Ramsay Law Firm Presents - Uncertainty of Measurement With the Innocence Project

If you have any interest in learning more about the hottest topic in forensic criminal defense, you'll want to mark your calendars for December 17, 2015. On that date, Charles Ramsay and Dan Koewler of Ramsay Law firm are invited to give a presentation on uncertainty of measurement on behalf of the Minnesota Innocence project. The registration fee is just $150, and you can sign up right here

We've designed the seminar to include careful explanations of the core scientific concepts being reporting a test's "uncertainty of measurement" (simply explaining how accurate or inaccurate a test result really is), a bedrock scientific principle that currently renders most current DWI breath testing regimens invalid and unreliable. These scientific concepts that are applicable to any forensic quantitative process, not just breath testing, but we will not only be providing breath test-specific theory, but also tons of practical applications and strategies for litigators. 

We will be presenting alongside Judge Philip C. Carruthers, both a former criminal defense attorney and former director of the Ramsey County Attorney’s Office, who will not only join the discussion but will also bring a judicial perspective regarding the application of the Daubert/Frye standards to scientific measurement issues. Judge Carruthers will share his perspective with practitioners about what is most helpful to him as a judge when ruling on Daubert/Frye issues. He will also share trends in scientific cases and challenges facing the Hennepin County bench most frequently.

Now stop reading and go register!


Supreme Court to Discuss Bernard Appeal on December 4

We've got a small update to provide regarding the ongoing state of the law regarding Minnesota's Test Refusal Law. Mark December 4, 2015 on your calendars - the day that the United States Supreme Court is going to hold a conference on several Minnesota appeals. 

Currently, there are several Minnesota cases that are asking the United States Supreme Court to review the constitutionality of Minnesota's DWI Test Refusal Law. The one most people are familiar is the Bernard case - where the Minnesota Supreme Court found that breath tests were not protected by the warrant requirement because they were "searches incident to arrest." Bernard is now set for conference on December 4. 

We discussed two other petitions for review that were filed around the same time as Bernard - the Issacson and Manska cases (both are also test refusal cases). Both of these cases are also set for December 4.

What does this mean? It means that we'll likely know if SCOTUS intends to accept review of Minnesota's DWI Test Refusal Law some time before Christmas. 

Those Who CAN Do, Also Teach

Good attorneys - the ones who want to do more than take your money, the ones that actually want to (and enjoy) fighting for you, are constantly learning the latest and greatest legal tactics to help their clients win. Now, nobody has unlimited time to learn, so good attorneys will be very picky when it comes to who they go to for their continuing education.

You know the old saying, "those who can't do, teach?"  (sometimes followed by, "and those who can't teach, teach gym"). Well, I think it's a stupid saying, regardless of the context, but it's certainly stupid when it comes to continuing legal education. The best and brightest attorneys are at the top of their game (putting their clients in just as favorable position), and it is those attorneys that are often called upon to share their hard-won knowledge and expertise with other attorneys.

The attorneys at Ramsay Law Firm are always working to improve themselves through education . . . and sometimes that means stepping up and doing the educating. We recently announced that our own Charles Ramsay joined the faculty of the prestigious, nationwide National College for DUI Defense. This weekend, instead of spending time with his family, he'll be teaching the best DWI defense attorneys from around the country on how to successfully attack the science behind breath testing

After this weekend, Chuck will be back in Minnesota, continuing to use what he taught to attack the breath tests in our client's cases. And these attacks are picking up some serious steam - we've uncovered even more information calling Minnesota's breath testing scheme into serious question. Those challenges are going to give us the edge for all of our clients - and in DWI defense, it can be the edge needed to get a successful resolution to the case.

Does your attorney teach for the National College of DUI Defense? Wouldn't you rather that he or she did?

Lowering the Legal Limit to 0.05 - We've Been Here Before

Recently, the National Transportation Safety Board issued its formal recommendation that the states reduce the per se legal limit for alcohol from 0.08 to 0.05

Sound familiar? It should - they made the same recommendation two years ago

At this point, we'll just reiterate our previous stance on this type of change:

As one example, with a .05 limit there will need to be a great deal of additional scrutiny focused on the various test methods used against drivers - blood tests, breath tests, and urine tests. These tests will have to be a great deal more accurate and precise to distinguish between drivers who are .049 and .05. Additionally, tests that can dramatically over-estimate alcohol concentration (like urine tests) would have even less of a place as a law enforcement tool than they do now.

But the biggest question may be "why .05?" Currently, it is still legal to drink and drive in Minnesota; what is criminal is being impaired, or being over .08. With a .05 limit, legislatures will still be telling drivers "it is legal to drink and drive" but the threshold for criminality will be so low so as to make it virtually impossible for someone to know if they really are over the legal limit. At that point, it likely makes the most sense to simply change the law to "not a drop" and thereby put everyone on notice that any drinking coupled with any driving will be a criminal act. This is already the case for drivers under the age of 21 - any presence of alcohol while driving results in criminal charges.

That type of law - not a drop - will undoubtedly come down the pipe in the future . . . but not anytime soon. In the meantime, the legal limit will continue to drop in small increments, tripping up thousands of drivers annually while our legislatures keep drawing finer and finer lines between the realm of "legally sober" and "criminally drunk."


And in conclusion . . . here is a picture of a pet tornado (now we can say this is not a full re-post of our comments from 2013)


The Technicalities (and Presumptions) of DWI: Part II

We previously discussed one of the most common misconceptions held by people who were arrested for driving while impaired - the future client who calls our office and feels obligated to keep reminding us that they "know" that they are "technically guilty of DWI" but . . . but . . . but. We debunked the myth of "technically guilty" drivers in that prior blog, and today we're going to talk about the other common misconception, namely, that the only way to "beat" a DWI is by taking advantage of some once-in-a-lifetime "technicality."

I shudder whenever a future client talks about "technicalities" because it shows a serious misunderstanding of what our constitutional rights really stand for. When someone says, "I want to know if it is possible to get off on a technicality" I secretly cringe, before trying to explain that what they meant to say is "did the government do its duty to uphold my constitutional rights?" 

That's not just mincing words - it's the cornerstone of our free, democratic society. Now, there are always scientific challenges to raise in DWI cases (the validity, accuracy, and reliability of the breath test, for example) and there are also specific challenges to the facts of many cases (would a jury agree that the person in actual physical control of the vehicle, or that the field sobriety tests were properly conducted) but many of the best defenses are constitutional challenges ("technicalities" that are anything but).

The Constitution affects DWI investigations more so than almost any other crime. You've got the initial seizure of the individual, which implicates the Fourth Amendment. The Fifth Amendment right to remain silent comes into play regularly (and often earlier in the encounter than most people think). You've got a constitutional right to counsel before you even submit to a blood, breath, or urine test, and a due process right to obtain an independent test afterwards. The test itself is a search protected by the Fourth Amendment warrant clause (a hotly contested topic to this day), and this is just scratching the surface of the dozens of constitutional challenges that have successfully been used to get DWI cases thrown out of court. 

When a law enforcement agent stops a driver without a reasonable suspicion of criminal activity, throwing out the case isn't due to a "technicality," it's a duty - our judges have a duty to protect the public from overzealous law enforcement agents - even if the driver was unequivocally intoxicated. When the government crime lab uses a fleet of breath test instruments that are unscientifically calibrated, improperly maintained, and are used to report grossly inaccurate and misleading results, suppressing those test results on Due Process grounds is not a "technicality," it's nothing more (or less) than a judge doing his or her duty to act as constitutional gatekeepers, each responsible for screening out blatantly unfair evidence. 

The "technicalities" of DWI defense don't arise once in a blue moon - they arise in almost every single case. It's probably once or twice a year that we come across a case where there is no way to raise a constitutional challenge to some aspect of a DWI case; 99% of the time, those challenges are plain to see, aching to be litigated, and able to be won. 

You are not "technically" guilty of DWI unless you plead guilty or lose your case at trial; and your attorney's job is to zealously attack every constitutional violation in your case to suppress illegally obtained evidence. That's not "winning on a technicality" that's just the benefit of living in a free, democratic society.

Hundreds of thousands of soldiers have died overseas defending our constitutional freedoms, and it would be absurd to fight with any less conviction when those freedoms are in need of defense at home


Test Your Knowledge: Free and Voluntary Consent in Minnesota

What does “free and voluntary consent” mean in Minnesota?

Here’s a quiz! See how your notion of free and voluntary consent compares with that of Minnesota appellate courts.

Did the court find free and voluntary consent when “Terry” allowed the search?

1.  An officer placed Terry in a squad car, got into the squad car himself, and then repeatedly asked Terry to hand over his wallet.

2.  Two officers boarded a Greyhound bus and announced (I'm paraphrasing) “We’re looking for drugs and any searches will be consensual.” An officer asked Terry if he could search his body.(1) After finding nothing on Terry, the officers asked him to point out his luggage. After locating his bag, the officers asked Terry if they could search it.(2) After finding unused plastic baggies in his bag, the officers asked to search Terry again.(3)

3.  Terry opened the front door of his apartment to find three policemen, with guns drawn and an arrest warrant for someone else. The police asked if they could search his apartment.

4.  An officer arrested Terry and brought her to the police station. The officer told Terry that the law required her to submit to a search, and if she didn't allow the search she’d be charged with a crime. Terry asked if the officer had a warrant; he said no. Terry told the officer “[b]ecause I am being coerced, I will [let you search]” and “I’ll [allow the search] because I am required to.”

5.  Same circumstances as 4. Terry said “I guess I will [let you search], but I am not consenting." 

6.  Terry was stopped for a petty misdemeanor, frisked for weapons, and placed in the back of a locked squad car. He signed a consent to search form that said he could refuse the search. The officers asked for consent to search his car as they handed him a warning ticket.

7.  Officers encountered Terry at the entry to his home and ordered him to the ground at gun point. The officers holstered their guns and let Terry stand up, then asked if they could search his home.

8.  In response to a caller’s concerns, three deputies confronted Terry through his front door. Terry spent 10-15 minutes assuring the deputies on his doorstep that he was not suicidal, and didn’t have a gun. One deputy asked Terry if they could search his home for a shotgun; he told Terry that he did not have to let them look.

9.  An officer stopped Terry on his motorcycle. After issuing warnings, the officer asked if he could search Terry’s bike. When Terry told the officer it would be a waste of time, the officer responded that it was his time to waste. The officer asked Terry to unlock the saddlebags. Terry did so.


10.  Officers arrested Terry and brought her to the station. An officer told Terry that the law required her to submit to a warrantless search, and refusing to allow the search would be a crime. Terry allowed the search, but the search equipment malfunctioned. Then Terry allowed another search, and another, and another. After four attempted searches the officer still hadn’t found any evidence. Did Terry commit a crime?


1.  State v. Dezso, 512 N.W.2d 877 (Minn.1994) No

2.  State v. Harris, 590 N.W.2d 90 (Minn.1999) (1) Yes (2) Yes (3) No 

3.  State v. Mendez, No. A14-0405, 2014 WL 7237098 (Minn.Ct.App. Dec. 22, 2014) No

4.  Poeschel v. Comm’r of Pub. Safety, No. A15-0142, 2015 WL 6442564 (Minn.Ct.App. Oct. 26, 2015) Yes

5.  Kraus v. Comm’r of Pub. Safety, No. A14-0646, 2014 WL 5507068 (Minn.Ct.App. Nov. 3, 2014), review denied (Jan. 28, 2015) Yes

6.  State v. Bell, 557 N.W.2d 603 (Minn.Ct.App.1996), review denied (Minn. Mar. 18, 1997) No

7.  State v. Alayon, 459 N.W.2d 325 (Minn.1990) Yes

8.  State v. Bunce, 669 N.W.2d 394 (Minn.Ct.App.2003), review denied (Minn. Dec. 16, 2003) Yes

9.  State v. George, 557 N.W.2d 575 (Minn.1997) No

10.  Stevens v. Comm’r of Pub. Safety, 850 N.W.2d 717 (Minn.Ct.App. 2014) Yes


Minnesota Court Finds Minn. Stat. 171.19 Unconstitutional

A win for individual rights and due process!

(Read the redacted order here.)

Due process of law is the backbone of our legal system. Procedurally, the Constitution guarantees each of us the right to notice and an opportunity to be heard before the government takes away our life, liberty, or property.

A driver’s license is a property interest, and Minn. Stat. § 171.19 has finally been found unconstitutional because it authorizes the government to suspend a driver’s license without providing the driver with a prompt, meaningful opportunity to be heard.

“Petitioner” (one of our clients) received a notice of license suspension under Minn. Stat. § 171.19. We filed for judicial review. The district court granted our motion, and rescinded the suspension of our client’s license because, according to the Court:

[T]he failure of Minn. Stat. § 171.19 to provide Petitioner with prompt meaningful review after a prehearing suspension of his driver’s license renders the statute unconstitutional as it violates Petitioner’s rights to due process.

With no prompt hearing language, no authority for a court to stay the suspension pending a hearing, and no prompt decision deadline, a driver like Petitioner is left with the government taking away his protected private interest without prompt recourse to seek review. Without these safeguards, Petitioner’s private interest in the continued use of his license is not sufficiently protected under the due process of the law[.]

The Commissioner of Public Safety argued that the statute is just fine “given the availability of hardship relief in the form of limited licenses, the Ignition Interlock Program and other remedies, … combined with the fact that Petitioner received a hearing within 38 days of filing his petition[.]”

The Court didn’t buy it, and reminded the Commissioner that

[It is] the statute itself that fails to adequately provide Petitioner with proper procedural due process, and the record demonstrates that Petitioner has suffered prejudice from its failure to guarantee a prompt and meaningful review of his license suspension.

This is a welcome, long-overdue victory for individual rights and due process (and a satisfying outcome for our client).


Chuck Ramsay Discusses Minnesota DWI Blood Testing With Minnesota's Capitol Report

The DWI legal landscape continues to shift after last week's decision by the Court of Appeals that Minnesota's DWI Test Refusal law is unconstitutional when law enforcement demand a blood sample.

Ramsay Law Firm's own Chuck Ramsay spoke with Politics In Minnesota's Capitol Report regarding the recent decision, noting that the decision is a "game changer."

Because the implied-consent advisory has 'now become a misstatement of the law,' Ramsay ventured DWI convictions in which the defendant agreed to submit to a blood sample could be subject to challenge.

Chuck Ramsay has a long history of fighting Minnesota's Test Refusal Law, and after years of practice has become a resource for both the legal and non-legal community, providing insight and commentary for most local news outlets

Published since 1927, the Capitol Report is the only independent newspaper dedicated to covering the Minnesota Legislature, state politics and public policy. Politics in Minnesota (PIM) was launched in 1982 as a weekly print newsletter.

You can read the whole article here.


It's a Sin To Kill A Mockingbird

Last night I enjoyed the distinct pleasure of seeing my favorite book transformed into a live play. Even if you've never read "To Kill a Mockingbird" watching Christopher Sergel's adaptation of that fantastic novel about racism and bravery in the South is well worth your time. But act fast, you've only got one more weekend before it's gone. The novel is good, this adaptation is good, and of course, the Guthrie Theater is always good, so go see it. 

When I was in law school, a close friend gave me a copy of this book, with the inscription "If you're going to be an attorney, be one like Atticus." It's advice that has always stuck with me, and it's not just applicable to defense attorneys, but to every attorney who has taken an oath to uphold the Constitution. 

Growing up, Atticus introduced many of us to many difficult-to-grasp concepts: the fact that there is, and always will be, evil and injustice in the world; this concept is contrasted with the fact that bravery to stand up to such injustice doesn't come from the barrel of a gun, but comes from within. When Atticus says "real courage is when you know you're licked before you begin, but you begin anyway and see it through no matter what" he's not just talking about defending a black man against institutional racism - it's one of those lessons that should guide all of us through our lives. You rarely win . . . but sometimes you do. 

The actor I watched last night captured the essence of Atticus Finch perfectly. He was a fictional man who was just as conscientious helping a man with with is property problems as he was zealously defending a client charged with a heinous crime - the type of behavior that all non-fictional attorneys should aspire to emulate. 

Harper Lee taught us that it's a sin to kill a mockingbird. She taught us that there is a higher truth, a moral compass that we as a society are expected to follow. But she also showed us that this "moral compass" doesn't work on its own - it requires brave men and courageous women to always be on hand to keep that compass pointed towards true north . . . and that this can often be a thankless task.

Atticus' task was thankless, but part of what makes this play so fantastic is how it makes it clear that Atticus will do his duty regardless of any recognition. But if you look close, you can still find it. Nothing sums up this sentiment more than the line "we're paying the highest tribute you can pay a man. We trust him to do right. It's that simple."

Photo by Joan Marcus

The criminal justice system works, when it works, because we trust good men and women to do right. It really is that simple. Prosecutors, judges, defense attorneys, victim's advocates, probation officers - all will make mistakes on occasion, because they are human, but while we cannot expect everyone to be as unerringly deserving of the "highest tribute" that Atticus Finch earned, we need to understand that as long as the players in the system understand their duty, in their hearts, they system will work as well as any human-designed system is capable of working. We will never have enough Atticus Finches, or enough Sheriff Tates, or enough Judge Taylors - and when we find them, we need to make sure we are paying them the "highest tribute" by trusting them to do right.

That's the lesson I learned from To Kill a Mockingbird, and the lesson that was demonstrated so clearly last night at the Guthrie. The system has failed before, and it will fail again, and sometimes it does seem like only the children weep over the injustice of it all . . . but in the background, every day, the same men and women of conscience go back to work, ready to do what they can to keep the system on the rails. 

A final thought, one that struck me hard enough last night to stick with me in the morning (Lee tells us that "things are always better in the morning" which, sadly, isn't always true). When Scout was having difficulty understanding why Atticus was putting forth his best effort in a case he was expected to lose, she questioned her father's moral compass, noting that "most folks seem to think they're right and you're wrong."

Atticus responded with another gem of wisdom: "They're certainly entitled to think that, and they're entitled to full respect for their opinions . . . but before I can live with other folks I've got to live with myself. The one thing that doesn't abide by majority rule is a person's conscience."

Yesterday, before I got dressed up and took my wife to see a play, a majority of the Minnesota Supreme Court killed a mockingbird. Today, the criminal justice system in Minnesota is a little less brave and a little less courageous - a little less like Atticus Finch. Alan Pendleton will undoubtedly continue to be an incredible asset to the Minnesota bar despite yesterday's events; it is my sincere hope that the Minnesota bench recovers from yesterday's setback just as quickly. cus


Minnesota DWI Policy: Don't Drink and Drive - Do Drugs Instead!

Think about the public policy implications of the latest development in Minnesota’s DWI law debacle.

Under the Implied Consent Law, a warrantless breath test is legal for DWI suspects, but breath tests only detect alcohol.

The state needs urine or blood to test for other substances that cause impairment.

We’re still waiting to see which way the wind blows on urine testing, but finally the Court of Appeals agrees with the Constitution: DWI blood tests require a warrant.

I’m sure the alcohol lobby will get right on this and set things straight.

In the meantime, if you want full constitutional protection when you drive in Minnesota, drugs are fine…just stay away from the booze.