Minnesota DWI Defense Blog : Roseville DUI Defense Lawyer & Attorney : Ramsay Law Firm : Minneapolis, St. Paul, Minnesota

Back in 2008, we strenuously argued in front of the Minnesota Supreme Court about a topic that directly impacted the lives of many of our clients - Minnesota’s practice of ignoring the Constitution and performing warrantless searches in nearly every DWI case. Ultimately, our Supreme Court ruled that a newly minted “single-factor exigency” doctrine meant that the Fourth Amendment did not apply to DWI suspects in Minnesota.

Fast forward to 2012, where the Missouri Supreme Court found otherwise in State v. McNeely. In a concise, but very well-reasoned order, the Court followed prior U.S. Supreme Court precedent in Schmerber v. California and held that, unlike the situation in Minnesota, a warrant is required to search DWI suspects in most cases. 

If you have any interest in Constitutional Law, read this decision. The Missouri Supreme Court did an excellent job of interpreting prior precedent and establishing a solid policy for the future - and did so by upholding the Constitution, rather than watering it down.

This decision impacts Minnesota law in two ways. First, it again emphasizes that our courts are divided on this question, which may convince the U.S. Supreme Court to step in and adopt the logic used in Missouri (which would overturn the current state of the law in Minnesota).

The second key feature of the McNeely decision requires us to look a little deeper. In a footnote, the Court noted that prior Missouri law required consent prior to a blood draw, and that if the driver didn’t consent to a test, then “none shall be given.” That key language was held to require warrants in most Missouri DWI cases - and that language was removed by the Missouri Legislature in 2010. Prosecutors then argued that without the “none shall be given” language, police were now free to perform warrantless tests on DWI suspects. Clearly, the Missouri Supreme Court felt otherwise.

What’s interesting about this is the fact that Minnesota has nearly identical language in its own Implied Consent Statute. Here, just like in Missouri prior to 2010, if a person refuses to consent to a test, then “a test must not be given.” However, Minnesota Courts have consistently refused to interpret this provision, sidestepping the issue in case after case, as if this language didn’t exist.

In Missouri, even prosecutors agreed that this type of language prohibited warrantless tests of blood, breath or urine. In Minnesota, this language has gone ignored - for years. Despite the Minnesota Supreme Court’s creation of the “single-factor exigency” doctrine, this legislative enactment should require warrants in nearly every DWI arrest. Perhaps this most recent decision from the highest court in the “Show Me” state will, in fact, show our state the correct way to protect the rights of DWI suspects.

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The Minnesota State Bar Association just named the top 25 legal blogs for 2011, and our own Minnesota DWI Defense Blog made the grade.

We started our blog back in April of 2008 as a way to educate lawyers, judges, and everyday citizens about the facts regarding DWI enforcement (as opposed to the many myths and misperceptions). Now, over three and a half years later, our blog is still going strong, and getting better every day.                                                                               

Ramsay Law Firm wants to thank all of you who check our blog regularly, and welcome those of you who are stopping by for the first time. Our goal has always been to be the best defense attorneys in Minnesota, and being informed is always the first step in a solid defense.

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Chuck Ramsay, of our own Ramsay Law Firm, was selected as a 2011 “Attorney of the Year” by Minnesota Lawyer. Selection for this honor was due to both his “leadership in the profession” (Ramsay routinely educates other attorneys on topics relating to criminal law) as well as his instrumental efforts as part of the Consolidated Source Code Trial Team.

This recognition is just the most recent in a long line of awards that Ramsay has received for his dedication to the practice of criminal law, and all of us at Ramsay Law Firm continue to wish him the best in the future. Ramsay will receive the Attorney of the Year award at a banquet held on February 23, 2012.

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Common indicia of intoxication include an odor of alcohol, bloodshot and watery eyes, slurred speech, and an uncooperative attitude . . . An officer needs only one objective indication of intoxication to constitute probable cause to believe a person is under the influence.

State v. Kier, 678 N.W.2d 672, 678 (Minn.App.2004) (Emphasis added).

Read the above quote from the Minnesota Court of Appeals. Ignore, for the moment, that the Court incorrectly describes both the odor of alcohol and bloodshot/watery eyes as “common indicia of intoxication” (because they are actually nothing more than indicia of alcohol consumption). Instead, focus on what those two sentences mean, because it’s scary.

In Kier, the Court was stating that anyone with bloodshot, watery eyes who gets behind the wheel of a vehicle is eligible to be arrested for DWI. The only conclusion that we can draw is that evidence of “bloodshot and watery eyes” must be so damning, so convincing, that its very existence renders a driver guilty. Surely such powerful evidence has a strong scientific foundation… doesn’t it?

Well . . . some organizations have actually spoken out about what conclusions can be drawn when an officer sees “bloodshot and watery eyes,” but they sure don’t support using the evidence to convict someone. The National Highway Traffic and Safety Administration (the organization that helped push the legal limit from .10 to .08) did a thorough study of impaired drivers in 1997. Because NHTSA’s goal was to instruct officers on how to detect and arrest drunk drivers, it created a list of eight “cues” that an officer could look for to help determine if a driver was impaired.

Guess what’s not on the list? If you guessed “bloodshot and watery eyes” you are correct. In fact, this “cue” was on the old list, and was actually removed from the list after NHTSA figured out that having bloodshot/watery eyes has as much to do with allergies and people working multiple jobs as with consuming alcohol. If a police officer based his or her decision to arrest on bloodshot watery eyes, the worst thing you can do is just accept that fact - you need to fight it.

The National Highway Traffic and Safety Administration has been telling peace officers - since 1997 - to ignore “bloodshot and watery eyes” as it pertains to allegedly drunk drivers. Yet six years later, the Kier Court was willing to say that this evidence alone was enough to authorize an arrest.

I have no reason to believe that the Kier Court was presented with the 1997 NHTSA study, or that it factored into that decision. That’s why, in my opinion, it would be malpractice not to offer this scientific study into evidence in every case where the State wants to introduce evidence of bloodshot, watery eyes. This study provides the scientific muscle a quality defense attorney needs to attack the longstanding (and incorrect) notion that bloodshot watery eyes are strong evidence that someone is impaired - and to get that evidence suppressed. The reality is that “bloodshot, watery eyes” is lukewarm evidence that someone might be suffering from allergies. . . and, to the best of my knowledge, that is not a crime in Minnesota.

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One common indicia of alcohol consumption is “odor of alcohol.” Nearly every DWI police report will start with a mention of this odor, usually as soon as the officer gets within five feet of an alleged drunk driver. And it won’t just be an “odor.” It will be further defined by the officer, usually as a “moderate” odor, sometimes a “strong” odor, and on special occasions as an “overwhelming” odor. Sounds like damning evidence, right? It is, unless (like us) you know exactly how to fight in DUI cases.

Minnesota’s appellate courts certainly believe so. One recent example comes from the case of State v. Koppi (Minn. 2011) where our own Supreme Court ruled in the driver’s favor, but did so in an interesting way. In the Koppi case, the officer (no doubt honestly) described the odor of alcohol as “slight.” The Supreme Court emphasized this characterization, noting that 95% of all drunk drivers exhibit at least a “moderate” or “strong” odor of alcohol (at least, according to the officer - a point we’ll revisit in a moment). The court ruled in Koppi’s favor largely because he only had a “slight” odor of alcohol.

Compare Koppi with State v. Nur (Minn.App. 2011), which dealt with the exact same legal issues . . . but had a dramatically different result. Although both cases involved DWI arrests, the officer in Nur’s case described his odor of alcohol as “strong.” When the court ruled against Nur, it emphasized the difference between a “slight” odor of alcohol and a “strong” odor, and adopted as fact the assertion that 95% of drunk drivers exhibit a “moderate” to “strong” odor of alcohol. In State v. Mahoney (Minn.App. 2011), another case with legal issues identical to those in the Koppi case, the court stated, “the deputy in this case testified that he smelled a “strong” odor of alcohol on Mahoney's breath. This evidence stands in contrast to evidence that Koppi had only a “slight odor of alcohol.” So, it’s clear that the courts put great weight on how strong any alleged odor of alcohol really is.

This just begs the question, “when a police officer describes an odor of alcohol as “slight,” “moderate” or “strong” do they have a scientific basis for doing so?” Put another way, when a person’s breath is described as having a “strong” odor of alcohol instead of “slight,” does that actually mean that the driver is more drunk? Does odor of alcohol provide any meaningful indication that someone is “intoxicated,” or does it just merely mean that they may have consumed alcohol?

A scientific study, supported by the Insurance Institute for Highway Safety and published in a peer-reviewed journal, quickly determined that odor of alcohol is a mostly useless indicator when deciding whether to arrest a driver for DWI. In fact, after conducting their study, the authors actually came up with this conclusion:

Odor strength estimates were unrelated to BAC levels. Estimates of BAC level failed to rise above random guesses.

This study confirmed - via the scientific method - what our attorneys have long suspected. An officer’s description of the odor of alcohol as “strong” is just as useless a fact as if the officer had called it “slight” or “overwhelming.” Someone who really is drunk will be described as having a “slight” odor of alcohol, while someone who is perfectly capable of driving will, as often as not, be described as having a “strong” odor of alcohol.

This type of evidence, which doesn’t even rise to the level of “random guesses,” should never be presented to a jury in a DWI case, and should not even be used to support probable cause to arrest. We continue to educate the courts about how useless this “evidence” really is, but until the day comes that we no longer read about the distinction between “slight” and “strong” when describing odor of alcohol, our only choice is to fight, and fight, and fight!

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The mere odor of alcohol about a driver’s person may be indicia of alcohol ingestion, but is no more a probable indication of intoxication than eating a meal is of gluttony.

Saucier v. State, 869 P. 2nd 483 (Ak. App. 1994) (emphasis added).

Whenever drivers are arrested for DWI, the police will write a report that describes the reasons why, in their opinion, the driver was impaired by alcohol. Nearly every officer will describe an “odor of alcohol” alongside other observations like “bloodshot, watery eyes” and “slurred speech.” Judges, prosecutors, and even some defense attorneys will incorrectly describe these observations as “indicia of intoxication,” implying that each of these confirms that someone is drunk. This could not be further from the truth.

At best, these “indicia” may reveal alcohol consumption – dramatically different that alcohol intoxication. While nobody can truly get drunk without first consuming alcohol, nearly everyone is able to have a drink without immediately becoming drunk. Yet, too often, many consider these “indicia of intoxication” as all the evidence necessary to provide probable cause to arrest a driver, or even to provide proof beyond a reasonable doubt to convict a driver.

How have these “indicia of consumption” (from this point on, I will never again refer to them as “indicia of intoxication,” and you shouldn’t either) gained such widespread use and credibility?

• Partially from common usage - every police report I’ve ever seen has described the arrested driver has having smelled of alcohol, while having bloodshot, watery eyes. Some will even “grade” the odor of alcohol (after the driver has already submitted to a test), describing it as “moderate” “severe” or “overwhelming” depending on the circumstances.
• Partially by acceptance by the courts - some judicial decisions are based largely on whether or not the arresting officer described the odor of alcohol as “moderate” compared to “slight.”
• But, in my opinion, these indicia of consumption have become so commonplace in the courtroom because defense attorneys have not done their job to attack them.

The attack starts by simply calling these observations what they are - indicia of alcohol consumption. By doing so, we also inform the court and the jury what they are not - indicia of alcohol intoxication. But these are just labels, and while labels have power, a true attack requires more muscle. And that’s where the use of hard science comes into play.

Too many attorneys try to use the “law” to trump the State’s “science.” That’s rapidly changing - nowadays, its far more important to fight science with science, and to shed light on government practices that have gone unchallenged for too long, convicting too many innocent drivers.

Coming up, we’ll discuss some of the most overblown and overemphasized indicia of consumption that find their way into the courtroom: Odor of alcohol, bloodshot/watery eyes, and some of the more ridiculous “field sobriety tests.” And then we’ll show you exactly how each and every one is refuted by hard science.

And finally, we’ll explain why this is probably the most important topic imaginable for the future of DWI defense in Minnesota.

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While we’re already preparing for future challenges to Minnesota’s new breath testing device, the Datamaster DMT, today was a day where our focus was squarely on the outdated Intoxilyzer 5000EN  (which is still being used throughout most of Minnesota).

The Source Code Coalition spent weeks preparing for today’s argument, capping an effort that took years of complex litigation and countless hours of legal wrangling. Derek Patrin was selected to present the Coalition’s arguments to the Supreme Court today, and we will post a link to the video of that argument once it is available.

In the meantime, the Supreme Court has taken the entire matter under advisement, and will be issuing its decision within the upcoming months.

You can view all of the briefs leading up today’s argument here.

UPDATE: Click here to view the video of the arguments before the Supreme Court.

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In Minnesota, a DWI conviction can not only cause you to lose your license, your job, your ability to get car insurance, and your respect, but you can also lose your liberty. When people think about the consequences of a DWI, they often don’t realize that they could not only be looking at time in the local workhouse/jail, but that they could actually go to prison.

There are many ways to find yourself charged with an aggravated DWI, but only two ways to find yourself charged with a felony-level DWI. If you have three (or more) prior DWI offenses (either convictions or license revocations) in the previous ten years, a new DWI charge is a felony. Additionally, any prior felony conviction for DWI or criminal vehicular operation will cause a new DWI charge to be a felony. And felonies mean more than losing your right to vote, possess a firearm, and find a decent job - felonies mean time in prison.

Not every person convicted of felony DWI goes to prison, but without a very good attorney, your odds of doing time go up tremendously. However, just because you may be facing a felony DWI doesn’t mean that you should have no hope. In fact, you shouldn’t spend all your time focused on merely avoiding prison, because there are many, many ways to fight a felony DWI.

Don’t forget, the State not only has the burden of proving that you committed this DWI - they have to prove that you committed each and every prior DWI that they are using to enhance this current charge. While the stakes are much higher in a felony DWI case, there are also even more defenses available - defenses that can not only keep you out of prison, but that can keep you from serving any time at all. At the same time, there are many more pitfalls than most people realize - underscoring how important it really is to “get it right” and hire an attorney that has experience handling felony DWI cases.

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This week, we headed down to Mansfield, Ohio to get some first hand knowledge about Minnesota's new breath test machine, the DataMaster. Today, we toured the plant and attended several lectures regarding the science behind infrared spectrometry and fuel cell detection of alcohol. 

Tomorrow we get to grill several of the manufacturer's employees regarding the specifics of the machine that will be used in Minnesota.

Stay tuned- we'll be posting more about our impressions and analysis of Minnesota's new breath testing device in the upcoming weeks.

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