DUI Law - Kansas Jury Improperly Instructed on DUI

In State of Kansas v. Stieben, --- P.3d ----, 2011 WL 3209875 (Kan.) the defendant went to jury trial for DUI. 28 minutes into deliberations, the jury sent a note to the judge:

‘Did Defendant cross the fog line before the officer turned around?’  

Contrary to the defendant's recollection and objection, the judge answered the question:

“THE COURT: That's my recollection. I have it written down. I'm going to write yes. And, with no more explanation than that." 

Trooper Hemel's actual testimony was: “The vehicle had also drifted toward the fog line when it was coming at me.” On cross-examination, he testified that when he first encountered Stieben he did not see any traffic violations and saw no conduct that would have led him to stop her. 

The Supreme Court of Kansas found that the response by the trial court constituted error in at least two ways. First, the court violated the express provisions of K.S.A. 22–3420(3). K.S.A. 22–3420(3) explicitly allows the court to have the testimony read or exhibited to the jury, and where the parties were in disagreement about the testimony, such a direct showing to the jury would have excused the court from relying on its notes and memory. 

Second, it was held that the trial court intruded on the province of the jury to act as the factfinder, interfering with Stieben's constitutional right to a trial by jury by not only answering the question, but by answering it incorrectly, possibly prejudicing Stieben's defense.

The Supreme Court distinguished the different functions a trial court must perform when there is a question of law and when there is a question of fact:

Where the jury is “obviously confused” on a point of law, the court has an obligation to provide further instruction, even if the original jury instruction would normally have been sufficient. The failure of the trial court to give the jury additional information was clearly prejudicial and denied the defendant a fair trial. See State v. Bandt, 219 Kan. 816, 823, 549 P.2d 936 (1976); see also State v. Dunnan, 223 Kan. 428, 433, 573 P.2d 1068 (1978) (trial court has duty to give jury guidance by answering questions “accurately”). We find that the statutory scheme similarly contemplates a clarifying answer when the jury is obviously confused on a point of fact, and K.S.A. 22–3420(3) provides a direct and uncomplicated mechanism for resolving a jury's confusion. 

"The second point of error relates to the respective functions of the trial court and the jury. The jury asked the trial court to resolve a question of fact, and the court complied with the jury's request. The court could have directed the jury instead to rely on its collective memory, or the court could have read the testimony back to the jury. The court elected, however, to inform the jury that Stieben crossed the fog line as the trooper approached her. 

"The Sixth Amendment to the United States Constitution provides: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury....” This right to a jury trial includes allowing the jury to decide the materiality of evidence supporting an element of the crime charged. State v. Brice, 276 Kan. 758, 767, 80 P.3d 1113 (2003) (quoting United States v. Gaudin, 515 U.S. 506, 522–23, 115 S.Ct. 2310, 132 L.Ed.2d 444 [1995] ). The prosecution not only bears the burden of proving all the elements of the offense charged, it must also persuade the jury beyond a reasonable doubt of the facts necessary to establish each of those elements. Sullivan v. Louisiana, 508 U.S. 275, 277–78, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). 

"An instruction that includes a factual determination made by the trial court “invades the province of the jury as the factfinder” and violates the defendant's rights to have the jury determine his or her guilt or innocence. Brice, 276 Kan. at 772, 80 P.3d 1113. 

"It is the role of the jury to determine the facts independent of the trial court and to apply the law to those facts in reaching its decision. A plea of not guilty places all issues in dispute, including even things most patently true. “ ‘ “Whatever probative force the government's proof possessed, the jury had the power to accept or reject it—or to find it insufficiently persuasive. The defendant had a correlative right to free and unhampered exercise by the jury of all its powers.” [Citation omitted.]’ ” Brice, 276 Kan. at 770–71, 80 P.3d 1113 (quoting United States v. Mentz, 840 F.2d 315, 320 [6th Cir.1988] ). 

"It is for the jury alone to determine the credibility of eyewitnesses. State v. Carter, 284 Kan. 312, 328, 160 P.3d 457 (2007). An expert witness may not testify about the weight or credibility of evidence because those matters belong strictly to the province of the jury. State v. Graham, 246 Kan. 78, 81, 785 P.2d 983 (1990). In the present case, the court itself went where an expert witness may not go: it did not just “testify” about the credibility of certain evidence, it used its judicial authority to make the finding of fact for the jury.

Concluding that the error was significant, the Supreme Court stated": "This usurpation of the jury's role was especially egregious because the court provided the jury with an answer contrary to the only evidence presented."

A new trial was thereafter granted.

Looking for a Top Kansas DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DWI Appeal - Texas Jury Instruction on Refusals Flawed

In Galinas v. State of Texas, Not Reported in S.W.3d, 2011 WL 2420858 (Tex.App.-El Paso), the defendant was stopped because he allegedly had a red light illuminating his rear license plate (the law requires white) and because he failed to signal while exiting a private driveway onto a public road. With regard to the light above the plate, the videotape of the stop showed that the light above the plate was actually white, as required by law. Trooper Marquez stated that at the time of the traffic stop, he believed Appellant's failure to signal out of the private driveway constituted a traffic violation. It was ultimately determined that the officer incorrectly believed that Texas law required the use of a signal while turning from a private driveway. He also stopped the vehicle because of a red license plate light. After the traffic stop, Marquez noticed that there was also a white light illuminating the license plate. At the time of the stop, he saw only the red light. A white light illuminating a license plate must be visible from at least fifty feet. With regard to the license plate light, he could not tell whether the light was “white”; he could only tell that it was “faint.” The trial court denied the motion to suppress.

In Texas, apparently the jury is also instructed to decide whether a stop was illegal and whether evidence should therefore be suppressed. The defendant on appeal complained that the trial court abused its discretion in failing to give the requested suppression instruction to the jury (which admittedly correctly stated Texas law):



"If you the jury find that Trooper Diego Marquez illegally stopped the defendant on February 16, 2007, or have any reasonable doubt thereof, you are instructed to exclude all evidence obtained by the trooper from and after the illegal stop from—during your deliberations."



Instead, the jury was wrongfully instructed to the opposite:



"...if you find from the evidence that on the occasion in question the Defendant, JAMES HENRY GELINAS, was driving his vehicle on a public road immediately preceding his stop and detention by the officer and you find from the evidence that his vehicle failed to comply with the Texas Transportation Code Provision, which requires a white light to illuminate the vehicle's license plate or you have a reasonable doubt thereof, then such stopping of the accused would be illegal and, if you find the facts so to be, or if you have a reasonable doubt thereof, you will disregard this testimony of Trooper Marquez relative to his stopping the defendant and his conclusions drawn as a result thereof, and you will not consider such evidence for any purpose whatsoever."



The State argued on appeal that, even though the jury instruction was wrong, the arguments of counsel corrected the defect. In rejecting that argument, the court wrote:



"The Hutch majority quickly rejected the contention that legal arguments could cure charge error:



The United States Supreme Court, when faced with the assertion that a prosecutor's argument on a presumption of innocence cures a jury charge deficient in that instruction, wrote ‘arguments of counsel cannot substitute for instructions by the court.’ [Citation deleted]. And, we have similarly noted that ‘jury argument is not a substitute for a proper jury charge.’


Id. at 173–74. The majority then recognized that because the application paragraph was so flawed as to charge the jury on the opposite of what the law actually provides and because the legality of the stop was a hotly contested issue, the error could not be cured by jury arguments. Id. at 174. Because the error vitally affected Hutch's defensive theory, the court reversed and remanded.

The right to a trial by jury in criminal matters is among those fundamental rights guaranteed by our Constitutions. In order to effectuate this valuable right, there is a minimal requirement that the instructions to the jury not be exactly opposite of what the law actually is."



Due to the error, the appeals court reversed and remanded for a new trial.


Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

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.

Looking for a Top DUI DWI Attorney? Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!

DUI Appeal - Kansas DUI Jury Wrongly Instructed - Hung Jury

In State of Kansas v. Torres, Slip Copy, 2011 WL 867602 (Table) (Kan.App.) the defendant proceeded to jury trial on his DUI and related charges. The challenged instruction to the jury was made after voir dire and before opening statements, where the judge gave the following Allen-type charge:

“Because this is an important case, if you should fail to reach a decision, the case is left open and undecided. Like ail cases, it must be decided. Another trial would be a heavy burden on both sides.

“There's no reason to believe that this case could be tried any better or more exhaustingly than it can at this time. There's no reason to believe any more evidence would be produced by either side, or also no reason to believe that, if the case were retried, it would be submitted to twelve people who are more intelligent, reasonable, or capable than you twelve, because any future jury is going to be selected in the same manner.”

Torres did not object to this statement. He was then convicted. On appeal, Torres contended that that it was improper and prejudicial to tell the jury: “Like all cases, it must be decided. Another trial would be a heavy burden on both sides.” The appeals court agreed that such a statement was improper:

Our courts have held that the statement “[l]ike all cases, it must be decided” is inaccurate because the case might not be retried and could be dismissed without prejudice and never decided. State v. Scott-Herring, 284 Kan. 172, 180-81, 159 P.3d 1028 (2007); State v. Turner, 34 Kan.App.2d 131, 134-35, 115 P.3d 776 (2005). Further, our Supreme Court has found the statement “ ‘[a]nother trial would be a burden on both sides' “ to be both misleading and inaccurate. State v. Salts, 288 Kan. 263, 265-66, 200 P.3d 464 (2009).

However, since Torres failed to timely object, the court then had to determine whether the instruction was clearly erroneous, i.e., "whether we are firmly convinced there is a real possibility the jury would have rendered a different verdict if the error had not occurred." the court found against the defendant, holding that "there is no real possibility that the jury would have returned a different verdict had the court's post-voir dire statement not been made to the jury."


Visit Americas Top DUI and DWI Attorneys at http://www.1800dialdui.com or call 1-800-DIAL-DUI to find a DUI OUI DWI Attorney Lawyer Now!