State v. Koppi

DIETZEN, Justice

(dissenting).

Because the majority’s conclusion that the jury instruction was not harmless beyond a reasonable doubt rests on the erroneous premise that there is a reasonable possibility the instruction had a significant impact on the test-refusal verdict, I respectfully dissent. To explain my dissent, I will examine the applicable standard of review and the probable cause standard, and will then apply those standards to the facts of this case.

An erroneous jury instruction merits a new trial if we cannot say “ ‘beyond a reasonable doubt that the error had no significant impact on the verdict.’ ” State v. Valtierra, 718 N.W.2d 425, 433 (Minn.2006) (quoting State v. Olson, 482 N.W.2d 212, 216 (Minn.1992)). A new trial is not required when we are satisfied that the erroneous jury instruction “did not play a role in influencing the jury to convict and that the defendant clearly would have been convicted of the same offense if the trial court had correctly instructed the jury.” State v. Hayes, 431 N.W.2d 533, 536 (Minn.1988). Thus, under this standard, we examine whether the error was harmful in the sense that there is a reasonable possibility that a properly-instructed jury would have reached a different result.

The question for review is whether the officer had probable cause to believe that Koppi was driving under the influence. This is because Koppi was convicted of test refusal and the test refusal statute requires only that the officer have “probable cause to believe the person was driving” under the influence. Minn.Stat. § 169A.51, subd. 1(b) (2010); see also Minn.Stat. § 169A.20, subd. 2 (2010) (noting that it is a crime to refuse a test under section 169A.51); MinmStat. § 169A.51, subd. 1(b) (“The test may be required of a person when an officer has probable cause to believe the person was driving ... while impaired.”).

Probable cause is an objective standard that is met when “the facts would lead a person of ordinary care and prudence to entertain an honest and strong suspicion” that a crime has been committed. State v. Carlson, 267 N.W.2d 170, 173 (Minn.1978); see also State v. Harris, 589 N.W.2d 782, 791 (Minn.1999). In other words, “the facts present must justify more than mere suspicion but less than a conviction.” Carlson, 267 N.W.2d at 174 ; see also Brinegar v. United States, 338 U.S. 160, 174 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949) (explaining that, if the standard for determining a defendant’s guilt were applied to the question of probable cause, “few indeed would be the situations in which an officer, charged with protecting the public interest by enforcing the law, could take effective action toward that end”).

In applying the probable cause standard, a court “should view the circum *368 stances in light of the whole of the arresting officer’s police experience as of the time of the arrest.” Carlson, 267 N.W.2d at 174 . “Each case must be determined on its own facts and circumstances.” Id. at 173-74 . A court does not look at the facts in isolation, but examines them together. See State v. Harris, 295 Minn. 38, 42 , 202 N.W.2d 878, 881 (1972) (evaluating the totality of the circumstances observed by the officer to determine whether probable cause existed). And it matters not that the officer turns out later to have been incorrect. See State v. Johnson, 314 N.W.2d 229, 230 (Minn.1982) (“The fact that it later turns out that the officers were wrong does not mean that they did not have probable cause at the time they made their assessment.”). This is “[because many situations which confront officers in the course of executing their duties are more or less ambiguous” and so “room must be allowed for some mistakes on their part.” State v. Harris, 265 Minn. 260, 265 , 121 N.W.2d 327, 331 (1963) (citation omitted) (internal quotation marks omitted).

This standard “is a practical, nontechnical conception affording the best compromise that has been found for accommodating” the competing interests of protecting the privacy of individuals and protecting the community through enforcement of the law. Id. at 265 , 121 N.W.2d at 331 . Therefore, it should not be applied in an “unduly technical” manner. Carlson, 267 N.W.2d at 174 .

Applying that standard here, I would conclude that the only reasonable conclusion, based on the officer’s testimony and the facts of this case, was that the officer indeed had probable cause to believe Kop-pi was driving while impaired. The arresting officer testified that he observed Koppi speeding and Koppi appeared to accelerate away from the officer. Based on these observations, the officer effectuated a traffic stop. When he spoke to Koppi, the officer saw that Koppi’s eyes were bloodshot and Koppi smelled of alcohol. The officer also saw that Koppi’s balance was impaired as the officer watched Koppi sway from side to side as he walked to the rear of his vehicle. Based on these facts, the officer asked Koppi to submit to a test to determine whether he was, in fact, under the influence. Koppi refused and was subsequently charged with driving under the influence in violation of Minn.Stat. § 169A.20, subd. 1, and test refusal in violation of Minn.Stat. § 169A.20, subd. 2.

The majority properly acknowledges that Officer Hunter’s direct, factual testimony of Koppi’s indicia of impairment satisfied the objective probable cause standard, and therefore a properly instructed jury could have found that probable cause existed. Indeed, this conclusion is supported by well-established precedent. 1 In *369 concluding that Koppi is entitled to a new trial, the majority focuses its analysis on the wrong question. Specifically, the majority cites to the following testimony to support the conclusion that Koppi was not, in fact, guilty of driving under the influence: (1) the odor of alcohol was “slight,” whereas “in 95% of arrests for driving under the influence of alcohol, the driver emits a moderate to strong odor of alcohol;” (2) Koppi’s speech was not slurred; (3) and the officer did not observe Koppi’s vehicle touch or cross the center or fog lines. The question before this court is not whether the evidence was sufficient to support a conviction for driving under the influence. The jury already determined that Koppi was not guilty of that charge, and the question of Koppi’s guilt on that charge is not before us. Therefore, this analysis is flawed.

Moreover, the majority’s analysis departs from our well-settled, “practical, nontechnical conception” of probable cause. Harris, 265 Minn. at 265 , 121 N.W.2d at 331 (citation omitted) (internal quotation marks omitted). The majority concludes that there is doubt as to whether there was probable cause to believe Koppi was under the influence because the officer did not observe erratic driving behavior. But the officer did not stop Koppi because the officer observed driving behavior that caused the officer to believe Koppi was under the influence. The officer stopped Koppi for speeding. It was only after the officer approached the vehicle, saw Koppi’s bloodshot eyes, and smelled alcohol upon talking to Koppi that the officer’s investigation turned to the question of Koppi’s impairment. As will commonly be the ease, probable cause for driving under the influence may arise after the officer stopped the car. But the majority’s analysis emphasizes the absence of indicators of impairment before the cause for suspicion arose. In doing so, the majority creates an impractical standard for the assessment of probable cause — that officers must observe indicia of intoxication before stopping the car in order to have probable cause to believe that a driver is intoxicated.

Further, the logical consequence of the majority’s impractical standard for the assessment of probable cause is that police officers in Minnesota must now ignore other indicia of alcohol consumption indisputably present in this case — bloodshot eyes, the odor of alcohol, and impaired balance. In doing so, the majority creates a rigid, technical definition of what constitutes probable cause. This rule is a marked departure from existing precedent, and I cannot subscribe to it. 2

*370 The majority’s focus on what it characterizes as the “equivocal nature of the evidence” that can be drawn from the evidence likewise ignores the proper probable cause standard enunciated in our precedent. The probable cause standard does not require proof by a preponderance of the evidence. See Illinois v. Gates, 462 U.S. 213, 235 , 103 S.Ct. 2317 , 76 L.Ed.2d 527 (1983) (“Finely tuned standards such as proof beyond a reasonable doubt or by a preponderance of the evidence ... have no place in” the probable cause decision.). The United States Supreme Court made this distinction very clear in Brinegar v. United States, 338 U.S. 160 , 69 S.Ct. 1302 , 93 L.Ed. 1879 (1949). The Court described the “difference in standards and latitude allowed in passing upon the distinct issues of probable cause and guilt.” Id. at 174, 69 S.Ct. 1302 . The Court concluded that if the standards for determining a defendant’s guilt were applied to the question of probable cause, “few indeed would be the situations in which an officer, charged with protecting the public interest by enforcing the law, could take effective action toward that end.” Id. We accepted as “correct” the Brinegar Court’s formulation of the probable cause standard almost 50 years ago. Harris, 265 Minn. at 264 , 121 N.W.2d at 331 . The majority’s new formulation of the probable cause standard is at odds with this precedent. 3

Finally, the fact that the officer was wrong about Koppi driving under the influence, as he apparently was in this case based on the jury’s verdict, is not relevant to the question of probable cause. See Johnson, 314 N.W.2d at 230 . The probable cause standard requires only that a reasonable police officer have an “honest and strong suspicion” that the driver was operating his vehicle while under the influence. Carlson, 267 N.W.2d at 173 . When the evidence is assessed under the proper formulation of probable cause, the only conclusion that can be reached is that the officer had probable cause. Specifically, the officer saw the driver speeding and accelerating away from the officer. The driver smelled of alcohol and his eyes were bloodshot. The driver was unsteady on his feet, as demonstrated by the fact that he swayed from side to side as he walked. Considering all of this evidence together, the conclusion that the officer had probable cause is inescapable. I therefore would conclude that the error in the jury instruction was harmless and would affirm the conviction.

. See, e.g., Quimby v. State, 351 N.W.2d 629, 632 (Minn. 1984) (upholding probable cause determination when the officer observed alcohol on Quimby’s breath, a flushed face, bloodshot eyes, a swaying walk, and thick speech); Johnson v. State, Dep’t of Pub. Safety, 351 N.W.2d 2, 5 (Minn.1984) (explaining that there are numerous signs of intoxication and that one can be intoxicated without exhibiting all of the signs and holding that Johnson's post-accident slow driving and his swaying back and forth as he walked into the restaurant satisfied the objective probable cause standard); Harris, 295 Minn, at 41-42, 202 N.W.2d at 880-81 (upholding probable cause when the officer smelled the odor of alcohol, Harris swayed as he walked, and Harris was asleep behind the wheel of the car); Swapinski v. Comm’r of Pub. Safety, 368 N.W.2d 322, 323 (Minn.App.1985) (upholding probable cause determination when the officer observed a speeding violation, "a ‘fairly strong’ odor of alcohol,” and ‘‘Swapinski had a little problem’ alighting from his truck”), rev. denied (Minn. July 26, 1985); Giddings v. Comm’r Pub. Safety, 354 N.W.2d 579, 581 (Minn.App.1984) (upholding aprobable cause *369 determination when the officer observed a speeding violation, bloodshot eyes, balance problems, a "fruity” odor on Giddings’ breath, and Giddings admitted drinking alcoholic beverages). To the extent that the majority's analysis can be read as requiring some form of erratic driving, the analysis is a marked departure from existing precedent.

. The majority contends that because I "fail[ ] to reference even a single case involving instructional error subject to harmless error review,” that I have “incorrectly firam[ed] the question.” But, in this part of its analysis, the majority cites cases that involve evidentia-ry errors, not errors in jury instructions. See supra at 365-66 (citing State v. Blasus, 445 N.W.2d 535, 541 (Minn.1989), and State v. Wofford, 262 Minn. 112, 120 , 114 N.W.2d 267, 272 (1962)). Elsewhere in its analysis, the majority cites the well-settled standard we apply to consider whether jury instruction errors require a new trial. See supra at 365 (citing State v. Larson, 787 N.W.2d 592, 601 (Minn.2010) ("An erroneous jury instruction is harmless if, beyond a reasonable doubt, the instruction had no significant impact on the verdict rendered.”) (citations omitted)). A new trial is not warranted under that standard. The error "had no significant impact on the verdict” because the only reasonable conclusion that can be reached, assuming of course that we apply the definition of proba *370 ble cause that we have used for almost 50 years, is that the officer had probable cause. Id. The jury instruction error therefore was harmless.

. The majority asserts that I have "exaggerate[d]” its holding. To be clear, the majority has now concluded that even though Koppi smelled of alcohol, had bloodshot eyes, and his balance was impaired, there is nonetheless reasonable doubt as to whether there was probable cause to believe he was driving under the influence. The majority’s new formulation of probable cause injects uncertainty into our probable cause jurisprudence. It is no exaggeration to say that I am deeply concerned about the impact that this uncertainty will have on the ability of law enforcement to address the ever-increasing danger presented by those who choose to drive on Minnesota roads while they are under the influence of alcohol or other illegal substances. Cf. Bendorf v. Comm’r of Public Safety, 727 N.W.2d 410, 416-17 (Minn.2007) (noting that “drunken drivers pose a severe threat to the health and safety of the citizens of Minnesota” and that “[t]he state has a compelling interest in highway safety justifying efforts to keep impaired drivers off the road” (citation omitted)).