State v. Richardson

372 N.W.2d 368 (1985)

STATE of Minnesota, Respondent,
v.
James Allen RICHARDSON, Appellant.

No. C5-84-1265.

Court of Appeals of Minnesota.

August 6, 1985.

Hubert H. Humphrey, III, Minn. Atty. Gen., Edward Starr, St. Paul City Atty. James Tures, Asst. City Atty., St. Paul, for respondent.

William E. Falvey, Chief Public Defender, Ellen Seesel, Asst. Public Defender, St. Paul, for appellant.

Considered and decided by POPOVICH, C.J., FOLEY and LESLIE, JJ., with oral argument waived.

SUMMARY OPINION

POPOVICH, Chief Judge.

FACTS

St. Paul Police Officer Francis Zaruba observed a car speeding and passing cars in the parking lane on University Avenue. Zaruba turned around and followed the car into a liquor store parking lot a few blocks away. He approached the driver and asked for his driver's license. Zaruba noted that the driver, identified as appellant, had a slight alcohol smell, slurred speech, bloodshot eyes and appeared to fumble with his wallet. Believing appellant to be under the influence, Zaruba conducted two field sobriety tests which appellant did not perform satisfactorily. He was placed under arrest and at the police station he was also video-taped. Following a court trial, he was convicted of gross misdemeanor DWI under Minn.Stat. § 169.121, subd. 3a (1984) for driving while under the influence within five years of a prior DWI conviction. This was Richardson's fifth DWI conviction. He appealed and we proceeded pursuant to Minn.R.Civ.App.P. 142.03, respondent failing to file a brief.

DECISION

1. The record and evidence amply support the conviction.

2. Richardson also challenges the constitutionality of the stop pursuant to Minn.R.Crim.P. 28.02, subd. 11. This challenge was made for the first time on appeal and was not raised in the trial court. We find no merit to this contention. Additionally, the trial courts should always have the opportunity to act on an issue. A challenge of this nature, made for the first time on appeal, will not be considered.

Affirmed.