An erroneous factual assumption has unfortunately made its way into this case, namely, that Mr. Hiibel’s teenage daughter was the passenger and that Mr. Hiibel was driving. The trier of fact made no such finding, nor does the evidence support such a finding. See, e.g., Defendant’s Exhibit A (6 minute videotape of incident), Justice Ct. Tr. Trans. Vol. II, Feb. 13, 2001, at 21; and Trooper Merschel’s testimony that Mr. Hiibel indicated he was not driving, Justice Ct. Tr. Trans. Vol. I, Nov. 7, 2000, at 11. The Justice of the Peace who was the factfinder in this case found only that the female was in the cab of the truck, not that she was the passenger. J.A. at 4. On appeal before the district court the focus was on the officer’s investigation of an alleged domestic battery, not a drunk driving situation.
May I reiterate: An erroneous factual assumption.