Preview:

STATE OF MINNESOTA IN COURT OF APPEALS A09-136 State of Minnesota, Respondent, vs. John Allen Koppi, Appellant. Filed March 9, 2010 Affirmed Shumaker, Judge Hennepin County District Court File No. 27-CR-08-33065

Lori Swanson, Attorney General, St. Paul, Minnesota; and John J. Thames, Corcoran City Attorney, Carson, Clelland & Schreder, Minneapolis, Minnesota (for respondent) Mark D. Kelly, St. Paul, Minnesota (for appellant) Considered and decided by Connolly, Presiding Judge; Shumaker, Judge; and Worke, Judge.

SYLLABUS 1. 10A Minnesota Practice, CRIMJIG 29.28 (Supp. 2009), does not

accurately state the definition of probable cause because it implies that a law-enforcement officers subjective belief alone is sufficient to justify a traffic stop.

2.

The district court does not err by determining as a matter of law that a

person arrested for impaired driving had reasonable and adequate time to contact an attorney. 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 Koppis eyes were "a red, glossy, bloodshot color," and there was a "slight odor of an alcoholic beverage" 2

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 Koppis 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 Koppis 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 havent 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 3

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 Koppis 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. 4

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 courts 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 jurys verdict, "and more specifically, whether the jurys 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.

Download A09-136, State of Minnesota, Respondent, vs. John Allen Koppi, Appellant..pdf

Minnesota Law