                        This opinion will be unpublished and
                        may not be cited except as provided by
                        Minn. Stat. § 480A.08, subd. 3 (2014).

                             STATE OF MINNESOTA
                             IN COURT OF APPEALS
                                   A14-1010

                                  State of Minnesota,
                                     Respondent,

                                          vs.

                                 Daniel Gary Mason,
                                     Appellant.

                                 Filed April 13, 2015
                                      Affirmed
                                   Chutich, Judge

                           Hennepin County District Court
                              File No. 27-CR-13-6648

Lori Swanson, Attorney General, St. Paul, Minnesota; and

Michael O. Freeman, Hennepin County Attorney, Linda M. Freyer, Assistant County
Attorney, Minneapolis, Minnesota (for respondent)

Cathryn Middlebrook, Chief Appellate Public Defender, Lydia Villalva Lijó, Assistant
Public Defender, St. Paul, Minnesota (for appellant)


      Considered and decided by Chutich, Presiding Judge; Rodenberg, Judge; and

Reyes, Judge.

                       UNPUBLISHED OPINION

CHUTICH, Judge

      Appellant Daniel Mason appeals his conviction of first-degree test refusal,

contending that the district court committed plain error in instructing the jury on the
elements of the charge and abused its discretion by crafting an argumentative and

unnecessary instruction regarding his defense. He also argues that the test-refusal statute

is unconstitutional. Because the district court properly instructed the jury and because the

statute is constitutional, we affirm.

                                         FACTS

       In February 2013, Minnetonka Police Officer Corey Schmidt was on patrol around

9:00 p.m. when he received a dispatch about a possible drunk driver on Excelsior

Boulevard. The information concerned a suspected drunk driver who pulled into an

Enterprise car rental lot just off Excelsior, got out of the car, and urinated. Officer

Schmidt did not see any occupied or running cars in the lot when he arrived. It had

snowed that afternoon, but Officer Schmidt did not see any tire tracks in the Enterprise

lot. But past Enterprise, in the same parking lot, Officer Schmidt saw a car in front of

Sunshine Car Wash with its headlights on. Officer Schmidt noticed tire tracks in the

snow-covered lot as if the car had just pulled in, and he also saw snow underneath the car

but no snow on it.

       As Officer Schmidt approached the car, he noticed a man in the passenger seat but

no one in the driver’s seat. He then saw a man swaying back and forth and attempting to

unlock a door to the car wash. He identified this man as appellant Daniel Mason. Officer

Schmidt smelled alcohol and urine on Mason and noticed that Mason had a large wet spot

on the front of his pants.

       Mason told Officer Schmidt that he had been drinking that night at the VFW and

that he stopped at the car wash, his place of employment, to pick up some beer. Based on


                                             2
the tracks in the lot, the cold weather, and the distance from the bar to the car wash,

Officer Schmidt believed that Mason had driven from the bar to the car wash. Officer

Schmidt asked if Mason would take a field sobriety test. Mason indicated that he would,

but that it would not go well. Officer Schmidt was not sure that Mason could safely

complete the test, and he also did not know if Mason’s answer meant that he would

physically resist the test. Based on Mason’s slurred speech, odor of alcohol, and red

eyes, Officer Schmidt arrested Mason for driving while impaired.

      Officer Schmidt took Mason to the Minnetonka Police Department where he read

Mason the implied-consent advisory. Mason said that he wanted to speak to an attorney,

and Officer Schmidt provided him with a telephone and phonebooks. Mason called his

mother and then said they could continue the process. When Officer Schmidt asked

Mason to take a breath test, Mason again said he wanted to talk to an attorney; Officer

Schmidt again gave Mason a telephone and phonebooks. Mason made no attempt to call

anyone, however. About 19 minutes later, Officer Schmidt asked Mason to take a breath

test for the third time; Mason again asked to talk to an attorney. Officer Schmidt treated

this request as a test refusal.   Mason was charged with first-degree driving while

impaired-test refusal. See Minn. Stat. § 169A.20, subd. 2 (2012).

      At trial, Mason testified that he had worked at the car wash that day until around

noon, and then he and a friend went to a casino and then to the VFW. When Mason ran

out of money, the two drove to the car wash around 6:00 p.m. so that Mason could take

money from the car wash’s petty cash. Mason said that after he took the money, he and

his friend walked to a different bar down the street from the car wash. The two then left


                                            3
that bar to walk back to the car wash for more money. Mason said that his friend waited

in the car and turned on the headlights because he was having trouble opening the door.

He also said that he urinated outside the car wash. Mason said that while he was inside

getting money, a police car pulled into the lot. Mason admitted telling the officer that he

was coming from the VFW to get more beer.

       The jury found Mason guilty of first-degree test refusal.          The district court

sentenced Mason to 48 months in prison. Mason appealed.

                                      DECISION

                                   I. Jury Instructions

       A district court is allowed “considerable latitude in the selection of language for

jury instructions.” State v. Ihle, 640 N.W.2d 910, 916 (Minn. 2002). This court views

jury instructions in their entirety to determine whether they fairly and adequately explain

the law. State v. Flores, 418 N.W.2d 150, 155 (Minn. 1988). The instructions must

define the crime charged. Ihle, 640 N.W.2d at 916. If the instructions, read as a whole,

correctly state the law “in language that can be understood by the jury, there is no

reversible error.” State v. Peou, 579 N.W.2d 471, 475 (Minn. 1998). A jury instruction

that misstates the law is error. State v. Kuhnau, 622 N.W.2d 552, 556 (Minn. 2001).

       The district court instructed the jury on the elements of test refusal as follows:

                     The elements of refusal to submit to testing are: First a
              peace office[r] has probable cause to believe that Mr. Mason
              drove, operated or was in physical control of a motor vehicle
              while impaired by alcohol.

                    Probable cause means that the officers, based on their
              observation, information, experience and training can testify


                                              4
              to the objective facts and circumstances in the particular
              situation that lead the officer to believe that Mr. Mason was
              driving, operating, or in physical control of a motor vehicle
              while impaired by alcohol.

                     The State does not have to prove beyond a reasonable
              doubt that Mr. Mason was driving or impaired by alcohol,
              rather, the State must prove that there w[ere] sufficient
              objective facts to support an officer’s reasonable belie[f] that
              Mr. Mason was driving while impaired by alcohol.

                     Second element. The peace officer placed Mr. Mason
              under lawful arrest for driving while impaired. An arrest is
              lawful when the officer has probable cause to believe that the
              defendant is in violation of the law.

       A.     Plain error

       Mason first argues these instructions improperly explained probable cause in a

subjective manner. He next contends that the instructions did not inform the jury to

determine probable cause based on the totality of the circumstances, and they did not

define probable cause as an “honest and strong suspicion.” He further asserts that the

second element did not properly define “lawful arrest.”

       Because Mason did not object to the instructions at trial, we review for plain error.

See State v. Prtine, 784 N.W.2d 303, 316 (Minn. 2010). To establish plain error, “there

must be (1) error; (2) that is plain; and (3) the error must affect substantial rights.” State

v. Griller, 583 N.W.2d 736, 740 (Minn. 1998). If all three prongs are met, we must

assess whether we “should address the error to ensure fairness and the integrity of the

judicial proceedings.” Id.

       Mason bases his argument on the Minnesota Supreme Court’s decision in State v.

Koppi, 798 N.W.2d 358 (Minn. 2011). In Koppi, the district court, in instructing the jury


                                              5
on the elements of test refusal, defined probable cause as “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.” Id. at

363. The Koppi court identified three flaws with that instruction: (1) it did not require the

officer to articulate specific facts and circumstances supporting probable cause, (2) it did

not require the jury to determine if an objective officer would have probable cause based

on the totality of the circumstances, and (3) it misstated the probable cause standard as

“more likely than not” rather than the correct “honest and strong suspicion.” Id. at 363–

64.

       Applying the principles of Koppi here, we do not agree with Mason’s claim that

the instruction incorrectly charged the jury with considering probable cause from a

subjective standpoint. The instruction directed the jury to consider “the objective facts

and circumstances in the particular situation.”      Although the district court did not

specifically instruct the jury to consider the viewpoint of a reasonable officer, it did

instruct them to consider “objective facts.” The viewpoint of a reasonable person is

synonymous with objective observations. See State v. Cripps, 533 N.W.2d 388, 391

(Minn. 1995) (“The reasonable person standard is an objective standard . . . .”).

       The district court further instructed the jury to consider whether “there w[ere]

sufficient objective facts to support an officer’s reasonable belie[f].” (Emphasis added.)

After listing the elements, the district court again instructed the jury to determine

“whether the officers had an objective and reasonable basis for concluding that Mr.

Mason was driving.” (Emphasis added.) When the instruction is read in its entirety, the


                                             6
district court correctly instructed the jury to consider the objective facts from a

reasonable officer’s perspective.

       Mason’s claim that the instruction was subjective because it included the phrase,

“the officers, based on their observation, information, experience and training can testify

to the objective facts and circumstances in the particular situation” also fails. This aspect

of the instruction went to the first requirement of Koppi: that the officers recite actual

observations and circumstances to support probable cause rather than just a “gut feeling.”

798 N.W.2d at 363. More importantly, Koppi recognized that “because an officer’s

training and experience is the lens through which the fact-finder must evaluate the

reasonableness of an officer’s determination of probable cause, probable cause

incorporates the individual characteristics and intuitions of the officer to some extent.”

Id. at 362. Reasonableness is still an objective inquiry, but it is evaluated in light of the

officer’s training and experience. Id. This aspect of the instructions did not create a

subjective standard for probable cause.

       Mason further claims that the instruction was erroneous because it did not include

the phrase “totality of the circumstances.” But the focus in Koppi was not on the phrase

“totality of the circumstances.” Instead, the supreme court focused on whether the jury

was instructed to consider the totality of the circumstances from a reasonable officer’s

viewpoint rather than from a particular officer’s perspective. Id. at 363–64. And while

the district court here did not use the phrase “totality of the circumstances,” it did direct

the jury to consider “the objective facts and circumstances in the particular situation,” and

it included that the state must prove “that there w[ere] sufficient objective facts to support


                                              7
an officer’s reasonable belie[f].” Because district courts are given “considerable latitude”

in crafting jury instructions, Ihle, 640 N.W.2d at 916, this portion of the instruction was

not erroneous.

       Mason’s argument regarding the absence of “honest and strong suspicion”

language in the jury instruction similarly fails. In Koppi, the supreme court held the

instruction was incorrect not merely because it lacked the “honest and strong suspicion”

language, but because it gave an erroneous standard of “more likely than not.” 798

N.W.2d at 364. The supreme court noted, “The ‘honest and strong suspicion’ standard

requires more than mere suspicion.” Id.

       The current pattern jury instruction, based on Koppi, instructs the jury to consider

whether the circumstances “would lead a reasonable officer to have an honest and strong

suspicion that the defendant was driving.” 10A Minnesota Practice, CRIMJIG 29.28

(Supp. 2014).    Here, the district court instructed the jury to determine whether the

objective facts would “support an officer’s reasonable belie[f] that Mr. Mason was

driving.”   Probable cause, in addition to being defined as an “honest and strong

suspicion,” has also at times been stated in terms of an officer’s “reasonable belief.” See,

e.g., In re Welfare of G.M., 560 N.W.2d 687, 695 (Minn. 1997) (noting that probable

cause requires police to have a “reasonable belief”). Accordingly, the language here

correctly defined probable cause.

       Mason next claims that the instruction wrongly defined “lawful arrest.” The

instruction directed the jury to consider whether Mason was lawfully arrested and defined

lawful arrest as “when the officer has probable cause to believe that the defendant is in


                                             8
violation of the law.”     This instruction essentially directed the jury to the previous

instruction defining probable cause, which gave a correct, objective definition.

Accordingly, because the earlier instruction was correct, this instruction was also correct.

See State v. Ouellette, 740 N.W.2d 355, 360 (Minn. App. 2007) (noting redundancy in

test-refusal instruction between probable cause in first element and lawful arrest in

second element), review denied (Minn. Dec. 19, 2007).

       Because Mason has not established the first prong of the plain error test, it is

unnecessary to discuss the other prongs.

       B.      Abuse of Discretion

       Mason asserts that the district court abused its discretion by adding language to the

jury instructions in two places. He contends that the district court’s inclusion of language

regarding the burden of proof and clarification of available defenses were unnecessary,

argumentative, and impermissibly shifted the burden of proof. We disagree.

       Before the district court gave the instructions, it informed counsel that it intended

to clarify that the jury was not “bound to conclude that if [Mason] was not driving, he is

not guilty.” This addition was not an abuse of discretion. See Paulson v. Lapa, Inc., 450

N.W.2d 374, 378 (Minn. App. 1990) (“It is well established that correction of any alleged

misconception which the jury might have gained from the arguments of counsel by

further court instructions is a matter that rests largely in the discretion of the trial court.”),

review denied (Minn. Mar. 22, 1990).

       Nor was this addition argumentative; it was a correct statement of the law. To

convict a defendant of test refusal, the state is not required to prove that a defendant was


                                                9
actually driving; it only need prove that the police had probable cause to believe that the

defendant was driving. See Minn. Stat. §§ 169A.51, .52 (2014); see also Minn. Stat.

§ 169A.20, subd. 2 (incorporating §§ 169A.51 and .52); Ouellette, 740 N.W.2d at 360

(holding that prerequisites for testing under § 169A.51 are elements of criminal test

refusal); CRIMJIG 29.28 (elements of test refusal). Furthermore, Minnesota Statutes

section 169A.46 (2014), which lists affirmative defenses, omits “not driving” as an

affirmative defense to test refusal. And Minnesota caselaw does not suggest that “not

driving” is a defense to test refusal. Because the instructions correctly stated the law in

language that could be understood by the jury, no error occurred. State v. Cross, 577

N.W.2d 721, 726 (Minn. 1998).

       Mason further contends that because the district court instructed the jury that his

claim of “not driving” was not a defense, it implied that he had a duty to provide some

defense to the charge against him. But the district court repeatedly informed the jury that

the state carried the burden to prove beyond a reasonable doubt that Mason was guilty

and that Mason did not have to prove anything. And the district court did not instruct the

jury that Mason must prove a defense, it merely clarified that his argument was not a

defense.

       Because the district court’s jury instructions correctly stated the law and did not

shift the burden of proof, and given the considerable latitude district courts have in

crafting jury instructions, no abuse of discretion occurred.

       Mason asserts that the cumulative effect of these alleged errors requires reversal.

Because the instructions were not error, this argument lacks merit.


                                             10
                     II. Constitutionality of the Test-Refusal Statute

       Finally, Mason argues that the test-refusal statute is unconstitutional.          The

Minnesota Supreme Court recently rejected Mason’s argument in State v. Bernard, ___

N.W.2d ___, 2015 WL 543160 (Minn. Feb. 11, 2015). In Bernard, the supreme court

held that a warrantless breath test of an arrested suspect is a constitutionally reasonable

search incident to arrest. Id. at *7. The supreme court also determined that a warrantless

breath test furthers the state’s interest in highway safety and is “reasonably related to the

government’s interest in keeping impaired drivers off the road.” Id. at *8. Because

encouraging drivers to submit to breath tests by criminalizing their refusal relates to the

state’s ability to prosecute drunk drivers and keep the roads safe, the supreme court held

that the test-refusal statute is constitutional. Id. at *9.

       Given the recent decision in Bernard, Mason’s constitutional argument fails.

       Affirmed.




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