State v. Koppi, No. A09-136.

• Decision Date: 09 March 2010
• Docket Number: No. A09-136.
• Parties: STATE of Minnesota, Respondent, v. John Allen KOPPI, Appellant.
• Court: Minnesota Court of Appeals

779 N.W.2d 562

STATE of Minnesota, Respondent, v. John Allen KOPPI, Appellant.

No. A09-136.

Court of Appeals of Minnesota.

March 9, 2010.

Lori Swanson, Attorney General, St. Paul, MN; and John J. Thames, Corcoran City Attorney, Carson, Clelland & Schreder, Minneapolis, MN, for respondent.

Mark D. Kelly, St. Paul, MN, for appellant.

Considered and decided by CONNOLLY, Presiding Judge; SHUMAKER, Judge; and WORKE, Judge.

OPINION

SHUMAKER, Judge.

In this appeal from his conviction of second-degree refusal to submit to chemical testing, appellant argues that the district court misstated the law in its jury instructions on test refusal and that the district court violated his right to due process of law when it concluded that he had a reasonable amount of time to consult an attorney. Although we agree that the district court misstated the law, the error was harmless. And the district court did not err in deciding that the appellant had a reasonable amount of time to consult an attorney. Therefore, we affirm.

FACTS

A jury found appellant John Allen Koppi guilty of refusing to submit to chemical testing after he was arrested for driving while impaired. Koppi asks us to determine whether the district court erred in its jury instruction regarding the definition of probable cause—an element of the crime— and whether it erred in instructing the jury that, as a matter of law, Koppi was given a reasonable time to consult with a lawyer.

A police officer stopped Koppi as he drove his pickup truck at about 12:40 a.m. on July 4, 2008, because Koppi was speeding and appeared to be accelerating away from the squad car. When the officer approached the truck, he noticed that Koppi's eyes were "a red, glossy, bloodshot color," and there was a "slight odor of an alcoholic beverage" coming from him. The officer asked Koppi to get out of the truck and perform field sobriety tests. Koppi refused to perform the tests, and the officer arrested him and brought him to the police station.

At 1:04 a.m., the officer read to Koppi the implied-consent advisory in a booking room that was equipped with a video camera. Koppi acknowledged that he understood the advisory and requested an opportunity to contact a lawyer. At about 1:05 a.m., the officer gave Koppi several telephone books and the use of a telephone. Koppi said that he would need his reading glasses, and the officer arranged to have them retrieved from Koppi's truck and brought to him. A videotape in evidence showed that, as he waited for the delivery of his reading glasses, Koppi read text messages on his cell phone without eyeglasses.

Between 1:40 and 1:49 a.m., Koppi made two telephone calls to attorneys and one to his wife. He did not succeed in reaching a lawyer, and the videotape showed Koppi paging through the phone books and looking around the room. The district court characterized Koppi's conduct as "aimlessly" paging through the books and not "making any serious effort to review any of the attorney ads or to contact an attorney." When the officer asked Koppi why he had not tried to contact other attorneys, he replied: "I haven't found one that I liked."

At 2:05 a.m., the officer told Koppi that he had been given a reasonable time to contact a lawyer and asked Koppi if he would submit to breath testing. Koppi did not respond to the question, instead stating that he was still looking for a lawyer. The officer asked the question at least five times, and each time Koppi requested more time to try to contact a lawyer. Koppi insisted that the law allowed him two hours to contact a lawyer and decide whether to submit to testing. The officer then cited Koppi for test refusal.

At the close of the evidence in Koppi's trial, he requested that the court not give the CRIMJIG 29.28 instruction because, he argued, it impermissibly provided a subjective, rather than an objective, definition of probable cause. The district court declined the request and gave the full instruction. The court also instructed the jury that, as a matter of law, Koppi had been given a reasonable time to consult with a lawyer before deciding whether to submit to testing. Koppi objected to this instruction.

This appeal followed.

ISSUES

1. Did the district court err in its instruction to the jury on refusal to submit to testing when it defined the element of "probable cause" as provided by CRIMJIG 29.28, the current pattern jury instruction on test refusal in an impaired-driving case?

2. Did the district court err by instructing the jury that, as a matter of law, it had determined that the appellant had been given a reasonable amount of time to contact an attorney prior to deciding whether to submit to a breath test?

ANALYSIS

Jury Instruction on Probable Cause

The district court is allowed "considerable latitude in selecting the language of jury instructions." State v. Baird, 654 N.W.2d 105, 113 (Minn.2002). This court reviews jury instructions "in their entirety to determine whether they fairly and adequately explain the law of the case." State v. Peterson, 673 N.W.2d 482, 486 (Minn.2004). "An instruction is in error if it materially misstates the law." State v. Kuhnau, 622 N.W.2d 552, 556 (Minn.2001). The district court's decision as to what jury instructions to give is reviewed for abuse of discretion. State v. Pendleton, 759 N.W.2d 900, 907 (Minn. 2009). Erroneous jury instructions are reviewed under a harmless-error standard. State v. Jackson, 746 N.W.2d 894, 898 (Minn.2008). In completing a "harmless error impact" analysis, the inquiry is not whether the jury could have convicted the defendant without the error, but rather, what effect the error had on the jury's verdict, "and more specifically, whether the jury's verdict is `surely unattributable' to the error." State v. King, 622 N.W.2d 800, 811 (Minn.2001) (quoting State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997)).

A person who drives a motor vehicle in Minnesota is required to submit to chemical testing for the presence of alcohol "when an officer has probable cause to believe the person was driving . . ." while impaired, and when other circumstances, not at issue here, exist. Minn.Stat. § 169A.51, subd. 1(b) (2008). A person who refuses to submit to properly requested testing is guilty of a crime. Minn.Stat. § 169A.20, subd. 2 (2008).

The elements of the crime of test refusal are set forth in CRIMJIG 29.28, the current pattern jury instruction. That instruction defines probable cause as an element of the crime as follows: "`Probable cause' means that the officer can explain the reason the officer believes it was more likely than not that the defendant drove, operated or was in physical control of a motor vehicle while under the influence of alcohol." 10A Minnesota Practice, CRIMJIG 29.28.

Koppi contends that the pattern jury instruction misstates the law of probable cause because it creates a subjective, rather than the requisite objective, standard for determining probable cause. He notes that the pattern instruction was amended in 2008 to provide that the probable-cause element is satisfied if the jury can find beyond a reasonable doubt that "the officer can explain the reason the officer believes" it was more likely than not that the defendant drove while impaired, whereas the prior instruction did not contain the quoted language.

The existence of probable cause depends on an objective inquiry and a review of the totality of the circumstances. Mell v. Comm'r of Pub. Safety, 757 N.W.2d 702, 708 (Minn.App.2008). Koppi cites Mell for the proposition that probable cause exists if the objective facts are such that a person of ordinary care and prudence "would entertain an honest and strong suspicion" that the crime of driving while impaired has been committed. Mell did not qualify the nature and degree of suspicion required to rise to the level of probable cause but rather stated that probable cause depends on whether a person of prudence or of reasonable caution "would believe" that a crime had been committed. Thus, Mell focuses the analysis of probable cause on the belief of the person purporting to assess the facts, who in Mell, and here, was a law-enforcement officer. Additionally, if a law-enforcement officer is the person purporting to determine the existence of probable cause, his training and occupational experience are part of the "totality of circumstances" that must be reviewed to assess the legal accuracy of his determination. See State v. Carlson, 267 N.W.2d 170, 174 (Minn.1978) (in determining probable cause the court must "view the circumstances in light of the whole of the arresting officer's police experience as of the time of the arrest."); State v. Olson, 342 N.W.2d 638, 640 (Minn. App.1984) ("Probable cause is not based upon the `reasonable man' concept, but upon the situation of the officer and the particular situation in which he finds himself, conditioned by his observations, information, training and experience." (quotation omitted)).

It is clear that an officer who claims to have performed an act upon his belief that there was probable cause for concluding that a crime had been committed is subject to the test of reasonableness of that belief; and reasonableness is assessed by an investigation of objective facts. See State v. Sorenson, 270 Minn. 186, 196, 134 N.W.2d 115, 123 (1965) ("Whether an officer in the particular circumstances, conditioned by his observations and information, and guided by the whole of his police experience, reasonably could have believed that a crime had been committed by the person to be arrested."); see also State v. Driscoll, 427 N.W.2d 263, 265 (Minn.App.1988) ("Whether probable cause exists hinges on the officer's objective observations, not on his subjective belief as to probable cause.") (emphasis added) (citation omitted). The issue is whether an officer had objective probable cause, not whether an officer subjectively felt he had probable cause. Costillo v. Comm'r of...