement to give Prax the sentence option of 134 months imprisonment, stayed pending appeal.

In addition, the record reflects that the state vehemently opposed any agreement that would have enabled Prax to remain free on bond pending appeal. Although Prax now contends that he misunderstood the terms of the agreement, the facts establish that Praxs waiver of rights was knowing, voluntary, and not the product of confusion as to any option for release pending appeal.

DECISION

The officers decision to arrest appellant for driving while impaired was supported by probable cause. And the district court did not abuse its discretion in denying Praxs motion to withdraw the waiver of rights and consent to a trial on stipulated facts pursuant to the Lothenbach procedure.

Affirmed.

      . Erickson has completed Drug Evaluation Instructor School and is an assistant instructor for law enforcement classes on field sobriety evaluations. Police agencies often secure Erickson’s assistance when they stop drivers who are apparently intoxicated but do not test positive for alcohol.

      . Because of his prior convictions of second-degree murder, aggravated robbery, and burglary, Prax's presumptive sentence for the charged offense was 134 months’ imprisonment.


source: Caselaw Access Project

author: PARKER, Judge

license: Public Domain

text:
    Terry L. GALE, Appellant, v. Dorothy N. RITTENHOUSE, et al., Respondents.
    No. A04-7.
    Court of Appeals of Minnesota.
    Sept. 7, 2004.

      Gordon P. Heinson, Theresa A. Peterson, Fabyanske, Westra & Hart, P.A., Minneapolis, MN, for appellant.
    Robert C. Hoene, John P. Worrell, Hoene & Krause, St. Paul, MN, for respondents.
    Considered and decided by WRIGHT, Presiding Judge; KALITOWSKI, Judge; and PARKER, Judge.
   OPINION

PARKER, Judge

Appellant challenges the district court’s decision to grant summary judgment to respondent on the basis that appellant lacked standing to bring the action in district court. We affirm.

FACTS

The parties entered into a limited partnership agreement forming Nina Properties in 1981. The partnership agreement designated respondent Dorothy Ritten-house as limited partner and her daughter, appellant Terry Gale (formerly Terry Rit-tenhouse), as general partner. The partnership agreement provided that “[a] General Partner may be removed from the Partnership as General Partner, with or without cause, upon the majority vote of the Limited Partners[ ] ... the General Partner may be replaced by a vote of a majority in interest of the Limited Partners.” On July 22, 2002, Rittenhouse, the sole limited partner, voted to remove Gale as general partner effective August 10, 2002. Gale received a copy of the vote informing her that Rittenhouse voted to remove her as general partner. On September 6, Rittenhouse appointed SAM Group, LLC as replacement general partner effective August 10. Under the partnership agreement,

[I]f a replacement General Partner has been appointed, the departing General Partner shall sell its Partnership interest to the replacement General Partner at a purchase price based on the fair market value.... The fair market value shall be determined by agreement between the departing General Partner and the replacement General Partner within 90 days of departure, or if no agreement is reached, it shall be determined upon arbitration.

SAM offered to purchase Gale’s partnership interest, but Gale declined the offer and presented a counteroffer. The parties attempted unsuccessfully to reach an agreement in January 2003, well over 90 days after Gale’s departure on August 10, 2002. But neither party initiated arbitration proceedings.

Gale filed a complaint alleging that (1) the partnership was dissolved in either 1997 or 2002 and (2) she is entitled to 50% interest in the partnership’s assets. Rit-tenhouse filed a counterclaim alleging that Gale waived her right to arbitrate the fair market value of her interest in the partnership by filing a civil action in district court. Both parties moved for summary judgment. The district court concluded that Gale had not waived her right to arbitrate the fair market value of her partnership interest and granted summary judgment in favor of Gale on Rittenhouse’s counterclaim. The district court also granted summary judgment in favor of Rittenhouse on Gale’s complaint, concluding that Gale did not have standing to bring a district court action under the limited partnership agreement or the uniform limited partnership act. Gale now appeals.

ISSUE

Did Gale have standing to bring an action in district court under the limited partnership agreement or the uniform limited partnership act?

ANALYSIS

Gale asserts that she had standing to seek a declaratory judgment that the partnership was dissolved as a matter of law under section 322A.63 of the uniform limited partnership act and sections 13.6 and 14.1(02) of the limited partnership agreement. See Minn.Stat. § 322A.63 (2002). The district court, however, construed Gale’s complaint as an action for judicial dissolution of the partnership under section 322A.64 (2002) and determined that because Gale was a removed partner she lacked standing to bring an action under the uniform limited partnership act. The district court further determined that “[t]he partnership agreement clearly provides that the purchase price of the removed partner’s partnership interest shall be determined by arbitration.”

Whether a party has standing to sue is a question of law, which appellate courts review de novo. Joel v. Wellman, 551 N.W.2d 729, 730 (Minn.App.1996), review denied (Minn. Oct. 29, 1996). “Standing is the requirement that a party has a sufficient stake in a justiciable controversy to seek relief from a court.” State by Humphrey v. Philip Morris Inc., 551 N.W.2d 490, 493 (Minn.1996). “[A] party whose legitimate interest is ‘injured in fact’ has standing unless the legislature has indicated that the interest asserted is not to be protected.” Annandale Advocate v. City of Annandale, 435 N.W.2d 24, 27 (Minn.1989) (quoting Snyder’s Drug Stores, Inc. v. Minn. State Bd. of Pharmacy, 301 Minn. 28, 32, 221 N.W.2d 162, 165 (1974)). Pleadings are interpreted according to their plain meaning and the general rules of pleading. See Moreno v. Crookston Times Printing Co., 610 N.W.2d 321, 327 (Minn.2000).

In her complaint, Gale requests the district court to grant “a declaratory judgment determining that the Partnership must be dissolved, terminated and liquidated.” This language is ambiguous as to whether Gale sought a judicial dissolution or a determination that a nonjudicial dissolution occurred under the uniform limited partnership act. The uniform limited partnership act provides that the plaintiff in a derivative action:

[MJust be a partner at the time of bringing the action and (1) at the time of the transaction of which complaint is made or (2) plaintiffs status as a partner had devolved by operation of law or pursuant to the terms of the partnership agreement from a person who was a partner at the time of the transaction.

Minn.Stat. § 322A.80 (2002) (emphasis added). Gale concedes that she was removed as general partner in 2002, but argues that she remained a limited partner after her removal. We disagree. Gale’s contention that she remains a limited partner is unsupported by Minnesota authority, and the plain language of the partnership agreement clearly provides that Gale is solely entitled to a determination of the fair market value of her partnership interest in the event that she and SAM cannot agree on the value within 90 days.

Moreover, where the parties evince a clear intent to arbitrate a controversy through specific provisions of the limited partnership agreement, the matter is for the arbitrator(s) to determine and not the court; if the parties intent is reasonably debatable as to the scope of the arbitration clause, then the arbitrators must initially determine arbitrability. Johnson v. Piper Jajfray, Inc., 530 N.W.2d 790, 795 (Minn.1995); Ateas v. Credit Clearing Corp. of Am., 292 Minn. 334, 341, 197 N.W.2d 448, 452 (1972); Layne-Minnesota Co. v. Regents of Univ. of Minn., 266 Minn. 284, 289,123 N.W.2d 371, 375-76 (1963).

The partnership agreement provides that, “[t]he fair market value shall be determined by agreement between the departing General Partner and the replacement General Partner within 90 days of departure, or if no agreement is reached, it shall be determined upon arbitration.” The parties’ intent is clear, and the fair market value of Gale’s partnership interest must be determined through arbitration pursuant to the limited partnership agreement. Accordingly, the district court properly concluded that summary judgment was appropriate because the issue must be decided through arbitration.

DECISION

We affirm the district court’s determination that Gale lacked standing to bring her action in district court. The nature, extent, and fair market value of Gale’s partnership interest as of August 10, 2002,

must be determined through arbitration as provided by the partnership agreement.

Affirmed.

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


author: PARKER, Judge.

text:
    In the Matter of the GUARDIANSHIP OF Terese WELCH, Ward.
    No. A03-1871.
    Court of Appeals of Minnesota.
    Sept. 7, 2004.

      Mary Ferris Jensen, Minneapolis, MN, for appellant Krasowski and guardians.
    Gregory R. Solum, Edina, MN, for respondent Welch.
    Considered and decided by ANDERSON, Presiding Judge; PETERSON, Judge; and PARKER, Judge.
   OPINION

PARKER, Judge.

Respondent, who is subject to a private guardianship, suffers from mental illness. Although her condition can be treated with neuroleptic medication, she refuses such treatment unless she is subject to a court order. Appellants sought to extend the private guardian’s existing medical consent powers to include consent to the administration of neuroleptic medication, by force if necessary, once respondent is no longer civilly committed. The district court denied the petition, finding no legal authority to support it. Because Minn.Stat. § 524.5-313(c)(4)(i) (Supp.2003) does not include neuroleptic medications among the exceptions to necessary medical treatment that require prior judicial approval, we find that prior court approval is not required for such consent. But because constitutional rights are implicated here, we remand for application of the Price and Mathews factors to ensure that respondent’s privacy and due process rights are adequately protected.

FACTS

Respondent Terese Welch is diagnosed with mental illness, which grossly impairs her judgment, behavior, capacity to recognize reality, capacity to reason, and capacity to understand. Welch was committed to Hennepin County Medical Center as mentally ill by order of the district court dated March 21, 2003. The court authorized administration of neuroleptic medication for the duration of the order for commitment. Welch’s brothers acted as her guardians until September 9, 2003, when the district court appointed appellant Jean Sulzle as Welch’s private guardian.

Appellant Phillip Krasowski, Welch’s psychiatric nurse, petitioned for modification of the guardianship to include the authority to give informed consent to the use of neuroleptic medication and to consent to the forcible administration of neu-roleptic medication if it is reasonable and necessary to do so to treat Welch’s mental illness.

This matter came before Hennepin County District Court on May 8, 2003, one day before Welch was released to a transitional group home. Krasowski testified that Welch had a history of compliance with medication while committed, but that she did not take the medication upon release. This ultimately resulted in a return of symptoms, crisis, and rehospitalization. He testified that while on medication, Welch could easily manage her symptoms. The record shows, however, that Welch believes the medication is illegal and will only take it when she has a court order to do so.

The district court denied the petition for modification, holding that the case law and statutes do not apply to private conserva-torships without civil commitment, and thus the district court had no legal authority to grant the requested relief.

ISSUE

What process is required for a private guardian to consent to forcible administration of neuroleptic medication for a legally incapacitated individual who is not under civil commitment?

ANALYSIS

Appellants argue that the district court has the legal authority to grant their request to modify the guardianship. This issue involves the interpretation of statutes and caselaw, which are purely legal questions. Martin ex rel. Hoff v. City of Rochester, 642 N.W.2d 1, 9 (2002). Thus, this court need not give deference to the district courts determinations. Frost-Benco Elec. Assn v. Minn. Pub. Utils. Commn, 358 N.W.2d 639, 642 (Minn.1984).

Under Minn.Stat. § 524.5-313(c)(4)(i), guardians have the authority to consent to the administration of necessary medical procedures on behalf of incapacitated wards:

The duties and powers of a guardian or those which the court may grant to a guardian include, but are not limited to:
[T]he power to give any necessary consent to enable the ward to receive necessary medical or other professional care, counsel, treatment, or service, except that no guardian may give consent for psychosurgery, electroshock, sterilization, or experimental treatment of any kind unless the procedure is first approved by order of the court as provided in this clause. The guardian shall not consent to any medical care for the ward which violates the known conscientious, religious, or moral belief of the ward.

Id. (emphasis added). “Exceptions expressed in a law shall be construed to exclude all others.” Minn.Stat. 645.19 (2002). Because neuroleptic medications are not among the exceptions expressed in the statute, we construe the statute to include neuroleptic medications among the necessary medical care for which a guardian may give consent.

Respondent argues, however, that extending a guardian’s statutory rights to include consent to administer neuroleptic medications adversely affects her constitutional rights as guaranteed by the federal and Minnesota Constitutions. In Jarvis v. Levine, the Minnesota Supreme Court held that under the Minnesota Constitution, the administration of neuroleptic medication is an intrusive form of treatment that affects an individual’s right to privacy. 418 N.W.2d 139, 148 (Minn.1988). The Jarvis court further held that the three-part Price procedure applies to ensure that the right to privacy is protected. Id. at 144. The Price procedure is as follows:

(1) If the patient is incompetent to give consent or refuses consent or his guardian other than persons responsible for his commitment also refuses his consent, before more intrusive forms of treatment may be utilized, the medical director of the state hospital must petition the probate division of the county court in the county in which the hospital is located for an order authorizing the prescribed treatment; (2) the court shall appoint a guardian ad litem to represent the interests of the patient; (3) in an adversary proceeding, pursuant to the petition, the court shall determine the necessity and reasonableness of the prescribed treatment.

Price v. Sheppard 307 Minn. 250, 262, 239 N.W.2d 905, 913 (1976).

In In re Conservatorship of Foster, the Minnesota Supreme Court adopted the three-part Mathews test to ensure that an intrusive medical procedure did not deprive a mentally ill person of the right to due process:

Under this test, we determine whether the process adequately balances: (1) the private interest affected by the governments action; (2) the risk that the process provided will result in an erroneous deprivation of the private interest and the probable value of additional or substitute procedural safeguards; and (3) the states interest in the procedures provided, including the administrative burden and expense the additional procedures sought would require.

547 N.W.2d 81, 85 (Minn.1996).

The district court distinguished Jarvis because that case involved the process by which neuroleptic medication should be administered to individuals subject to civil commitment and this case involves the administration of medication once Welchs civil commitment period expires. The district court also distinguished Foster, reasoning that Foster voluntarily took neuro-leptic medication and it is undisputed that here Welch opposes taking the neuroleptic medication. In addition, the district court, citing Minn.Stat. 252A, 253B.092, noted that the statutes specifically set forth procedures for civilly committed individuals and individuals with public guardians and that those authorities do not apply here.

We agree that those statutes do not apply here. As we stated earlier, however, Minn.Stat. § 524.5 — 313(c)(4)(i), which does not distinguish between public and private guardianships, does not include neuroleptic medications among the exceptions to necessary medical treatment that require pri- or judicial approval. Thus, while the case-law the district court cited is factually distinguishable from the case at bar, they share a common legal issue. The common legal issue, when an incapacitated individual asserts that her constitutional rights will be adversely affected by the guardians consent to the administration of an intrusive medical procedure, is whether the consent actually does so. We hold that in such cases, regardless of whether the individual is subject to a private or public guardianship and regardless of civil commitment status, the constitutional analysis must be applied to ensure protection of an individuals right to privacy and due process.

DECISION

The current record is insufficient for proper analysis of whether Welchs constitutional rights are adversely affected here. Thus, we reverse and vacate the district courts order denying the petition for modification of a conservatorship and remand to the district court for application of the Price procedure and Mathews test.

Reversed and remanded.

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


author: NEUMANN, Justice.

text:
    2004 ND 170
    In the Interest of R.H. Keith Berger, Director of Grand Forks County Social Service Board, Assignee for R.H., and the North Dakota Department of Human Services, Plaintiffs and Appellees, v. Mario Hernandez, Defendant and Appellant.
    No. 20040053.
    Supreme Court of North Dakota.
    Aug. 31, 2004.
    Tricia Joy Steffan, Assistant State’s Attorney, Grand Forks, for plaintiffs and ap-pellees.
    Mario Hernandez (on brief), pro se, Bismarck, for defendant and appellant.
   NEUMANN, Justice.

[¶ 1] Mario Hernandez appealed from an amended judgment setting a child support obligation. We affirm.

[¶ 2] Hernandez was the father of a child born in 1991. The child was frequently cared for in foster homes. Hernandez’s parental rights were terminated on May 29, 2002. On November 4, 2003, the Grand Forks Regional Child Support Unit filed a motion to amend an amended judgment dated June 26, 2000, requesting Hernandez be ordered to reimburse the North Dakota Department of Human Services $5,040 for support provided Hernandez’s child from November 2000 through April 2003 and pay at least $168 per month. In its supporting brief, the Child Support Unit asserted that Hernandez was incarcerated and imputed income of $10,320 to Hernandez, leading to a presumptively correct child support obligation of $168 per month. Hernandez moved for an extension of time to reply to the motion. On December 11, 2003, Hernandez filed an affidavit and reply to the motion.

[¶ 3] The trial court granted the motion to amend, concluding “the only argument of the Defendant having any merit is the argument that his parental rights were terminated on May 29, 2002 and thus his obligation should cease as of that time.” A second amended judgment was entered on January 30, 2004, recognizing that Hernandez was incarcerated, recognizing a minimum wage income was imputed to Hernandez, and ordering him to “reimburse the North Dakota Department of Human Services for support provided for [Hernandez’s child] from November 2000 through April 2003, in the amount of $5,040 ... Defendant shall pay at least $168 per month toward satisfaction of said reimbursement obligation.”

[¶ 4] Hernandez filed a notice of appeal on February 20, 2004. On March 16, 2004, the second amended judgment was amended, with Hernandez’s consent, to correct a mistake in the amount owed by Hernandez by requiring Hernandez to pay the North Dakota Department of Human' Services $3,192 for support provided for his son from November 2000 through May 2002.

[¶ 5] Hernandez contends the statutes authorizing- administrative child support guidelines do not authorize use of an imputed income. In Nelson v. Nelson, 547 N.W.2d 741, 744-45 (N.D.1996), this Court upheld the use of imputed income in the child support guidelines. In Surerus v. Matuska, 548 N.W.2d 384, 389 (N.D.1996), we specifically upheld the use of imputed income for incarcerated child support obli-gors:

Further, we believe application of subsection (6) of the imputed income guideline to an incarcerated obligor who has no other income appropriately promotes this state’s strong public policy of protecting the best interests of children and preserving parents’ legal and moral obligations to support their children, while recognizing, but not excusing, the obvious difficulty an incarcerated obligor faces in providing for his or her children.

[¶ 6] ■ Without providing any citations to authority or persuasive reasoning, Hernandez argues Matuska “must be overturned.” Hernandez’s argument is without merit. This Court has adhered to the Matuska rule. St. Claire v. St. Claire, 2004 ND 39, ¶ 9, 675 N.W.2d 175; Ramsey County Soc. Serv. Bd. v. Kamara, 2002 ND 192, ¶ 9, 653 N.W.2d 693. North Dakota is not alone in imputing income to an incarcerated child support obligor. See, e.g., In re Marriage of Rottscheit, 262 Wis.2d 292, 664 N.W.2d 525, 533-35 (Wis. 2003) (noting at 533, that “[s]tate courts are significantly divided over the effect of incarceration upon a person’s child support obligations”). See also Loss of income due to incarceration as affecting child support obligation, 27 A.L.R.5th 540 (1995). “An obligor’s ability to pay child support is not solely determinable from actual income.” Nelson, 547 N.W.2d at 744. See also, e.g., Interest of M.M., 980 S.W.2d 699 (Tex.App.1998) (citations omitted):

Martinez argues that, because he is incarcerated, he has no income. However, he did not appear at the hearing or -put on any evidence that he is without financial resources. Thus, he is asking this court to hold that there is a legal presumption that an incarcerated person has no assets on which to base a child support award. We agree with the other courts of appeals who have addressed this issue that such a presumption would not be in the best interests of children and parents seeking child support.
In the absence of evidence regarding the obligor’s resources, the court may presume that the party in question earns the minimum wage for a 40-hour work week.
We do not believe incarceration alone can rebut this minimum-wage presumption. See Reyes, 946 S.W.2d at 630. As the Attorney General points out, many people enter prison with assets from past employment. Some inmates earn an- income, while in prison. In the absence of proof from an incarcerated person that he or she does not have such resources, it would not be in the best interest of his children to excuse that person from support obligations.

Id. at 700-701.

[¶ 7] Hernandez argues federal law forbids a mandatory minimum child support order:

The Federal statutes relating to child support and the Supremacy Clause of the U.S. Constitution do not authorize a judgment based upon a non-rebuttable mandatory minimum child support order of $168 (due to an imputation of income), and they forbid it. 42 U.S.C. 667(b)(2); In re Marriage of Gilbert, 88 Wash.App. 362, 945 P.2d 238, 242 (1997) (The Federal mandate gives the prisoner and parent the right to rebut any presumed support amount all the way down to zero, by showing a lack of income with which to pay.). N.D.C.C. 50-09-02(16) and 50-09-03(5).
The guidelines are unconstitutional wherein they create an irrebuttable minimum payment due to imputation of income.

The judgment must be overturned.

[¶ 8] Under N.D.C.C. §§ 50-09-01(16), 50-09-02(16) and 50-09-03(5), the North Dakota Department of Human Services and county social service boards must administer their child support enforcement programs in conformity with Title IV-D of the Social Security Act, 42 U.S.C. § 651 et seq. Section 667(b)(2), 42 U.S.C., provides:

(2) There shall be a rebuttable presumption, in any judicial or administrative proceeding for the award of child support, that the amount of the award which would result from the application of such guidelines is the correct amount of child support to be awarded. A written finding or specific finding on the record that the application of the guidelines would be unjust or inappropriate in a particular case, as determined under criteria established by the State, shall be sufficient to rebut the presumption in that case.

[¶ 9] The court in In re Marriage of Gilbert, 88 Wash.App. 362, 945 P.2d 238, 241-42 (1997), said Washington’s mandatory minimum child support obligation of $25 per month conflicts on its face with 42 U.S.C. § 667(b)(2)’s requirement of a re-buttable presumption. The court remanded for further proceedings and ordered that “courts in Washington are required by the Supremacy Clause to treat the mandatory presumption contained in RCW 26.19.065(2) and related statutes as a re-buttable rather than a mandatory presumption.” Gilbert, at 244. See also Rose ex rel. Clancy v. Moody, 83 N.Y.2d 65, 607 N.Y.S.2d 906, 629 N.E.2d 378, 380 (1993) (“By establishing an irrebuttable minimum of $25 ... the State treads on the Federal mandate which gives a noncustodial parent the right to rebut any presumed support amount, all the way down to zero, by showing inability to pay.”).

[¶ 10] We need not address the validity or the effect of Gilbert, as Hernandez’s premise that the North Dakota child support guidelines create an irrebuttable minimum payment is wrong. Section 14-09-09.7(3), N.D.C.C., specifically provides that “[t]here is a rebuttable presumption that the amount of child support that would result from the application of the child support guidelines is the correct amount of child support.” Section 75-02-04.1-13, N.D. Admin. Code, provides that “[t]he child support guideline schedule amount is rebuttedly [sic] presumed to be the correct amount of child support.” Section 75-02-04.1-09, N.D. Admin. Code, provides “[t]he child support amount provided for under this chapter, except for subsection 2, is presumed to be the correct amount of child support,” and provides criteria for rebuttal.

[¶ 11] “A party against whom a presumption is directed has the burden of proving that the nonexistence of the presumed fact is more probable than its existence.” N.D.R.Ev. 301(a). This case was submitted to the trial court on briefs. Hernandez’s affidavit in response to the motion to amend the amended judgment contained nothing about his ability to pay child support or to rebut the presumptively-correct amount calculated by the Child Support Unit. Hernandez did not provide the court with any evidence to rebut the presumption that the guideline amount was the correct amount of child support by showing “that the application of the guidelines would be unjust or inappropriate ... as determined under criteria established by the State.” 42 U.S.C. § 667(b)(2). Hernandez did not meet his burden to overcome the presumption that the child support guideline amount was the correct amount of child support.

[¶ 12] We conclude that the rest of the issues raised by Hernandez are without merit.

[¶ 13] The corrected amended judgment is affirmed.

[¶ 14] GERALD W. VANDE WALLE, C.J., and MARY MUEHLEN MARING, JJ., concur.

We concur in the result. DALE V. SANDSTROM and CAROL RONNING KAPSNER, JJ.


author: VANDE WALLE, Chief Justice.

text:
    2004 ND 164
    Rachel M. DIETZ, Plaintiff and Appellee, v. Robert A. KAUTZMAN, Paul Kautzman and Kautzman Millwright, Inc., Defendants and Appellants, George A. Wyum, Kautzman Family Trust, Valarie Torgerson, and B. & G. Enterprises, L.L.C., Defendants, Jonathan T. Garaas, Appellant.
    No. 20030362.
    Supreme Court of North Dakota.
    Aug. 31, 2004.
    Rehearing Denied Oct. 14, 2004.

      Steven A. Johnson (on brief), Yogel Law Firm, Fargo, for plaintiff and appellee.
    Jonathan T. Garaas (argued), Garaas Law Firm, Fargo, for defendants and appellants.
   VANDE WALLE, Chief Justice.

[¶ 1] Robert A. Kautzman, Paul Kautz-man, Kautzman Millwright, Inc., and their attorney, Jonathan T. Garaas, appealed from an October 13, 2003 judgment holding them jointly and severally liable for $1,000 in attorney fees and costs assessed as a sanction for failure to comply with the discovery rules. They also appealed from an underlying May 9, 2003 order compelling discovery, a July 18, 2003 second order compelling discovery and ordering sanctions, and an October 8, 2003 order for judgment and contempt ordering payment of an additional $250 in sanctions. We conclude we have jurisdiction over the appeal and the district court did not abuse its discretion in imposing the sanctions. We affirm.

I

[¶ 2] This case arises from litigation related to Rachel M. Dietz’s 1995 divorce action against Robert Kautzman. The divorce action itself has spawned seven appeals to this Court. See Dietz v. Kautzman, 2004 ND 119, 681 N.W.2d 437; Kautzman v. Kautzman, 2003 ND 140, 668 N.W.2d 59; Kautzman v. Kautzman, 2002 ND 118, 647 N.W.2d 684; Kautzman v. Kautzman, 2000 ND 190, 618 N.W.2d 500; Kautzman v. Kautzman, 2000 ND 116, 611 N.W.2d 883 (two appeals), and Kautzman v. Kautzman, 1998 ND 192, 585 N.W.2d 561. In February 2002, Dietz sued the Kautzmans and Kautzman Millwright, Inc., in state district court alleging they had fraudulently and deceitfully transferred property to avoid Robert’s property distribution and spousal support obligations imposed by the divorce decree and seeking to avoid those transfers. The defendants unsuccessfully attempted to remove the case to federal district court.

[¶ 3] After successfully moving to add additional defendants, Dietz served interrogatories and a demand for production of documents on the defendants in January 2003. In March 2003, Dietz filed a motion to compel discovery, alleging the defendants’ responses were inadequate and seeking attorney fees incurred in bringing the motion. On May 9, 2003, the district court granted the motion to compel, but refused to assess costs or attorney fees “at this time.” Still unsatisfied with the supplemental responses, Dietz moved on June 5, 2003 for sanctions against the Kautzman defendants and an order requiring the defendants and their attorneys to pay the attorney fees she incurred in bringing the motion. On July 18, 2003, the district court issued a second order compelling discovery and ordered sanctions. In addition to requiring all answers to interrogatories and requests for production of documents be provided within 10 days of service of the order, the court ruled:

The Defendants Robert A. Kautzman, Paul Kautzman, and Kautzman Millwright, Inc. are in contempt of the Court’s previous Order Compelling Discovery on this matter. Costs and attorney’s fees shall be assessed at this time in favor of Plaintiff and against Defendants Robert A. Kautzman, Paul Kautz-man, Kautzman Millwright, and their attorney Jonathan T. Garaas, jointly and severally, in the amount of $1,000. Harsher sanctions will be considered if this matter comes before the Court again and it is shown that Defendants have not complied with this Order.

[¶ 4] Dietz did not receive the $1,000 in costs and attorney fees ordered in August 2003. Dietz moved under N.D.R.Civ.P. 37 that judgment be entered against the Kautzman defendants and Garaas for $1,000, sought an order holding them in contempt until the money was paid, and requested that the court issue a bench warrant. The district court found the Kautzman defendants and Garaas “in contempt based on their failure to pay the Plaintiff $1,000 pursuant to this Court’s order dated July 18, 2003,” and ordered them to pay an additional $250 in legal fees incurred by Dietz “within three days of the date of this order.” The court did not issue a bench warrant and Garaas paid the $250. On October 13, 2003, a judgment was entered holding the Kautzman defendants and Garaas jointly liable to Dietz for “$1,000 representing attorney’s fees and costs assessed by the Court in favor of the Plaintiff.” This appeal followed.

II

[¶ 5] Dietz argues these orders compelling discovery are not appealable.

[¶ 6] This Court must have jurisdiction before we can consider the merits of an appeal. Kostrzewski v. Frisinger, 2004 ND 108, ¶ 8, 680 N.W.2d 271. In Gast Constr. Co., Inc. v. Brighton P’ship, 422 N.W.2d 389, 390 (N.D.1988) (citations omitted), this Court set forth the two-part test for determining whether jurisdiction over an appeal exists: .

First, the order appealed from must meet one of the statutory criteria of appealability set forth in NDCC § 28-27-02. If it does not, our inquiry need go no further and the appeal must be dismissed. If it does, then Rule 54(b), NDRCivP, must be complied with. If it is not, we are without jurisdiction.

[¶ 7] Orders compelling discovery are not appealable. See, e.g., Polum v. North Dakota Dist. Court, 450 N.W.2d 761, 763 (N.D.1990); Northwest Airlines, Inc. v. State Bd. of Equalization, 244 N.W.2d 708, 710 (N.D.1976). This Court has also held that “[a]n order awarding attorney’s fees and costs which relates to pretrial discovery procedures is interlocutory in nature and is not appealable.” State ex rel. Olson v. Nelson, 222 N.W.2d 383, 385 Syll.2 (N.D.1974).

[¶ 8] In Nelson, the State refused to answer two interrogatories, prompting the defendant to petition the district court for an order compelling answers to the interrogatories and assessing attorney fees and costs against the State. The court granted the motion and ordered the State to pay $100 in attorney fees and costs “ ‘on or before April 10, 1974.’ ” Nelson, 222 N.W.2d at 385. The State complied with the order compelling answers, but on April 15, 1974, filed a notice of appeal from the part of the order assessing the $100 in attorney fees and costs. The State contended that “although the order is partially interlocutory the assessment of attorney’s fees and costs in a sum certain, to be paid by a definite date, is a final order involving a substantial legal right and, thus, is ap-pealable under § 28-27-02(5), N.D.C.C.” Nelson, 222 N.W.2d at 386. This Court rejected the argument:

[I]t is generally held that an order of a trial court rendering judgment for costs alone, but not adjudicating the case proper, is not appealable. Free v. Chandler, 155 Colo. 128, 393 P.2d 9 (1964); 54 A.L.R.2d 927; 4 Am.Jur.2d, Appeal and Error § 128. Since the State is appealing only from that portion of the order awarding attorney’s fees and costs, the State has no basis for its argument that the order is appealable.
We hold that the trial court’s order assessing attorney’s fees and costs against the State is not an appealable order.

Id.

[¶ 9] Numerous jurisdictions follow this rule. See, e.g., Estate of Drayton v. Nelson, 53 F.3d 165, 167 (7th Cir.1994) (stating “an award of attorney’s fees in a case that has not been completed is merely an interim award of fees, and an interim award of fees is interlocutory and nonap-pealable unless the award is made in circumstances in which the party against whom the award is made will not be able to get his money back if he prevails at the end of the case and the award is vacated then”); M.A. Mortenson Co. v. United States, 877 F.2d 50, 52 (Fed.Cir.1989) (holding order imposing a monetary sanction against the government for discovery abuse is neither a final appealable order nor an appealable interlocutory order under federal law and “the immediate payment by the government cannot be characterized as rendering the sanction order effectively unreviewable”); State Farm Fire and Cas. Co. v. Bellino, 976 P.2d 342, 344 (Colo.App.1998) (reasoning “[allowing appeals from sanction orders before a judgment has been entered on the merits would discourage the trial court’s use of an important disciplinary tool and could be abused by parties wishing to delay the judicial process”); Gourmet Delights, Inc. v. Edgewater Country Club, Inc., 185 Ga. App. 660, 365 S.E.2d 514, 515 (1988) (holding a direct appeal from an order striking defendant’s answers for failure to comply with discovery, entering judgment for plaintiff, reserving the issue of damages for trial and awarding plaintiff attorney fees in connection with its motion for discovery sanctions was not appealable because “to be appealable, a judgment must be final, i.e., the case must no longer be pending in the trial court”); Matter of Hornsby and Landry, 532 So.2d 559, 560 (La.App.1988) (holding a judgment compelling discovery and fining attorney $500 in penalties plus all costs for his failure to obey previous court orders was an unap-pealable interlocutory judgment even though the opposing party had attached property belonging to the sanctioned party to seek satisfaction of the judgment); Kennedy v. Chalfin, 38 Ohio St.2d 85, 310 N.E.2d 233, 235 (Ohio 1974) (holding a sanction order arising out of discovery procedures is not an appealable final order).

[¶ 10] But, this case is distinguishable from State ex rel. Olson v. Nelson, because the State in Nelson, and the sanctioned parties in the cases cited above, were not found guilty of contempt. The October 8, 2003 order for judgment and contempt resulting in the October 13, 2003 judgment specifically found the appellants “in contempt based on their failure to pay the Plaintiff $1,000 pursuant to this Court’s order dated July 18, 2003” and ordered that they pay Dietz “an.additional $250 within three days of the date of this Order.” See N.D.R.Civ.P. 37(b)(2)(D) (allowing as a discovery sanction “an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination”). Under N.D.C.C. § 27-10-01.3(3), “[a]n appeal may be taken to the supreme court from any order or judgment finding a person guilty of contempt. An order or judgment finding a person guilty of contempt is a final order or judgment for purposes of appeal.” Therefore, the October 8, 2003 order for judgment and contempt and the October 13, 2003 judgment are appealable. Moreover, the earlier interlocutory orders compelling discovery are also properly before us for review because nonappealable interlocutory orders or judgments are reviewable in an appeal from- a final appealable order or judgment. See, e.g., Security State Bank v. Orvik, 2001 ND 197, ¶6, 636 N.W.2d 664. We conclude we have jurisdiction over this appeal.

Ill

[¶ 11] The appellants raise several issues on appeal. A major contention is that the May 9, 2003 order compelling discovery and the,July 18, 2003 order for sanctions were too vague to support a finding of contempt for violation of those orders. The appellants also argue the district court failed to find that the orders were willfully or intentionally disobeyed.

[¶ 12] The appellants argue the district court’s use of the term “assess” in the July 18, 2003 order rendered the order vague because the term is not synonymous with an order to pay a debt immediately. According to the appellants, “[t]here is nothing within the [district court’s July 18, 2003 order] that would lead any of the four Appellants to believe that they were ordered to immediately pay [Dietz] $1,000.00 as costs and attorney fees.” The term “assessment” has been defined as the “[i]mposition of something, such as a tax or fíne, according to an established rate; the tax or fine so imposed.” Black’s Law Dictionary 111 (7th ed.1999). The term “assess” has been defined as “[t]o charge (a person or property) with a tax, fine, or other special payment.” The American Heritage Dictionary 134 (2d Coll, ed.1985). The district court “assessed” the costs and attorney fees in the July 18, 2003 order, and punctuated the immediacy of payment by adding “at this time.” A reasonable person would interpret the phrase “assess at this time” to mean immediate payment. The appellants’ argument is so specious that their failure to immediately pay the assessment of costs and attorney fees can be viewed as nothing other than willful and intentional disobedience of the court’s order. The order is not vague and we are satisfied the appellants’ actions were willful and intentional. We deem the other issues raised by the appellants to be without merit.

[¶ 13] Under N.D.R.Civ.P. 37(b)(2), a district court has a broad spectrum of available sanctions for discovery violations, and any sanctions imposed will not be set aside on appeal unless the district court abused its discretion. Richard B. Baer, P.C. v. Bauch, 1999 ND 177, ¶ 10, 599 N.W.2d 306. We conclude the district court did not abuse its discretion in imposing the sanctions in this case.

IV

[¶ 14] We affirm and award double costs to Dietz under N.D.R.App.P. 38 and 39.

[¶ 15] WILLIAM F. HODNY, S.J., DALE V. SANDSTROM, WILLIAM A. NEUMANN, and MARY MUEHLEN MARING, JJ., concur.

[¶ 16] The Honorable WILLIAM F. HODNY, Surrogate Judge, sitting in place of KAPSNER, J., disqualified.


text:
    2004 ND 168
    STATE of North Dakota, Plaintiff and Appellee, v. Terry Myron SPIDAHL, Defendant and Appellant.
    Nos. 20030348, 20030349, 20030350, 20030351, 20030352.
    Supreme Court of North Dakota.
    Aug. 31, 2004.

      Lonnie Olson (on brief), State’s Attorney, Devils Lake, for plaintiff and appellee.
    Steven M. Light (on brief), Larivee & Light, Grand Forks, for defendant and appellant.
   VANDE WALLE, Chief Justice.

[¶ 1] Terry Spidahl appealed from judgments of conviction for possession of a controlled substance and possession of drug paraphernalia. We affirm, concluding the trial court did not err in denying Spidahl’s motion to suppress evidence.

I

[¶ 2] On March 4, 2003, at approximately 10:30 p.m., Officer Ertelt of the Devils Lake Police Department was patrolling in downtown Devils Lake. He noticed a vehicle, which had been reported stolen several weeks earlier, parked in front of a bar. He ran a check on the VIN number and confirmed that the vehicle had been reported stolen.

[¶ 3] When two men got in the vehicle and began driving away, Officer Ertelt activated his overhead lights and stopped the vehicle. While another officer questioned the driver, Officer Ertelt asked Spi-dahl, who had been in the passenger seat, to get out of the vehicle. Officer Ertelt then patted down Spidahl, handcuffed him, and placed him under arrest for possession of a stolen vehicle. A subsequent search of Spidahl produced three baggies with marijuana residue, a pocket knife, rolling papers, and two vials containing a white substance, a syringe, tin foil, a pen tube, and a broken spoon. A search of the vehicle uncovered two digital scales and a tin tray wrapped in a flannel shirt on the passenger seat, and two hand scales located in a compartment in the passenger-side door of the vehicle.

[¶ 4] As a result of the items found in the stolen vehicle and on Spidahl’s person, a search warrant was issued for Spidahl’s home. Officers found methamphetamine paraphernalia and marijuana in Spidahl’s home.

[¶ 5] Spidahl was charged with possession of controlled substances and possession of drug paraphernalia. Spidahl moved to suppress the evidence obtained from the search of his person, and a hearing was held. The trial court denied the motion, concluding that Spidahl had properly been arrested for possession of a stolen vehicle and that the search of his person was a valid search incident to arrest. Spidahl entered conditional pleas of guilty reserving his right to appeal.

II

[¶ 6] The dispositive issue on appeal is whether Officer Ertelt had probable cause to arrest Spidahl for unauthorized use of a motor vehicle.

[¶ 7] Officer Ertelt testified that, prior to the search of Spidahl’s person which produced the drug-related items, he had handcuffed Spidahl and arrested him for possession of a stolen vehicle. The relevant statute is N.D.C.C. § 12.1-23-06(1):

A person is guilty of an offense if, knowing that he does not have the consent of the owner, he takes, operates, or exercises control over an automobile, train, aircraft, motorcycle, motorboat, or other motor-propelled vehicle of another.

[¶ 8] Spidahl argues our decision in In re J.D., 494 N.W.2d 160 (N.D.1992), establishes that the officer lacked probable cause in this case. In J.D., the juvenile court determined the juvenile had committed the delinquent act of unauthorized use of a vehicle under N.D.C.C. § 12.1-23-06(1). We reversed the juvenile court’s order, concluding there was insufficient evidence to prove beyond a reasonable doubt that the juvenile had committed the delinquent act. Because the juvenile had not been driving the stolen vehicle, the case turned on the determination whether he had exercised control over the vehicle in violation of the statute. We concluded that the statutory language “exercises control” required that the juvenile had exercised some degree of authority, direction, or command over the vehicle. J.D., at 164.

[¶ 9] Our decision in J.D. is not, however, dispositive of this case. In J.D., we were determining whether there was evidence to prove beyond a reasonable doubt that the juvenile had exercised control over a vehicle. The degree of evidence needed to create probable cause to arrest, as applied by an officer in the field, is far less than beyond a reasonable doubt. We decline to hold that, as a matter of law, a police officer lacks probable cause to believe that a passenger in a stolen vehicle exercised authority, direction, or command over the vehicle.

[¶ 10] We recently outlined our standard for reviewing a determination that there was probable cause to arrest:

When determining whether an officer had probable cause to arrest, we review the facts and circumstances known by the officer and apply a totality-of-the-circumstances standard:
The term “reasonable grounds” is synonymous with the term “probable cause.” See Henderson v. Director, North Dakota Dep’t of Transp., 2002 ND 44, 18, 640 N.W.2d 714. “Probable cause to arrest exists when the facts and circumstances within police officers’ knowledge and of which they have reasonably trustworthy information are sufficient to warrant a person of reasonable caution in believing an offense has been or is being committed.” Id. (quoting Fargo v. Egeberg, 2000 ND 159, ¶ 8, 615 N.W.2d 542). When making a probable cause determination, we consider the totality of the circumstances. Whether probable cause exists is a question of law, fully reviewable on appeal.

Sonsthagen v. Sprynczynatyk, 2003 ND 90, ¶ 17, 663 N.W.2d 161 (citations omitted). To establish probable cause, the officer does not have to possess knowledge of facts sufficient to establish guilt; all that is necessary is knowledge that would furnish a prudent person with reasonable grounds for believing a violation has occurred. State v. Waltz, 2003 ND 197, ¶ 10, 672 N.W.2d 457; Obrigewitch v. Director, N.D. Dep’t of Transp., 2002 ND 177, ¶ 10, 653 N.W.2d 73. Even though conduct may have an innocent explanation, “probable cause is the sum total of layers of information and the synthesis of what the police have heard, what they know, and what they observed as trained officers.” Waltz, at ¶ 13 (quoting State v. Ringquist, 433 N.W.2d 207, 215 (N.D.1988)). State v. Berger, 2004 ND 151, ¶ 11, 683 N.W.2d 897; see also Baer v. Director, North Dakota Dep’t of Transp., 1997 ND 222, ¶ 11, 571 N.W.2d 829.

[¶ 11] Probable cause does not require that commission of the offense be established with absolute certainty, or proved beyond a reasonable doubt. Henderson v. Director, North Dakota Dep’t of Transp., 2002 ND 44, ¶ 8, 640 N.W.2d 714; City of Fargo v. Egeberg, 2000 ND 159, ¶10, 615 N.W.2d 542. Probable cause may, in fact, be less than a preponderance of the evidence. In re A.E., 1997 ND 9, ¶27, 559 N.W.2d 215 (Sandstrom, J., concurring); In re M.D.N., 493 N.W.2d 680, 690 (N.D.1992) (Levine, J., concurring in the result). Probable cause to arrest exists when “the incremental facts and circumstances within the officer’s knowledge and of which she had reasonable trustworthy information were sufficient to warrant a person of reasonable caution in believing” an offense has been committed. Egeberg, at ¶ 10.

[¶ 12] In this case, the officer observed a vehicle which had been reported stolen several weeks earlier. It was late at night, and the vehicle was parked in front of a bar. Two individuals entered the vehicle and began driving away. While the facts and circumstances known to the officer may not, in light of our opinion in J.D., have been sufficient to establish beyond a reasonable doubt that Spidahl had committed the crime of unauthorized use of a motor vehicle and supported a conviction, they were sufficient, when viewed in totality, to “furnish a prudent person with reasonable grounds for believing a violation has occurred.” Berger, 2004 ND 151, ¶ 11, 683 N.W.2d 897.

[¶ 13] We conclude the trial court did not err in determining Officer Ertelt had probable cause to arrest Spidahl and the subsequent search was a valid search incident to arrest. The court therefore did not err in denying the motion to suppress.

Ill

[¶ 14] We have considered the remaining issues and arguments raised by the parties and find they are either without merit or are unnecessary to our decision. The judgments of conviction are affirmed.

[¶ 15] DALE V. SANDSTROM, WILLIAM A. NEUMANN, MARY MUEHLEN MARING and CAROL RONNING KAPSNER, JJ., concur.