Pattern Jury Instruction on “Probable Cause” Incorrectly States the Law.

State v. Koppi, Minn.Ct.App., 3/9/2010.  An officer stopped Mr. Koppi because Mr. Koppi was speeding and appeared to be accelerating away from the squad car.  As he approached Mr. Koppi’s truck the officer smelled alcohol coming from Mr. Koppi and noticed that his eyes were bloodshot.  The officer asked Mr. Koppi to perform field sobriety tests but he refused.  The state charged Mr. Koppi with test refusal.

At trial, Mr. Koppi complained that the jury instruction that defined probable cause, CRIMJIG 29.28, provided a subjective, rather than an objective definition of probable cause.  The trial court gave the instruction anyway. 

The requirement to submit to chemical testing is triggered when an officer has probable cause to believe that the person driving is impaired.  Here’s the jury instruction on the probable cause element of test refusal:

‘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.

Probable cause exists when an objective inquiry and review of the totality of the circumstances says it does.  A proper jury instruction must inform the jury that there must be an objective basis for the officer’s belief that probable cause exists.  The problem with the pattern instruction is that it does not expressly state this law, and it fails to require that the officer explain the reason for his belief by reference to objective facts and circumstances.  The trial court committed error by giving the pattern instruction, but, alas, this error was harmless.

The appellate court does not say what a correctly worded probable cause instruction looks like.