Minnesota Rulemakers, You Got Some 'Splainin' To Do

Yesterday I posted about my client, “Kate,” whose minor traffic violation metastasized into criminal charges for DWI and gross misdemeanor test refusal. Everyone agrees that Kate didn't refuse to test, but she was physically unable to provide a sufficient sample of breath or urine.

Several seasoned attorneys reached out to me to suggest the affirmative defense of “physical inability” in rule 7502.0430:

Failure of a person to provide two separate, adequate breath samples constitutes a refusal, unless the failure is the result of physical inability to provide a sample, in which case a sample of blood or urine must be provided by the person.

Guess what? That rule no longer exists. The Department of Public Safety repealed the rule years ago without telling anyone.

It sounds Orwellian, but it’s real, and it happens all the time.

Normally when the government wants to change a rule—especially a rule that could mean the difference between a gross misdemeanor conviction and a dismissal—it has to provide the public with notice and an opportunity to be heard. That is due process.

In this case, with the “physical inability to provide a sufficient breath sample” rule, DPS decided to skip due process in favor of the expedited process for permanently changing agency rules without holding a public hearing.

From the Minnesota State Register, Monday, May 2, 2011:

Minnesota Department of Public Safety (DPS) and Bureau of Criminal Apprehension (BCA)

Notice of Intent to Adopt Expedited Rules without a Public Hearing

7502.0430 [REPEALED]

Just change the rule when nobody's lookin', and presto! No more physical inability defense! Can’t blow hard enough or pee on command? You’re guilty of a gross misdemeanor. Call me crazy, but I’ve got a problem with that. (And I imagine Kate will too.)

If you read our blog regularly, you’ve probably noticed that I put our Constitution on a pedestal (where it belongs, dammit). If freedom were a religion, the Constitution would be its sacred text, and due process would top the list of commandments. In order for democracy to work, government must remain transparent and accountable to the people it serves. In my humble opinion, Minnesota government’s got some ‘splainin’ to do. 

Collateral Consequences: A Pound of Prevention for an Ounce of Cure?

I recently appeared with a client at her arraignment for 3rd degree Test Refusal and 4th degree DWI. I’ll call her Kate. Kate had never been in trouble before, and she was terrified. She had already borrowed money from her family to retain our firm, and just the thought of jail time and paying thousands of dollars in fines and fees as a consequence of a possible DWI conviction was overwhelming to the point of tears.

Even the prosecutor agrees that Kate didn’t willfully refuse to take an alcohol concentration test. Kate was pulled over for a minor traffic violation. Police records show that she was asked to take a breath test, and she took one, but the machine rejected the sample. She was asked to provide a urine sample, and she tried, but she didn’t have to pee. In Minnesota, that's a crime.

Kate’s inability to give breath or urine is a gross misdemeanor crime. That means up to a year in jail and a $3,000 fine, plus all of the rigmarole involved in begging the Department of Public Safety to not revoke Kate’s license so that she can drive to work and school. And—Kate’s primary concern—a permanent, public criminal record.

65 MILLION American adults have a criminal record. (Out of a U.S. 18+ population of approximately 245 million.)

For this quarter of our adult population, the number and breadth of collateral consequences of a criminal conviction, or "collateral sanctions" as they're called in Minnesota, is astounding. 

There are more than 44,000 non-criminal, collateral consequences of criminal conviction in the United States: voting rights, housing, employment, licensing, adoption, federal student loans, the list goes on and on.

And yet we know that most recidivism occurs within three years of an arrest, and almost certainly within five years. 

How could I possibly explain to Kate why she is facing a lifetime of collateral consequences for allegedly failing to stay in one lane, not blowing hard enough, and not being able to pee on command?

I couldn't explain it. All I could say was "we’ll do our best to make sure you don’t ever have to face those consequences.”

Chuck Ramsay Joins Faculty of National College for DUI Defense

In Atlanta, Georgia, on November 6th and 7th, 2015, our very own Chuck Ramsay will take the stage to teach nationally-known trial attorneys the science of chemical testing, and how to use it in court.

Specifically, Chuck and Dr. Jimmie Valentine will explain calibration, including why single point calibration is about as scientifically rigorous as jello on a grill. Then Chuck will demonstrate the witness examination techniques he's known and envied for: surgically precise questions that bring the State’s experts to their knees, and juries to their senses.

Joining Chuck at the podium will be:

Ted Vosk (Conference Moderator and Living DUI Legend) (pictured below)

as well as 

Janine Arvizu (Traceability)

Peter Johnson (Traceability)

Dr. Jimmie Valentine (Calibration)

Dr. Ashley Emery (Measurement)

Joe St. Louis (Standards and Accreditation)

Chester Flaxmayer (Standards and Accreditation)

Mike Nichols (Uncertainty)

Dr. Andreas Stolz (Uncertainty)

Howard Stein (Science and Law)

Rod Frechette (Science and Law)

Here at Ramsay Law, we’ve got DUI defense down to a science. 

Follow this link if you are interested in attending:

Science as Your Best Defense II: Learning to Teach Judges and Juries the Science and Law of Blood and Breath Alcohol Testing

National College of DUI Defense

November 6-7, 2015 

Atlanta, Georgia

ncdd.com

A Titillating Conversation About Equality

Today marks the eighth annual nationwide “Go Topless Day.” Women around the country are baring their breasts in a show of solidarity for gender equality.

As long as men are allowed to be topless in public, women should have the same constitutional right. …

Men fought for their rights to be bare chested in public back in the 1930’s and won! It is time for women to achieve the same RIGHTS. Skin is skin.

Under Minnesota state law, and Minneapolis city ordinance, it is a misdemeanor offense for women to go topless in public. There is no such law on the books for men. Such disparate treatment is a legitimate constitutional issue; the Fourteenth Amendment prohibits discrimination on the basis of gender.

Individuals on both sides of this issue are gathering at 4 p.m., at Gold Medal Park in Minneapolis, for what is sure to be a titillating conversation about gender equality and constitutional rights.

All guffaws aside, here at Ramsay Law Firm, we take the Constitution seriously. We would gratefully accept the opportunity to provide pro bono representation to any women arrested at today’s event for asserting their constitutional right to gender equality. 

Minnesota Adopts Good-Faith Exception to the Exclusionary Rule . . . Long Live the Exclusionary Rule!

http://tav.espians.com/assume-good-faith.htmlToday the Minnesota Supreme Court issued a long awaited decision on whether or not to adopt the “good-faith” exception to the Fourth Amendment exclusionary rule. In a 4-3 decision, the Court did decide to adopt the good-faith exception, over the dissent of three justices. The case was State v. Lindquist and you can read it yourself here.

What does this mean? Here’s a brief primer: Normally, when law enforcement agents violate a person’s constitutional rights, any evidence obtained as a result of that violation is suppressed. The “Exclusionary Rule” is what judges use to suppress the evidence – illegally obtained evidence is “excluded” from use at trial, no matter how powerful or crucial the evidence is to the State’s case. One of the main reasons for such a rule is to motivate law enforcement agents to not violate the Constitution, knowing that if they do, the evidence they obtain is effectively useless.

The good-faith exception, at its heart, is designed to bypass the exclusionary rule in situations where law enforcement not only didn’t know they were breaking the law, but actually thought they were following it. In State v. Lindquist, the officers executed a warrantless search of the driver’s blood, and didn’t bother to get a warrant . . . because, at the time, Minnesota law said they never needed to get a warrant in DWI cases. In 2013, the United States Supreme Court struck down Minnesota law and said it was unconstitutional . . . but the blood draw in the Lindquist case happened in 2011.

So today, the Minnesota Supreme Court decided that even if evidence is obtained illegally, it can still be used in court (and not be excluded) if (and only if) law enforcement were only following the clearly stated law at the time. The Court concluded that if the police think they are following the law, suppressing/excluding evidence simply won’t deter any constitutional violations, because “any error rests with the judges and not the police.” Make sense?

The bigger question, of course, is “what does this mean?” In the DWI context, it actually means very little. The good-faith exception only applies to “objectively reasonable reliance on binding appellate precedent.” This is a pretty narrow exception. For example, it applies to cases where a clear cut rule was in place (like in 2011, when the single-factor exigency rule meant that no warrants were necessary in DWI cases). But today, there is no clear cut rule in DWI cases – the overwhelming majority of blood, breath, and urine tests are still being taken without warrants, but the only “rule” is that judges need to analyze law enforcement’s behavior under the “totality of the circumstances.” That’s not a rule, that’s a broad, broad guideline, and if Minnesota’s laws get overturned again by the United States Supreme Court, a lot of cases are going to get thrown out of court regardless of our new “good-faith exception.”

We could write a small novel about the Lindquist decision, but we won’t (at least not today). The case addressed a lot of issues dealing with Minnesota’s Constitution, federalism, and as is typical lately, it contained a very spirited dissent. If you’re inclined, give the case a read. If not, stick around, as we’ll be addressing some of those interesting (but less practical) concerns in future blog posts. 

Breaking It Down - One CJI Session at a Time

Today and tomorrow, the crème de la crème of the Minnesota criminal justice world converges on St. Paul RiverCentre for the annual Criminal Justice Institute.

Presenters include:

Chief Justice Lorie Gildea

(electronic filing, courthouse security, and courtroom cameras)

 

Chief Judge Peter Cahill

(court rules and technology update)

 

 

Attorney Ryan Pacyga

(the entrapment defense)

 

 

Hennepin County Sheriff Richard Stanek

(citizen participation and oversight to improve police-community relations – panel discussion)

 

 

Senator Julianne Ortman

(reforming Minnesota’s probation system)

 

 

Colorado Sheriff Bill Masters

(legalization of marijuana)

 

 

Attorney Chuck Ramsay

(uncertainty of measurement – the soft science of Minnesota’s DWI test reporting process)

 

 

Attorney Dan Koewler

(custodial searches and the nature of “consent”)

 

 

The annual CJI conference is a hotbed of legal networking, strategy sharing, note comparing, and collaborative preparation for the future of criminal justice in Minnesota. Be there, or be square.

Separating the Men from the Boys

Let’s separate the men from the boys. And the women from the girls, ahem.

What really sets Ramsay Law Firm apart from other criminal defense firms?

Science.

Only an attorney who’s spent time in the lab, who’s worked with the testing instruments, and who is familiar with testing processes and protocols can explain to a jury, in layman’s terms, how scientific evidence was generated, and what the test results really show.

As you read this, our fearless leader, Attorney Charles “Chuck” Ramsay, is in a state-of-the-art forensic lab in Chicago, analyzing blood, urine, hair, saliva, and other biological samples for drugs.

Chuck is logging three full days at Axion Analytical Labs:

  • Day 1: Instrumental Analysis

Qualitative and quantitative instrumental analysis (understanding testing devices and processes, and the reliability and accuracy of test results);

  • Day 2: Pharmacology (how drugs affect living organisms)

Pharmacokinetics (the study of the time course of drug absorption, distribution, metabolism, and excretion); and

  • Day 3: Pharmacology

Pharmacodynamics (the effects of drugs on behavior, and the mechanism of their action).

Here at Ramsay Law Firm, we understand that:

If you want to make sure that justice happens in the courtroom, you have to understand the science at least as well as the scientists presenting it.
                                                                         - Justin J. McShane, JD, F-AIC 

If there is a scientific issue in a case, we’ll find it.

When other attorneys need help with science, they call us.

We have specialized scientific training, and we know how to use science to help our clients win in court.

Can your attorney say that?

 

Blog Watch: Judicial Training & Education Blog

 

We pride ourselves on bringing timely and knowledgeable information to our readers on a regular basis. Our readers include clients (both current, former, and potential), other defense attorneys, judges, and even prosecutors. We focus on DWI defense because that’s the area of law we love most, and where the most interesting legal issues (and defenses) arise.

But criminal law is a broader area that just DWI defense, and today we’re bringing up another blog worth checking out. Judge Alan Pendleton is a very well-respected judge out of the Tenth District, and one of the things that sets him apart from other judges is his very own Judicial Training and Education Blog. If you practice as a defense lawyer and have not seen this blog . . . you don’t know what you’ve been missing. Of particular note are Judge Pendleton’s numerous Judicial Training Updates, which provide both a cheat sheet and a roadmap to many procedures used by criminal defense attorneys on a regular basis. Here’s one example of the difficult-to-master procedure for entering a Lothenbach “plea.”   

Why are we talking about someone else’s blog? Well, The Expert Institute out of New York is putting together the “2015 Best Legal Blog Competition” and Judge Pendleton’s own blog was invited by the Institute to participate in the “Education” category. This would be a good time for anyone who likes the Judicial Training and Education Blog to head on over to the Blog Contest Page and nominate a very worthy resource.

Here’s what you need to do to nominate a blog:

1.    Go to https://www.theexpertinstitute.com/blog-contest/ and scroll to the bottom of the page

2.    Enter your name and email address

3.    Enter the blog address (www.PendletonUpdates.com).

4.    Select the blog category as “Education”

5.    You can (and should) enter a short statement of why the blog deserves to be nominated. Here’s a short description of the Judicial Training and Education Blog:

 

This blog is the official repository of the "Judicial Training Updates" which are designed to be short, concise, easy to read judicial tips that every judge and attorney should know. Many of the updates are designed for use "in court" by judges and attorneys as resource guides to ensure the making of a full and complete record. Many judges and attorneys bookmark the blog for easy access while in court. In addition, the blog also serves as a “one-stop” judicial resource library for judges, attorneys, and the general public.

If you've ever used one of Judge Pendleton's Judicial Updates, you know that his blog is certainly worth nominating. If you haven't . . .again, you don't know what you've been missing. Go fix that mistake as soon as possible. 

 

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Know Your Rights During A Traffic Stop

You are responsible for knowing your rights and legal obligations. 

Law enforcement has no duty to make sure you know your rights or the law. Don't be fooled by what you see in the movies.

During a traffic stop:

You have the following legal obligations:

  • If an officer orders you to stop, you must stop.
  • You must provide your driver’s license and proof of insurance upon an officer’s request.
  • You must wait for the officer’s permission to leave.

You have the following constitutional rights:

  • Under the Fourth Amendment, you have the right to refuse to consent to a warrantless search of your body, your personal belongings, and your vehicle, with one limited exception for officer safety: an officer may legally pat-down your body over your clothes, and search the area within your immediate reach, for weapons only, if she has reason to believe you may be armed and dangerous.
  • Under the Fifth Amendment, you have the right to refuse to answer questions that may incriminate you.
  • Under the Sixth Amendment, if the police take you into custody and detain you, you have the right to have an attorney present with you during questioning.

Here is what I would do to protect my privacy and constitutional rights during a routine traffic stop. This is not legal advice. When it comes to my legal rights, I don't rely on the internet, and neither should you. Every individual, every officer, and every situation is unique. Different states have different laws. Always consult a lawyer if you have questions about your legal rights or obligations.

  • Pull over and turn on the emergency/hazard lights. Turn off any music. Make sure all car windows are closed, and then open the driver’s side window enough so that you can speak with the officer, and hand her your documents if she asks to see them.
  • Turn off the car, and remove the keys from the ignition. Place the keys in your lap or on the center of the dashboard. (You may need them to close your driver’s side window if the officer asks you to step out of the car.) If you smoke, extinguish your cigarette.
  • If there are passengers in the car, tell them to remain calm and silent. Everyone in the car has the same constitutional rights you do.
  • If you have time to retrieve your driver’s license and proof of insurance before the officer approaches the car, do so. If not, wait until the officer asks to see it. (When retrieving documents, move slowly, and keep your hands in plain view.)
  • Before the officer arrives at the window, set your hands at 11 o’clock and 1 o’clock on top of the steering wheel. Remember: everything will be recorded on video by the squad car’s video camera, and possibly recorded by an audio and/or video recorder on the officer’s person.
  • Be polite, respectful, and calm at all times, no matter what. 
  • Greet the officer and ask her “Why did you pull me over, officer?"
  • Officers can’t legally pull you over without reasonable suspicion of criminal activity. They must have some reason to suspect a violation of the law. Once you’ve been stopped, officers have the right to investigate what they stopped you for. However, officers can’t expand their investigation without additional information to justify that expansion.
  • Do not offer information; there's no need for small talk. You do not have to answer a question just because an officer asks. Officers are trained to ask questions that will elicit additional information. You have no legal obligation to answer questions if doing so may incriminate you. 
  • Here are some common questions designed to get you to waive your 5th Amendment rights, with potential responses that protect and preserve your rights:

Driver X:  “Hello officer. Why did you pull me over?”

Officer:     “Why do you think I pulled you over?”

X:              “Why did you pull me over?”

O:              “Do you know how fast you were going?”

X:              “How fast was I going?”

O:              “Do you know what the speed limit is here?”

X:              “What is the speed limit here?”

O:              “Where are you coming from?”

X:              “Why did you pull me over?” or “Are you detaining me, officer?”

O:              “Where are you headed?”

X:              “Why did you pull me over?” or “Are you detaining me, officer?”

O:              “Have you been drinking?”

X:              “Why did you pull me over?” or “Are you detaining me, officer?”

  • If the officer persists in asking questions, ask “Am I free to leave, officer?”
  • If the officer says no, or keeps asking questions, you have been seized and you are being detained. You have the constitutional right to tell the officer “I invoke my 5th Amendment rights, and I refuse to answer any further questions without my attorney present." You must tell the officer that you are asserting your 5th Amendment rights; just remaining silent, without verbally asserting your rights, is not enough.
  • If the officer asks you to step out of the car, move slowly and keep your hands in plain view of the officer. Close your window, open your door, step out, close your door and lock the car.
  • If the officer asks to search anything—your mouth, your car, your luggage, your pockets—you have the constitutional right to refuse to consent to any searches.
  • If the officer places you under arrest, the officer has the right to conduct a “search-incident-to-arrest.” This search takes place during the arrest (at the same time and place where the officer says “I am placing you under arrest”). The officer may legally pat-search a person’s body for weapons and any evidence of the offense of arrest that the person could destroy if the officer did not confiscate it.
  • If officers continue to ask you questions, assert your 5th Amendment right to remain silent, and contact an attorney as soon as possible. Remember, everything is being recorded.

EXCEPTION IN MINNESOTA: ONCE AN OFFICER ARRESTS YOU UNDER SUSPICION OF DRIVING WHILE IMPAIRED, IF YOU ASSERT YOUR CONSTITUTIONAL RIGHTS, YOU WILL BE CHARGED WITH A CRIME.

IN MINNESOTA, IT IS A CRIME FOR ARRESTED DWI SUSPECTS:

- TO REFUSE A WARRANTLESS SEARCH OF THEIR BODY FOR BLOOD AND URINE;

- TO REFUSE A BREATH TEST;

- TO ASSERT THE FIFTH AMENDMENT RIGHT TO REMAIN SILENT; and

- TO ASSERT THE SIXTH AMENDMENT RIGHT TO THE PRESENCE OF AN ATTORNEY DURING QUESTIONING.

If you are concerned that your state provides different levels of constitutional protection depending on the alleged offense, contact an attorney.

Bad News For Hemophobiacs

Bad news for hemophobiacs:

The Eighth Circuit Court of Appeals just ruled that it is a-ok to arrest someone, haul her off to jail, and tell her:

We want evidence of the crime we think you committed, and we’re not getting a warrant. You submit to a blood draw right now, or you’re committing a new crime. If you don’t let us stick you and test the blood, you’re going down for the crime we arrested you for and the more serious crime of not giving us blood. So, what’ll it be?

Yep, according to 8th Circuit Chief Judge William J. Riley, the Minnesota law that forces DWI suspects to submit to a warrantless blood draw does not violate the Fourth Amendment. Wall v. Stanek, 2015 WL 4430495.

How is that constitutional? “Consent to search” is a judicially-created (and judicially-defined) exception to the Fourth Amendment of the Constitution. Apparently, in the 8th Circuit, whether an individual actually, voluntarily consents to a blood draw is irrelevant. Through some mysterious legal alchemy, by reading the Minnesota Implied Consent Advisory to a DWI suspect, the act of submission to a blood draw becomes “consent” to a warrantless search.

In other words, in the 8th Circuit, Fourth Amendment protection varies, based on the alleged offense. In the DWI context, submission is consent, and the court decides when a warrantless blood draw is reasonable. Chief Judge Riley "confirmed" that

society’s judgment [is] that blood tests do not constitute an unduly extensive imposition on an individual’s privacy and bodily integrity.

Really? I must’ve missed that Gallup poll. And the Supreme Court must’ve missed it too, because in 2013, in Missouri v. McNeely, the Court wrote that the

compelled physical intrusion beneath [the driver’s] skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation [is] an invasion of bodily integrity [that] implicates an individual’s “most personal and deep-rooted expectations of privacy."

At one point in Wall v. Stanek Chief Judge Riley wrote:

The real question at issue is whether the “search[ ]” was truly “unreasonable.”

No, the real question is:

Why is every branch of Minnesota government fighting so hard to find a way around the Constitution? GET A WARRANT.

And, there is a silver lining. This ruling brings us much closer to the inevitable constitutional correction the U.S. Supreme Court will make. The 8th Circuit just made a great case for granting certiorari in State v. Bernard.