Sun Still Came Up the Next Day

Football season is here and the Minnesota Vikings are 2-0!  While Vikings fans are very happy now, it was only 23 days ago that Teddy Bridgewater, our starting quarterback, went down with a gruesome injury during practice.  The team was so devastated that Coach Mike Zimmer actually cancelled practice and told everyone to go home.  The devastation was palpable; a once promising season was lost before it began. Zimmer held a press conference that day and said his team would not lay down and feel sorry for themselves, they will continue to fight.  He also mentioned his own life experiences with setbacks and personal loss: “Hey, my wife passed away seven years ago, right? It was a tough day, the sun came up the next day, the world kept spinning. People kept going to work. That’s what we’re going to do.”  That is what the team did and it is how they have started the season so well.

What does any of this have to do with DWI defense?  Simply put, the defense bar had a similar situation after the United States Supreme Court partially ruled against our position in the Bernard/Birchfield decision.  This was the most promising challenge to Minnesota’s DWI laws that had been formulated in quite some time.  And it made it all the way to the United States Supreme Court.  We were excited about the prospect of the highest court in the land telling Minnesota it could not criminally charge a driver for refusing an unwarranted test (essentially simply exercising their 4th Amendment rights).  Unfortunately, SCOTUS did not give us the complete victory we were looking for, especially in breath test cases which make up the vast majority of DWIs in the state.

The defense bar was certainly disappointed in this decision and many attorneys were left wondering, what defenses are left.  As Zimmer said, the sun still came up the next day and defense attorneys kept going to work.  Now, in this post-Bernard/Birchfield world, good DWI defense attorneys have developed new challenges to defend DWIs that have resulted in great results for their clients.

Our newest associate, Jay Adkins, is one of these attorneys.  Just last week, Jay has had two DWIs reduced to careless driving charges, prevented one client from ever losing his license, and got another DWI dismissed outright. 

While things did not look good after the Bernard/Birchfield decision, the sun came up the next day and good lawyers went back to the drawing board and kept fighting.  This is the type of representation the Ramsay Law Firm prides itself on and commits to each and every one of our clients.

Minnesota's Prescription DWI Drug Laws Can Snare Even Innocent Conduct

A 37-year veteran of the Minnesota Attorney General’s Office and staunch proponent of aggressive DWI laws may have been guilty of breaking Minnesota’s DWI laws without even realizing it. His story highlights the absurdity of Minnesota’s prescription drug DWI laws, a story about Minnesota’s Prescription Drug DWI Laws that we've discussed here in the past.

Here's what you need to know: It is a crime to drive a car in Minnesota with schedule I or II narcotics in your system – 

     1.     even when you have a prescription, and

     2.     even when you are not impaired in any way.

Lucky for Minnesotans, the Legislature realizes that this is absurd – that’s why it is an affirmative defense to the criminal charges to prove that you had a valid prescription.

However, the Legislature missed the boat on one key point; even with a valid prescription, you will still lose your license if you have any of a wide variety of prescription drugs in your system. See our previous blog post about DWI-Drugs for more about the law (but that’s not required reading). But here are the two relevant statutes:

The crime of DWI includes:


It is a crime for any person to drive, operate, or be in physical control of any motor vehicle… when: (7) the person's body contains any amount of a controlled substance listed in Schedule I or II, or its metabolite, other than marijuana or tetrahydrocannabinols.


Minnesota Statute, Sec. 169A.20, Subd. 1 (emphasis added).

The law also requires the Commissioner revoke one’s license to drive for the same conduct:

[T]he person submitted to a test and the test results indicate … the presence of a controlled substance listed in Schedule I or II or its metabolite, … then the commissioner shall revoke the person's license or permit to drive….

Minnesota Statute, Sec. 169A.52, Subd. 4(a) (again, emphasis added)

The Road to Hell is Paved with Good Intentions

Want a concrete example of how crazy these current DWI laws are? Last week during a Minnesota DWI Task Force meeting Joel Watne, the retired assistant attorney general we referenced at the start of this blog, attempted to justify the current DWI prescription drug law by telling his own story. According to this story, Mr Watne underwent a surgical procedure and a doctor prescribed him a pain killer – “oxy,” I believe he said. Knowing that it was a crime to drive while having a Schedule II drug in his system and that he would lose his license, he described how a 37-year veteran of the attorney general’s office would make sure he was not breaking the law:

“I stopped taking the medication before I drove.”

Makes sense, right? Mr. Watne’s situation is not unique – thousands undergo routine surgery every year, and are prescribed pain medication. But here’s the thing: how could Mr. Watne know that the oxy was no longer detectible in his blood or urine? One member of the DWI Task Force pointed out that it is not only a crime to have the drug in his system, but it is also a crime to have a metabolite detected, and metabolites can stay in your system for days.

While it would be difficult to estimate the amount of time oxycodone (oxycontin®) would have been detectible in Mr. Watne’s blood or urine, we do know that as oxycodone metabolizes it can be found as morphine for a much longer period of time! (We’ve defended cases like this in other contexts, but the pharmacology is fascinating.)

The Rest of the Story…

The irony is this: Mr. Watne would never intentionally do anything to violate the law, particularly Minnesota’s impaired driving laws – he was partly responsible for drafting many of them. But he may have very well violated them, despite the best of intentions, and without ever posing any risk to himself or others.

If Mr. Watne continues this behavior he could find himself involved in a traffic accident someday with dire consequences. If officers see a prescription bottle and Mr. Watne is a bit dazed (from the accident), they could force him to submit to a blood or urine test that exposes a controlled II prescription drug in his system, either some form of oxy, or (even worse) morphine . . . which he did not even take!

He would need a hell of a good attorney and a forensic expert to help him prove he took a pain narcotic in accordance with his prescription that metabolized into morphine, and he was not impaired. If successful we might be able to get Mr. Watne acquitted of criminal charges, but under the current law, it would be impossible to save Joel Watne’s driver’s license 

Could Joel Watne one day be our client? Unless and until the Legislature changes the absurd consequences of our DWI law, and allows drivers to at least try to provide proof of a valid prescription to defend against a license revocation, the chance exists.

Metrology 3.0: Science as Your Best Defense

I want to bring a scientific challenge to a DWI case of mine,  how do I do it?  This is a question we have received a lot lately from other defense attorneys.  Unfortunately, the only answer to that question is to learn the material.  We have posted numerous times explaining the games the BCA will play on the stand and how the State will attempt to hide the uncertainty of measurement and bias.  

In order to make an effective challenge, the lawyer needs to know the scientific material as well as, if not better than, the BCA.  This means that when the BCA's forensic scientists say or do something that does not fit the scientific community's standards, you need to be able to reference the authorities in the field and discredit the BCA's claim or procedure. (As one of my law school professors would say, "wack em over the head with it.")

The good news is that the National College For DUI Defense is putting on an entire seminar on the subject with some of the leading authorities scheduled to speak.  In fact, one of the presenters has actually been used by our firm in Minnesota DWI cases.  And, of course, I can't forget to mention that Chuck Ramsay will also be presenting.  OH GOOD FOR YOU!

The title of the seminar is "Metrology 3.0: Science As Your Best Defense."  It will be held on November 4-5 in beautiful San Diego!

The complete agenda and link to register can be found here.

Judge Throws Out Breath Test Results - Finds Results Are Not Scientific

Yesterday another judge tossed the DWI test results in a civil, implied consent hearing. In doing so our client’s license revocation was reduced to just 1/12 of the duration and avoids the dreaded “whisky plates” entirely.

Our client (“Mr. N”) was stopped by the White Bear Lake Police Department for driving violations. The officer arrested him for suspicion of DWI and took Mr. N to the police station where he submitted to a breath test. The test, conducted on Minnesota’s DataMaster (DMT) breath test machine, produced alcohol results of .173 and .168. Mr. N had no previous DWI incidents, but because the DMT results were over .16 the state charged Mr. N with a Gross Misdemeanor DWI, revoked his license for 1 year without the possibility of a work permit (ignition interlock permitted), and impounded his license plates.

After Mr. N hired our law firm the prosecutor dismissed the .16 Gross Misdemeanor charges and our client pleaded to a reduced DUI charge. The matter was then set on for hearing to determine the length of the driver’s license revocation and whether Mr. N’s license plates should be impounded.

At the implied consent hearing the Commissioner of Public Safety called the arresting officer and breath test operator to the stand. We called an metrology expert to testify. The attorney general declined to call an expert in rebuttal, despite the fact a forensic scientist from the Minnesota Bureau of Criminal Apprehension’s (BCA) breath testing section was in the courtroom and ready to testify.  

The judge heard the testimony of the officer and the expert witness and ruled the Commissioner had failed to demonstrate that the testing method was valid, reliable, and accurate. The court wrote:

“Although the BCA complies with most, if not all, of the other essential elements of measurements required by ASCLD, … the DMT used to administer the test on [Mr. N] was not measured for [test] uncertainty and therefore it is impossible to be sure that it would ensure a reliable result.

Petitioner accurately argues that the unfitness for purposes of using the breath test reports generated by the machine is clear: the Court is required to evaluate the accuracy of the measurements being presented to it, and in doing so be able to accurately determine if the measurements are capable of proving that a driver's breath alcohol concentration was at or above a very precise threshold. This Court agrees with Petitioner in that without knowing how accurate these results are, such a step is impossible. A reliable, trustworthy reading is necessary because Petitioner's privilege to drive a motor vehicle are affected by the reading obtained.”

You can download the entire redacted order here.

This is not the first Ramsey County judge who has made such findings. Last month another judge found the breathalyzer results to be unscientific for similar reasons.

This case demonstrates that judges are willing to take their “gate keeper” role seriously, and will suppress DWI breath tests when the DataMaster fails to produce scientifically valid, reliable and accurate results. 

Daniel Koewler In The News: "Okay Boys, Let's Take Some Pictures"

The Ramsay Law Firm--specifically Daniel Koewler-- has once again made the news!  This time it was to discuss our recent victory at the Minnesota Court of Appeals (Janssen v. Commissioner of Public Safety) in the Minnesota Lawyer. Koewler, who argued the case at the Court of Appeals, discussed the opinion and its significance.  

Koewler is cited as saying the opinion is just as "consequential [as the Bernard case] but for very different reasons."

What reasons?  Well, this holding opens the door for drivers to challenge the taking of their driver's license and license plates based on a breath test of at least twice the legal limit (0.16), or more.  These challenges are often based upon scientific principles such as measurement uncertainty, incorrect application of the machine's bias, and even ketones in the breath of diabetics improperly affecting test results.

It is imperative, under due process, that drivers be allowed make these challenges to test results of 0.16 or more.  As Koewler states in the Minnesota Lawyer, "based on [the BCA's] data, anyone who is up to .09 might not be above .08 and that range gets broader the higher the alcohol threshold." Therefore, a test at or near the .16 line is subject to more uncertainty and bias then a test at the .08 line.  Now, we will finally be allowed to litigate these issues in court and show judges around the state that these test results are scientifically invalid and unfit for the purpose of revoking a driver's license.

Victory at the Court of Appeals

The Ramsay Law Firm just scored a major victory that will affect thousands of DWI cases and driver's license revocations each year. 

Earlier today the Minnesota Court of Appeals issued a published opinion in Janssen v. Commisioner of Public Safety and reversed a district court order in an Implied Consent case.  The district court judge had ruled that whether a test was accurately evaluated at or above the aggravated threshold level of twice the legal limit (0.16), was not a proper issue in an Implied Consent hearing.  In reversing, the Court of Appeals read the statutorily provided defenses together and found that because one can challenge the evaluation of a test result at the 0.08 level, one may also challenge the evaluation of a test result at the aggravated (0.16) level.

As you may suspect, this case and its holding are related to measurement uncertainty and scientifically based challenges to the validity of breath tests in Minnesota.  

Check back later this week as we will post further analysis and consider some of the implications of this decision.


Brady Violations and "My Cousin Vinny" Revisited

Earlier this week, we used a memorable scene from "My Cousin Vinny" to discuss Brady violations.  As a recap, prosecutors must provide their evidence to the defense, especially when the evidence favors the defendant.  And, like all good subplots, the issue must reoccur during the climax of the movie.  What is interesting is that the recurring subplot in "My Cousin Vinny," is very similar to the response we received from our last post.  Let's discuss:

We left off when Vinny obtained the prosecutor's file.  With all the information, Vinny was able to cut against state's evidence and the witnesses' credibility.  One witness had significant eye issues, another had an obstructed view of the incident, and another provided an incorrect timeline. ("Are you sure about that 5 minutes?")  

Just before the state rested its case, Vinny received a late night phone call from the prosecutor--or as Minnesota hockey fans know him, Coach Reilly from "The Mighty Ducks."  The prosecutor informed Vinny that he has just obtained some new evidence that he will present at trial tomorrow.  When Vinny contests that he has not been given notice or an opportunity to view the evidence, the prosecutor tells Vinny "I just got the evidence myself," and the judge will have to let it in.  This is where a parallel can be made with the response we received after our most recent post. And, for the record, the prosecutor was right; the judge let the evidence in over Vinny's "lucid, intelligent, well-thought-out objection."

Since Monday, Prosecutors have reached out to us and informed us that, while they do not disclose the measurement uncertainty in DWI cases, they have never been given that information from the BCA, so they couldn't disclose it even if they wanted to.  However, this does not absolve prosecutors' obligation to provide and discover this information. 

In Kyles v. Whitley, the United States Supreme Court looked at a potential Brady violation and stated that prosecutors' obligation extends to any information known to "others acting on the government's behalf in the case." This obviously includes police and any person or entity that aids the state in obtaining evidence.

In DWI cases, the Minnesota BCA is absolutely working on the government's behalf.  They provide and maintain the DMT testing machines, certify the correct operation of the DMTs, train officers on how to operate the DMTs, and defend the test results in court.  Simply put, without the Minnesota BCA, the state would not be able to convict anyone for driving with an alcohol concentration of .08 or more.

Because the BCA works hand-in-hand with the state on DWI cases, any defense-favorable evidence they possess must be given to the defendants.  If they do not provide the information to the prosecutor, it is the prosecutor's obligation to seek it out.  This includes measurement uncertainty which shows a .08, or even .09, test result does not mean the driver's alcohol concentration was actually .08 or more.


"He's Not Allowed Any Surprises."

Most have seen the 1992 comedy "My Cousin Vinny," starring Joe Pesci and Marisa Tomei.  It follows a New York attorney (Pesci) in his attempt to defend his wrongfully accused cousin in a Alabama court. Many remember this movie for the funny courtroom scenes and Tomei's great performance; but, what many do not know is that this film discusses some correct points of law, which brings me to the subject of this post: Brady violations.

In the movie, Pesci's character, Vinny, is anxious about the upcoming trial so he decides to go hunting with the prosecutor to see if he can use his charm to get some inside information on what evidence the state has.  Vinny boastfully returns from the hunting trip with a complete copy of the prosecutor's file.  Just when Vinny is feeling pretty good about himself, his fiancé, Mona Lisa Vito (Tomei), who spent the day reading about the law, sets him straight with this memorable line:

"He has to, by law, you're entitled. It's called disclosure, you d#@$head! He has to show you everything, otherwise it could be a mistrial. He has to give you a list of all his witnesses, you can talk to all his witnesses, he's not allowed any surprises. They didn't teach you that in law school either?"

Ms. Vito is correct.  Under the Minnesota Rules of Criminal Procedure the state must show the defense its evidence and notice of witnesses.  Furthermore, under Brady v. Maryland (Brady for short) prosecutors must disclose material evidence which shows, or could show, the defendant might be innocent.  Violations of this rule have been coined "Brady violations." and the remedies can be quite significant.  Just last week, a potential Brady violation led to multiple convictions of serious felonies being remanded back to the district court for further litigation.  You can view that opinion here.

The problem is Minnesota prosecutors are violating this well-understood rule of law in most DWI cases. We previously told you that the Minnesota BCA has started to reveal its measurement uncertainty and how this shows a .08 test result does not mean the true alcohol concentration is over .08. Unfortunately, the measurement uncertainty is not on the test results themselves and are not included in the files traditionally sent to defense attorneys as part of disclosure.

What's the big deal?  Well, the measurement uncertainty shows that a defendant charged with driving with a BAC of .08 or more, may actually be innocent based on the inaccurate test result.  This is material information the defense must be informed of.  Keep in mind that most people do not follow legal developments and take the test results on face value.  "If it says I am .08, I must be .08"  This incorrect thought process leads thousands to plead guilty to a crime they are not actually guilty of.  Withholding the measurement uncertainty cleanly fits the description of a Brady violation and it happens in most DWI cases.

Balancing Beam Fail: Judge Finds Minnesota Breath Tests Unreliable and Inadmissible Under Rules of Evidence, But Admissible Nonetheless

Ramsay Law Firm scored a major victory recently when a Ramsey County Judge ruled that Minnesota breath tests lack scientific methods that ensure reliability. This major finding led the Judge to rule that the breath test results are inadmissible in a criminal trial under the Minnesota Rules of Evidence.  

While such a ruling would make one believe that the test results simply cannot be admitted into evidence, that was not the case here as the Judge pivoted and did her best balancing beam impersonation.  She attempted (unsuccessfully in our eyes) to balance the requirements of all scientific evidence in the courtroom and the legislature's unyielding desire to admit the test results, no matter what.  The holding boils down to this: in the Judge's eyes, regardless of how unreliable the test results are, or what the Minnesota Rules of Evidence demand, Minnesota Statute 634.16 makes the test results admissible, period.  Carefully crafted Rules of Evidence be damned!  

We obviously agree with part of the Judge's ruling and will now shift our focus to advocating for the correct application of the Rules of Evidence.  Check back often for more updates.

Fox 9's Ted Haller recently ran a report on this ruling, which you can view here.

Final Briefs Submitted in Trahan and Thompson

We recently witnessed significant upheaval in the area of DWI law (again). If you missed it, the United States Supreme Court found portions of Minnesota's DWI Test Refusal law unconstitutional. Specifically, it is no longer a crime for a driver to refuse to submit to a blood test after being arrested for DWI (now, if the police have a warrant, that's another matter . . .)

But blood tests are not the only tests given in Minnesota -- we are one of the very few states that still use urine alcohol testing. While the U.S. Supreme Court did not directly address whether or not it is constitutional to refuse to submit to a urine test (note: they did reverse one of our client's convictions that was based on a urine test) the issue is about to be decided by the Minnesota Supreme Court

We held oral arguments on Thompson (which will decide if drivers can legally say "no" to warrantless urine tests) in the beginning of June, and if you're really that interested you can watch the oral arguments here

But the reason for all that background is this: after the Bernard decision came out, the Supreme Court ordered "supplemental" briefing in Thompson  -- basically, an opportunity for all the attorneys to adjust their arguments to take into account these recent legal developments.

Wanna read those supplemental briefs? If so . . . here you go. Note that these are just for the Thompson (urine refusal) case . . . we'll get you the Trahan (blood refusal) supplemental briefs shortly. Enjoy!

The State's Brief

Our Brief

The ACLU Amicus Brief

Minnesota Attorney General's Amicus Brief