Breaking News: Minnesota's DWI Test Refusal Law Is Unconstitutional

Inscription on the wall of the United States Supreme Court Building from Marbury v. Madison, in which Chief Justice John Marshall outlined the concept of judicial review. “ IT IS EMPHATICALLY THE PROVINCE AND DUTY OF THE JUDICIAL DEPARTMENT TO SAY WHAT THE LAW IS. MARBURY v. MADISON 1803 ”You didn't misread that headline - the Minnesota Court of Appeals just ruled that Minnesota's DWI test refusal law is unconstitutional. It is almost a certainty that this case will be appealed to the Minnesota Supreme Court (and possibly beyond).

You can read the decision yourself by clicking this link right here.

By way of brief background - this case (State v. Trahan) was already in front of the Minnesota Supreme Court earlier this year. After the Minnesota Supreme Court ruled that Minnesota's DWI Test Refusal law was "sometimes" constitutional (if the officer asked for a breath test) the Court sent the Trehan case back to the Court of Appeals to decide whether or not the test refusal law was also constitutional in cases where the officer asked for a blood test or a urine test. We now have our answer, the same answer we were predicting earlier this year - and that answer is "nope, the test refusal law is unconstitutional."

It's hard to predict what the future holds, but right now, it appears that in MInnesota:

1. drivers can be convicted of the crime of refusal if they refuse to submit to a breath test

2. drivers cannot be convicted of the crime of refusal if they refuse to submit to a blood test, and 

3. it is unclear whether it is constitutional to charge someone with refusal if they refuse to submit to a urine test.

We'll provide some additional analysis and insight soon, so stay tuned!


The Technicalities (and Presumptions) of DWI Defense

"The Jury by John Morgan" by painted by John Morgan, uploaded to Wikipedia (en) by Swampyank - The Jury by John Morgan.jpg in Wikipedia (English). Licensed under Public Domain via Commons - comes up often enough to warrant a blog post - the future client who calls us, looking for advice, who has several assumptions about the "technicalities" of being arrested for a DWI. This usually takes one of two forms:

1. This future client prefaces everything by saying "I know I'm 'technically guilty' of DWI, but . . ."


2. We hear the phrase "I want to know if it is possible to 'get off on a technicality'"

Most often, these two "technical" phrases go hand in hand, and they betray the common perception of most people arrested for DWI; they immediately and crushingly feel a real sense of guilt, and they think that the only way to "win" a DWI case is on some obscure "technicality."

We'll discuss "technicalities as defenses" in a subsequent blog, but for now, we want to address the concept of "technically guilty" because it is an absurd concept. The term guilty has a very strict definition when someone is charged with a crime - it means that the government managed to overcome the presumption of innocence, and nothing else. And there are only two ways for the government to overcome the presumption - it either has to convince the person charged with the crime to plead guilty, or go in front of a jury and prove guilt unanimously, beyond a reasonable doubt. 

Plead it or prove it - until one of those two things happen, nobody is "technically guilty" of anything. It sounds like a bunch of lawyer-speak nonsense, but trust me, it is not. Guilty is such a specifically-defined word for the same reason juries do not return a verdict of "innocent" - you are either guilty (proof beyond a reasonable doubt) or not guilty (any amount of proof that falls just short of beyond a reasonable doubt).

So lets say you are arrested for DWI, and even though you think you felt sober you blew a .10 breath test result. When you call us because you want to hire us as your attorneys, don't start the phone call by saying you felt okay to drive but know you are "technically guilty" . . . because you are not. You are technically not guilty, and presumed innocent, up until the point that the government proves every element of the charged offenses (including that their test result was valid, accurate, and reliable) beyond a reasonable doubt.

You can take away any life lessons that are appropriate after being arrested for DWI (the most common one is "I am going to make sure I am never arrested again") but save the legal lessons for us; our job is to do everything possible to keep you from actually becoming "technically guilty." 


Minnesota Expungement - Now Is the Time

I sat in on an expungement calendar recently (a court session dedicated to hearing expungement petitions) to get a sense of how Minnesota's new law is playing out in the courts.

Three things I learned from that calendar:

  1. DWIs are expungable. I saw the judge grant an expungement petition for a gross misdemeanor DWI. That expunged DWI will not appear on a criminal record or a criminal background check. The State will still have the ability to use expunged DWIs for enhancement purposes in the event that an individual commits another DWI offense. The expungement liberates the individual from discrimination and collateral consequences based solely on the existence of a criminal record, without diminishing the power of the State under DWI law.
  1. For convictions and stayed sentences, the length of time that must pass before you are eligible to apply for a statutory expungement starts upon discharge of the sentence for the crime (i.e., the date of discharge from probation - not the date of offense, conviction, or release from confinement).

Level of offense


Minimum time required to be eligible for statutory expungement

When time period starts

Criteria during that time

Minn. Stat. §


Petty misdemeanor/ Misdemeanor

Conviction or stayed sentence

(See here for other dispositions)

2 years

Discharge of sentence (discharge from probation)

No new criminal convictions

Subd. 3(a)(3)

Gross misdemeanor

4 years

Subd. 3(a)(4)

Felony (eligible offenses listed in Minn. Stat. § 609A.02, subd. 3(b))

5 years

Subd. 3(a)(5)

  1. Your official discharge of sentence will not occur until your fees and fines have been paid. Even if you completed probation years ago, you will not receive formal discharge (the expungement eligibility clock will not start running) until you’ve paid in full, or the financial obligation has been resolved through the collections process, which usually takes years.

Check your record to make sure you have been formally discharged from probation.

These three tips, while helpful, are no substitute for legal counsel. If you meet the above criteria, and you’re ready to proceed with expungement, contact an attorney.

Blowing Our Own Horn may notice that we cover a wide-array of DWI topics on our blog - sometimes we post about big news for the firm, like Chuck earning a new certification. Sometimes we're working to bring our readers up to speed on potential new changes in the law affecting DWIs. Other times, we're straight up criticizing baffling examples of where the DWI law went wrong. And of course, there are times where we're just flexing our creative writing muscles and protesting laws we find completely unjust

One thing we don't do much of on this blog is tout our victories - specifically, the cases we win for our clients. There are a couple of reasons for this.

The first is that we generally tout our victories on our Facebook page - here's a handy link if you wanna go check it out (and maybe click "Follow" while you're there?). We don't announce every single time we get a case dismissed, pled down, or craft a sweatheart deal, but more often than not we reserve our humblebrag posts for Facebook and don't clutter the blog with such content.

The second reason is arguably more important: the fact that past results don't automatically determine future successes. Here's the thing: contrary to popular belief, every DWI case is very, very different. There is no such thing as a "routine" or "run-of-the-mill" DWI, and anyone who says otherwise just isn't putting the right amount of time into the case. We've won some zany cases with facts that we'll likely never see again, and we've won a lot of cases that look like they were just "routine" cases -- but upon careful review we were able to find that unique lever that pried the case right open. A casual comment by the arresting officer, a slight irregularity in the DataMaster calibration logs, an odd notation in the blood file; years of experience mean that we catch these things, and can use them to our client's advantage. 

We've got a long-standing philosophy at Ramsay Law Firm: Every DWI Case Is Winnable, and it's our job to figure out how. That being said, we'd be doing a disservice to our clients (both past and future) if we tried to rig it so it looked like we win every single case . . . the reality is that we don't. We can have a week like last week, where we won four cases in a row, but that doesn't mean that we're going to win the next one. Each case is unique, each case takes a lot of effort towards obtaining a favorable outcome . . . and that's why we don't tout our victories on our blog. 

If you're researching online for an attorney to successfully defend your DWI case, and are looking for a string of victories, make sure that's not your only criteria. An attorney who never wins is almost certainly an attorney who never tries, but there's more to finding a good attorney than a string of out-of-context victories. 


Introducing Minnesota's First and Only ACS-CHAL Forensic Lawyer-Scientist: Chuck Ramsay

Oyez Oyez! Hear ye, hear ye:

Chuck Ramsay has received the prestigious “ACS-CHAL Forensic Lawyer-Scientist” designation from the American Chemical Society.

Today marks the formal announcement that Attorney Chuck Ramsay is the first and only Minnesota lawyer to earn the honor, and the official title, of ACS-CHAL Forensic Lawyer-Scientist.

Chuck joins an elite group of just 31 attorneys nationwide who have received the designation.

Like PhD, or MBA, the ACS-CHAL Forensic Lawyer-Scientist designation signifies the attainment of advanced knowledge within a given field. Already known as a skilled and experienced trial lawyer, the ACS-CHAL Forensic Lawyer-Scientist designation is a recognition of Chuck’s specialized forensic knowledge, and his innovative, effective use of science in the courtroom.

Chuck received this honor from the American Chemical Society (ACS), a non-profit organization, chartered by Congress, with more than 161,000 members. (The Chemistry and the Law Division (CHAL) of ACS has more than 1400 members.)

To earn the ACS-CHAL Forensic Lawyer-Scientist designation, Chuck successfully completed coursework in the lab (and passed final examinations) in Forensic Chromatography, DUI ethanol-based analysis by HS-GC-FID; Solid Drug Dose (Forensic Drug Analysis), Instrumental Analysis using FTIR, GC-MS, Colormetrics, Microscopy, Thin Layer Chromatography; Forensic DUID, Pharmacokinetics, and Pharmacodynamics.

Justin McShane, co-chairman of the Forensic Science section of the ACS-CHAL Division of ACS, likens the “ACS-CHAL Forensic Lawyer-Scientist” designation to “poet-warrior” or “philosopher-king”:

The ACS-CHAL Forensic Lawyer-Scientist is one who uses validated and legitimate science for the benefit of justice. These are lawyers who study the science and apply it legitimately in the courtroom. They expose invalid or non-validated science and use valid science in the courtroom. They eschew the smoke and mirrors techniques of old and embrace the science for the benefit of all.

Congratulations Chuck, on your official designation as an ACS-CHAL Forensic Lawyer-Scientist.

Tampering with the Evidence - Forensic Labs Are Dropping Like Flies

You may recall the St. Paul crime lab debacle in 2013:

An independent review of the St. Paul crime lab found

major errors in almost every area of the lab's work, including the fingerprint and crime scene evidence processing that has continued after the lab's drug testing was stopped in July. The failures include sloppy documentation, dirty equipment, faulty techniques and ignorance of basic scientific procedures ... Lab employees even used Wikipedia as a 'technical reference' in at least one drug case ... The lab lacked any clean area designated for the review and collection of DNA evidence. The lab stored crime-scene photos on a computer that anyone could access without a password.

Minnesota isn't alone.

Last Thursday, September 17, 2015, the news came out that a forensic analyst at an Oregon State Police lab was placed on leave after

"improprieties" found in one case led to further investigation into stolen evidence and fabricated results. According to one estimate, the technician worked on over 300 cases in one county alone, and as many as 1,000 cases may be in jeopardy. 

This summer it was discovered that the Illinois State crime lab had stopped conducting required method validation studies and

instead developed their own nonstandard methods for the testing of ethanol, cocaine metabolites, cannabis and every other drug in urine and blood samples. The scientific breach renders the results of every test performed in the lab potentially unreliable and invalid, according to experts. 

In Detroit, in 2008, police shut down their crime laboratory 

after an audit uncovered serious errors in numerous cases. The audit said sloppy work had probably resulted in wrongful convictions, and officials expect a wave of appeals ... auditors re-examined 200 randomly selected shooting cases and found serious errors in 19.

At a Massachusetts drug lab, in 2012, a chemist was sent to prison after admitting that

she faked the results in perhaps tens of thousands of drug cases, calling into question thousands of drug convictions that ended with people in prison.

In Colorado, in 2013, the Office of the Attorney General documented inadequate training and alarming lapses at a lab that measured the amount of alcohol in blood.

In Philadelphia, in 2012,

three trace-evidence technicians have flunked a routine test administered to uphold the police crime lab’s accreditation, police brass announced Tuesday. Each technician tests hundreds of pieces of evidence a year for traces of blood and semen, so if investigators determine that the methods are problematic, it could throw countless court cases into question ... .

In North Carolina, in 2010, it was discovered that

agents withheld exculpatory evidence or distorted evidence in more than 230 cases over a 16-year period. Three of those cases resulted in execution. There was widespread lying, corruption, and pressure from prosecutors and other law-enforcement officials on crime lab analysts to produce results that would help secure convictions. And the pressure worked.

This is why, at Ramsay Law Firm,  we hold the state accountable for every test result we get. Accuracy, reliability, validity...we don't take the state's word for it. We make them prove it.


Following the Future: Minnesota's DWI Test Refusal Law's own Robert Zimmerman may have said it best when he noticed that "The Times, They Are A Changin'" It looks like the odds of the United States Supreme Court taking a careful look at Minnesota's decision to criminalize the act of DWI test refusal are going up by the day. We may soon see Minnesota's DWI test refusal law thrown out by the Supreme Court. 

Here's why: Earlier this year the Minnesota Supreme Court -- in a 4-3 decision -- decided that Minnesota's DWI test refusal law was constitutional, in the case of State v. Bernard. Bernard's attorneys promptly filed for further review by the United States Supreme Court, the first step along the road towards convincing the highest court in the land to find Minnesota's DWI law unconstitutional (which we've been arguing for a very long time). 

No action has been taken on Bernard's petition yet (the justices will review it in a conference within the next couple weeks). And everyone knows that the United States Supreme Court accepts very few cases for review (although there is a steady trend of the Court accepting more and more petitions). So the question is, "what are the odds that the Court will grant review of the Bernard decision?"

We recently uncovered a clue regarding this all-important question. Two DWI test refusal petitions to the Supreme Court, filed by pro se defendants (meaning they are representing themselves, never the best idea) were reviewed by the Court and led to an order for "Briefs in Opposition." This is a rare step, and the Court will not typically accept review of a case unless they have first ordered Briefs in Opposition.

The take away? At an absolute bare minimum, it means that there are several justices on the Supreme Court who have the issue of DWI test refusal on their radar, and are interested in reviewing the case. Otherwise, those two pro se petitions would have simply been denied. Instead, we've got some additional insight, and more reason to be optimistic that the Supreme Court will step in to reverse Minnesota's DWI laws in an even more dramatic fashion than they did back in 2013 in the Missouri v. McNeely decision. 

If the Supreme Court orders the State of Minnesota to file a Brief in Opposition to the Bernard petition, how will they respond? Will the State try to convince the Court not to accept review out of fear of how the Supreme Court will rule . . . or will they admit that the question is, at the very least, important enough to be presented and argued to the highest court in the land? I don't know the answer, my friend . . . as of right now, it's just blowing in the wind


UPDATE: For those who are really curious, here are the two decisions that spurred the Supreme Court to order Briefs in Opposition: 

State v. Issacson (MN decision) (SCOTUS docket)

State v. Manska (MN decision) (SCOTUS docket)

Crossing the Line - What Happened to Innocent Until Proven Guilty?

How many times did you cross the line on your drive to work today?

I hope it was fewer than three, because that’s all it took to initiate the traffic stop that has turned my client’s life upside-down.

Like many of our clients, “Terry” was pulled over for imperfect driving.

During the officer's investigation of the triple line crossing, he noticed a smell of alcohol. Terry admitted that he had consumed alcohol earlier in the day.

(It’s not illegal—yet—to drive after drinking. You can have a glass of wine at dinner, or a couple beers during an afternoon football game, and then drive home, as long as you are not impaired, and your blood alcohol concentration is lower than 0.08. Bar and restaurant owners’ livelihoods depend on it.)

Officer: “Will you take a PBT test?”

Terry: “No, I’d rather not.”

Officer: “I am placing you under arrest for misdemeanor driving while impaired….”

On went the cuffs, and off they went to the police station.

The officer didn’t give Terry a Miranda warning; he gave him a Minnesota DWI warning instead: I arrested you for DWI, so you have to take a test, because it’s a crime to do anything else.

Terry didn’t take the test. The officer charged him with DWI and Test Refusal and threw him in jail.

Test refusal is a gross misdemeanor, so Terry had two options: post $12,000 bail, or agree to the State’s conditions of release, including at least bi-weekly random urinalysis (at $15 per test).

Terry didn’t have a spare $12k lying around, and he needed to get back to work, so he accepted the conditions.

Terry drives almost an hour to and from work, each way. Terry paid $680 out-of-pocket to have his license reinstated so that he could pay for installation and monitoring of the Ignition Interlock device in his car. 

Terry’s UAs and breath tests have all been alcohol-free.

Terry and I showed up for court to ask the judge to remove the random urinalysis condition of Terry’s release. Requiring UAs and Ignition Interlock is duplicative, expensive, and unnecessary. With Ignition Interlock, Terry can't drink and drive, and the State will know immediately if he tries to. It's not illegal for Terry to drink alcohol; only to drink and drive. 

The prosecutor objected. “The State has no relationship with the Ignition Interlock device vendor. I can’t subpoena an out-of-state vendor to enforce the violation if he blows a positive test. I’ve already litigated this issue. I need random UAs so I can prove in court that he’s been drinking.”

The judge denied our request.

All of this—the UAs, the Ignition Interlock, the attorney’s fees, the unpaid time off work for court appearances and urinalysis—is a pretty heavy burden for someone who is innocent until and unless he is proven guilty.

Especially since Terry's "crime" is that he didn’t give blood, breath, or urine after a police officer arrested him for crossing the line three times with beer on his breath.

I want drunk drivers off the road as much as you do. Drunk drivers who harm innocent victims are a menace to society. The problem is, test refusal is not drunk driving, and the only innocent victim that I see being harmed here is my client. 

A Wolf In Sheep's Clothing? Minnesota's Ignition Interlock Program

Ignition Interlock - the little gadget that is designed to ensure that you cannot start your vehicle unless there is no alcohol in your system. On it's face, it seems like a godsend, a true "win-win" invention; we can keep drunk drivers off the roadways by disabling their cars and trucks, and at the same time can feel more confident giving a driver's license back to someone who was recently convicted of a DWI offense. 

Minnesota's own Ignition Interlock program has been on the books over half a decade now, so we're developing a good idea of how it works . . . even as the program has gone through some growing pains. What started as a pilot project soon turned into a mandatory punishment for many DWI offenders. We still have many of the same concerns we voiced years ago, first and foremost being the simple fact that drivers that used to be able to get a standard work permit now need to pay a lot of hard-earned money for the privilege of being able to drive to work after a DWI conviction. 

How much money? Someone on the ignition interlock program for a year will pay well over $1,000 just to maintain the ability to drive, but that's not the end of the problem, it's only the beginning. Failed tests, missed tests, or simple malfunctions can trigger a "violation report," which typically results in a license revocation or cancellation that can substantially prolong the time (and money) a driver will need to spend on the interlock program. 

We're seeing more and more cases come across our desk where the State's policy of "shoot first, ask questions later" has meant that we needed to go to court to prevent someone from doubling their license revocation period because they used mouthwash before driving to work, or because the equipment malfunctioned, or because someone else used the device instead of the authorized driver (hint: the state will still try to hold you accountable, even if you weren't the one who blew into the device!)

Ignition Interlock users sign a detailed, fine-print contract before getting enrolled in the program, and the private companies administering the program arguably have an actual financial incentive in reporting their clients (as those clients will now have to spend more time and money on the program). 

So in the end, we end up filing a petition challenging the re-revocation of our client's driver's license. That means another filing fee, another court date, subpoenaing records and calling witnesses, sometimes for no other reason than a defective interlock device. We raise these challenges (and do it well) but it's frustrating to realize that the only way to challenge an erroneous violation report is to file a petition in court, after our client's have already been terminated from the program and lost their driving privileges. 

Interlock can work well for people who need their driving privileges to keep their job, but it can be a dangerous trap for those who go down the dangerous downward spiral of "failed" tests, missed tests, and device malfunctions. Be careful out there. 


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.