DWI Appeal - Minnesota Refusal Reversed Due to Erroneous Instruction on Probable Cause

In State of Minnesota v. Koppi, --- N.W.2d ----, 2011 WL 2200762 (Minn.) the Supreme Court of Minnesota reversed a DWI Refusal, holding that the jury was improperly instructed on probable cause, since the instruction was based on the arresting officer's subjective beliefs rather than a an objective person's reasonable belief. The district court instructed the jury that “[p]robable 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.”

The high court found that the instruction contained three flaws:

"First, it does not require the officer to recite actual observations and circumstances supporting a finding of probable cause. Second, it fails to include the requirement that the jury evaluate the totality of the circumstances from the viewpoint of a reasonable police officer. Third, the instruction erroneously requires that an officer believe a driver “was more likely than not” driving while impaired, a standard that is at odds with case law on probable cause requiring only an “honest and strong suspicion” of criminal activity."

The first flaw is that the jury instruction fails to require an officer to articulate the specific observations and circumstances that support a finding of probable cause. Under the plain language of the jury instruction, the probable cause element of test refusal is satisfied if the officer can state the reason for his or her belief that the suspect was driving while impaired. If an officer were to testify that he or she had a gut feeling that the defendant was driving while impaired, the jury instruction would arguably be satisfied because the officer was able to “explain the reason” why the officer believed probable cause existed. Cf. State v. Hardy, 577 N.W.2d 212, 216 (Minn.1998) (“Mere suspicion is insufficient to establish probable cause.”). This aspect of the instruction is erroneous because the law requires the fact-finder to evaluate probable cause based on the totality of the facts and circumstances; it is not sufficient that the officer can simply “explain the reason” why he or she believed there was probable cause to request a chemical test from a suspect.

The second flaw is that CRIMJIG 29.28 does not require the jury to determine whether a reasonable police officer would find probable cause that Koppi was driving while impaired. The instruction permitted the jury to take Officer Hunter at his word that he believed Koppi was driving while impaired. As stated above, however, what matters is whether “there was objective probable cause, not whether the officers subjectively felt that they had probable cause.” Speak, 339 N.W.2d at 745. A properly instructed jury must consider whether the totality of the facts and circumstances would lead a reasonable officer to entertain an honest and strong suspicion that Koppi was “driving, operating, or in physical control of a motor vehicle” while impaired. See Minn.Stat. § 169A.51, subd. 1(b).

The third flaw is that we have rejected the standard of probable cause used in the jury instruction—that it is more likely than not that the suspect has committed a crime. See Harris, 589 N.W.2d at 791. Rather, probable cause requires that, under the totality of the circumstances, “a person of ordinary care and prudence would entertain an honest and strong suspicion that a crime has been committed.” State, Lake Minnetonka Conservation Dist. v. Horner, 617 N.W.2d 789, 795 (Minn.2000) (citation omitted) (internal quotation marks omitted). The “honest and strong suspicion” standard requires more than mere suspicion, but less than the evidence required for a conviction. See id.; see also Illinois v. Gates, 462 U.S. 213, 243 n. 13, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (“[P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.”). The “more likely than not” standard was an incorrect statement of the law because probable cause “is incapable of precise definition or quantification into percentages [as] it deals with probabilities and depends on the totality of the circumstances.” Maryland v. Pringle, 540 U.S. 366, 371, 124 S.Ct. 795, 157 L.Ed.2d 769 (2003). The district court therefore erred by giving the jury an erroneous standard by which to evaluate the totality of the circumstances surrounding Koppi's arrest.

Continuing, the court stated:

“[T]he reasonableness of the officer's actions is an objective inquiry,” even if reasonableness is evaluated in light of an officer's training and experience. State v. Hardy, 577 N.W.2d 212, 216 (Minn.1998) (emphasis added) (citation omitted). The actual, subjective beliefs of the officer are not the focus in evaluating reasonableness. See State v. Speak, 339 N.W.2d 741, 745 (Minn.1983) (holding that relevant inquiry for a probable cause analysis is “whether there was objective probable cause, not whether the officers subjectively felt that they had probable cause”). Rather, the probable cause standard asks whether the totality of the facts and circumstances known would lead a reasonable officer “to entertain an honest and strong suspicion” that the suspect has committed a crime. State v. Harris, 589 N.W.2d 782, 791 (Minn.1999) (quoting State v. Carlson, 267 N.W.2d 170, 173 (Minn.1978)). Answering that question is “an objective, not subjective, inquiry.”

The jury instruction was the approved instruction from 10A Minn. Dist. Judges Ass'n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 29.28 (5th ed. Supp.2009). The supreme court concluded:

"For the foregoing reasons, we hold that the district court abused its discretion in instructing the jury on probable cause in accordance with the language of CRIMJIG 29.28. Because we cannot say that the instructional error was harmless beyond a reasonable doubt, we reverse Koppi's conviction for test refusal and remand for further proceedings consistent with this opinion.

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