Will A DWI Cost Me My Job?

I really like helping people; so do Chuck and Dan.  That is why we fight so hard at Ramsay Law Firm.  We are doing everything within our power to get our clients out of difficult situations and get their lives back on track.  

Every client is different.  Not just because of different facts, or different amounts of priors, but because the consequences of a DWI is almost never the same to two different people.  Some of the most urgent cases are those where our client will lose their job if convicted (CDL drivers, fireman, taxi drivers, just to name a few).

Here is a good video of Andrew Mishlove, a Wisconsin defense attorney, discussing the types of drivers that are indeed in danger of losing their job if convicted of a DWI.  If this sounds like you or someone you care about, the potential employment consequences must be considered and every effort to prevent those consequences must be utilized.  

Saving someone's job means saving an entire family's income.  


Minnesota DPS Admits Ignition Interlock GPS Tracking Data Is Public Information

This just keeps getting stranger ...for those of you that are unaware, the Minnesota Department of Public Safety (DPS) instructed all authorized Ignition Interlock vendors to install GPS tracking in their devices.  This major change to the Ignition Interlock program allows the government to track all movements of the program's participants and was done solely by the DPS, without even consulting the legislature.

Recently,  a Hennepin County judge issued an injunction that prevented the DPS from enforcing this requirement, citing clear  constitutional issues with GPS tracking without a warrant.

It gets worse.  Today, in the Minnesota Lawyer (you may need a subscription to read the whole article) another piece of information came to light: the GPS tracking data is public information, obtainable by a simple Government Data Practices request.  Lawmakers were stunned to learn that a citizen can obtain GPS information of all Ignition Interlock drivers, or a specific individual.  The concerns raised ranged from stalking to vendors selling the GPS data to third parties.

Representative Peggy Scott, chair of the House Civil Law and Data Practices Policy committee, is now drafting a bill that would immediately stop all Ignition Interlock GPS tracking. Additionally, the bill would limit the DPS's rule making ability to prevent something like this from ever happening again without legislative approval. We all learned as children what happens when trust is broken.

As defenders of the Constitution, Ramsay Law Firm will continue to monitor developments and provide them to you, our readers.

Beating Another Breath Test: Using Science to Expose the Limitations of Minnesota's DWI Alcohol Tests

In another blow to Minnesota’s breath testing program last week a Hennepin County Judge ruled in this Order the Commissioner of Public Safety failed to prove our client’s alcohol concentration was 0.16 or more and rescinded the license revocation. Specifically, the Court found that the Minnesota Bureau of Criminal Apprehension’s (BCA) failure to calculate and adjust the breath test result for the actual bias (whether the machine consistently reads high or low) renders the test result unreliable. 

In the case our client's breath test samples registered alcohol concentrations of 0.192 and 0.185 (0.1885 average). Because his final test result was over .16 the Department of Public Safety (DPS) revoked his driver’s license for one year (rather than the usual 90 day revocation) without the possibility of a work permit and impounded his license plates (resulting in so-called “Whiskey Plates”). We challenged the revocation and license plate impoundment and had a hearing.

We subpoenaed a BCA forensic scientist to the hearing. Using learned scientific treatises (and based on our extensive experience cross examining them) we elicited damning admissions from the Minnesota government scientists. These admissions allowed us to argue that the BCA procedures fail to follow the consensus in the scientific community and the results should be discarded.

In response to our arguments, the attorney general argued that 0.1885 is too far away from 0.16 for the measurement uncertainty to make any meaningful difference. However, as the Hennepin County Judge pointed out, this argument ignores the core of the challenge: the BCA cannot say how much bias affected the test result. The judge also noted that the BCA admitted under our questioning that bias increases dramatically at this concentration, but the BCA has not bothered to evaluate the actual bias.

Without more information on the device's bias, the Judge held that the state failed to prove it was more likely than not that our client's alcohol concentration was 0.16 or more.  Therefore, the license revocation and plate impoundment for being 0.16 or more was rescinded.

(It should be pointed out that this challenge -- whether the alcohol concentration was 0.16 or more -- is appropriate in Implied Consent cases after Ramsay Law Firm's recent victory in Janssen v. Commissioner of Public Safety.)

Ramsay Law Firm’s own Jay Adkins handled the case and did a fantastic job cross examining the BCA forensic scientist and arguing to the court.

Our firm’s breath test challenges not only continue to produce more victories, but bigger victories as well; "bigger" meaning that test results further from legal thresholds will be insufficient proof of the actual alcohol concentration was, in fact, over the legal threshold. When judges first started to throw out criminal and Implied Consent cases based on our metrology challenges they were generally limited to cases where the test reading was very close to the legal limit (e.g. 0.085, just 0.005 over the legal limit).  However, as we’ve extracted more information from the state crime lab and continued to learn more about the proper reporting of measurements, judges are seeing the inadequacies of the test results even when the results are further and further from the legal threshold.

2017 Predictions

Happy New Years!  Best wishes to you and yours in 2017.  

Last week Ramsay Law Firm took a look back at 2016.  It was quite an eventful year: from cases going to the U.S. Supreme Court to finding significant success challenging the validity of breath tests in Minnesota.  Now I would like to take a moment and make some predictions for what we will see in the new year.

1.  Expanded success challenging breath tests in Minnesota.

We have blogged exhaustively about this subject, so I will limit this prediction to a simple point: we will see more judges find breath test results invalid, unreliable and inaccurate.  As a result, we will see more criminal cases defeated and more licenses returned to our clients.  Not only will we see more victories in total, but there will also be "bigger" victories.  By "bigger" I mean test results further from the legal threshold (whether 0.08 or 0.16) being found insufficient to take someone's license or support a conviction.

We will have some news on this one very soon ...

2.  The Minnesota Supreme Court will hold that many drivers charged with DWI had their due process rights violated.

This is another topic our readers are well aware of.  An interesting legal question was left in the wake of Bernard and Ramsay Law Firm's victory in Thompson: what about drivers that were told they would be charged with a crime for refusing a blood or urine test (we now know this is unconstitutional) and then submitted to the test in response.  Can the state use the test results against the driver anyways?  That would seem to be an odd result considering we know the advisory in these cases was not only incorrect, but also unconstitutional.

Ramsay Law Firm scored three straight victories on this issue at the Court of Appeals and the matter is set to be heard by our state's highest court: the Minnesota Supreme Court.  I predict the Supreme Court will affirm because the state cannot benefit from making unconstitutional threats.  This is where the legal principles surrounding retrograde application of constitutional rules play a major role.  The main point is that when a law is ruled unconstitutional it was always unconstitutional, it is as if the law never existed.  Applying this principle the court will be left staring one basic fact in the face: these driver's were incorrectly and unconstitutionally threatened with being charged with a crime for refusing a test if they did not submit.  

3.  Expanded warrant challenges.

Now that blood and urine tests cannot be done through the standard Implied Consent process, anytime an officer wants to do a blood draw or urinalysis, they will need to get a warrant (common when the officer suspects controlled substance impairment). The warrant contains a set of documents submitted to a judge who must decide whether to sign the warrant.  The judge must be convinced the officer has probable cause based on what the officer put in the application.  This is where challenges are often made.

To convince a judge sometimes officers may embellish facts, or omit important information.  We have had a few instances of this recently that we are currently litigating.  Not all of these--let's call them "inaccuracies"-- are the result of officers trying to pull a fast one.  Sometimes they are errors that result from oversight, such as using preprepared language that is inapplicable to the case at hand.  Shoddy police work like this raises many 4th Amendment concerns that may result in the warrant (along with the test result) being suppressed and charges dismissed.

Because more warrants are being requested we expect to conduct more challenges to the validity of these warrants, and I strongly suspect there will be more instances of incorrect facts finding their way into the officers' applications. 

4.  More marijuana DWIs and new marijuana DWI laws.  

This prediction is more long term, but with the growing societal acceptance of recreational and medicinal marijuana use, the legislature will eventually attempt to create agressive marijuana DWI laws. One major possibility is to create a "per se" threshold amount of THC--similar to the 0.08 threshold for alcohol.

This would create a few issues: first, how is the government going to test for THC?  Recall that the state cannot charge a driver for refusing a blood or urine tests so the only option is get a warrant every time or develop some form of breath testing.  In fact, there are some states that are currently attempting to develop some form of saliva and breath testing.  Of course, the reliability and accuracy of any developed form of marijuana testing will be subject to legal challenges.  And if the test results are unreliable, Ramsay Law Firm will strongly contest the test results in court, just as we have done with the Intoxilyzer and DataMaster DMT.


5.  More false-positive Ignition Interlock tests.

We have told you about a new trend of Ignition Interlock false positive tests.  We have seen enough instances to know that this issue is not isolated to just a couple of devices.  I predict this issue will remain ongoing:  more license revocations extended based on false positive tests.  If you are a driver on the Ignition Interlock program and you're violated, make sure an attorney is reviewing the matter (and the device's data) before you decide whether to form a legal challenge.



Minnesota Judge Orders Government To Stop Installing Ignition Interlock Devices

It's an issue we've been talking about for months, and now, a Minnesota judge has taken action. As reported by Eyewitness 5 News (KSTP) the Minnesota Department of Public Safety has just been ordered to stop their plan to GPS track every Minnesota driver (or at least, every Minnesota vehicle) that has the ignition interlock device installed.

The ignition interlock program has its good sides and its bad sides. As a huge positive, it allows people who have been charged or convicted of a DWI to continue to drive to work, to school, and even to chemical dependency treatment. It also enforces sobriety -- each driver needs to provide 30 tests a month, and the vehicle should not even start if the driver has been drinking.

It also has some bad aspects; false positive tests, very strict maintenance and calibration requirements, and the possibility of having a license revocation period extended by years due to equipment malfunction or false positive tests. We fight these types of situations all the time, and have success, but it's still a downside to an overall positive program.

But there is simply no need for the Minnesota government to try and use the ignition interlock program to try and track the location of program participants like this. That's why it was very satisfying to see this particular judge point out how the Department of Public Safety's actions are almost certainly unconstitutional, ordering them to stop in their tracks. 

KSTP has been following this story since the beginning, and have a great news piece on these latest developments that you can read below. And if you're truly concerned about this potential large-scale violation of privacy rights and freedoms, this would be the time to notify your state representative and senator and let them know how you feel -- there will be legislative hearings on this matter, and the Department of Public Safety has a lot to answer for.


2016 Year in Review

2016 has been quite the year for Ramsay Law Firm and Minnesota's DWI laws in general.  It's not every year a case is heard by the United States Supreme Court that drastically changes our laws and the laws across the country.  This is not being melodramatic, the events of the past year are unique and their affects will be felt, and litigated about, for years to come. 

Below are the nine most notable events of 2016:

1.  Bernard heard by the U.S. Supreme Court.

This was the long awaited case.  Finally the highest court in our country was going to decide the question that has been posed time and time again: if the 4th Amendment protects us form unreasonable searches and searches conducted without a warrant are per se unreasonable, then how can a state criminally punish anyone for refusing a warrantless chemical test?

Daniel Koewler authored a brief to the Court for this case as an amicus curiae ("Friend of the Court").  He also attended the oral argument in Washington D.C. and wrote about his observations

The Court issued its opinion on June 23rd.   In making its decision, the Court focused on the intrusiveness of the individual tests.  The Court held that because blood draws (needle piercing skin and blood vein) are much more intrusive than breath tests (which essentially require the subjects to blow into a straw),  different amounts of protections will apply to each test.  

The bottom line is that breath tests now qualify as "searches incident to arrest," and therefore, the state can criminally charge a driver for refusing a breath test.  On the other hand, the Court held blood tests do not qualify as "searches incident to arrest," and therefore, the state cannot criminally charge a driver for refusing a blood test. 

2.  Thompson established that Minnesota's test refusal law is unconstitutional for urine tests.

In the wake of Bernard, a line had been drawn in the sand.  On one side was blood tests (constitutionally protected) and the other was breath test (not as constitutionally protected).  The remaining question was where urine tests fell on this spectrum.

This was our case and Daniel Koewler argued to the Minnesota Supreme Court that urine tests belongs on the "blood" side of the line.  He poised the question: what is more intrusive than urinating?  When you are lying in a hospital bed your family and friends will be around you when your blood is drawn, they will obviously also be around as you're breathing, but if able, you would still excuse yourself to use the restroom. Urinating is just as intrusive as having blood drawn, if not more.  The Minnesota Supreme Court agreed and ruled it is unconstitutional to charge a driver with refusing a urine test.

3.  Courts begin tossing blood and urine tests conducted prior to Bernard and Thompson.

Now that it is clear that Minnesota cannot charge someone for refusing blood or urine tests, what about the drivers that were told refusing such a test would result in criminal charges and submitted to the test after hearing this threat?  The state argued that the threat was true at the time it was made so those who took the test can still be punished.

Jay Adkins handled these cases at the Minnesota Court of Appeals and we received three straight victories.  Each time the Court held that once a law is ruled unconstitutional, it was always unconstitutional-- it is as if the law was never on the books.  Based on this, when drivers were told they would be criminally charged for refusing a blood or urine test they were mislead in violation of their due process rights.  One by one, each of our clients got their licenses back and we now await as the matter is to be heard by the Minnesota Supreme Court.

4.  BCA feels the heat for refusing to report uncertainty of measurement and bias with breath tests.

Breath tests in Minnesota are conducted with the DataMaster DMT.  This machine is designed to conduct measurements of a subject's breath alcohol concentration.  Since measurements are being conducted the principles of metrology (study of measurement) is vitally important.  

We began to point out that the Minnesota Bureau of Criminal Apprehension (BCA) was not following the metrology standards. Specifically, they were not releasing (or even calculating) the uncertainty of measurement or bias, even as numerous authorities in the field stated these steps are essential to interpreting the results.  The BCA continued to hide behind their accreditation and say "our accrediting body does not require us to complete these steps."  Unfortunately for the BCA, their accrediting body does not have the ability to override the consensus of the scientific community and the courts are only allowed to consider scientific evidence that complies with accepted scientific principles and practices, not just what accrediting bodies require.

Ramsay Law Firm continued to bring the BCA into court on this subject and judges started to see that because the breath tests did not comply with scientific standards, they were not valid, reliable, or accurate.  Accordingly, the test results started getting thrown out, which got our clients' their licenses back, and put pressure on the BCA.

In response, the BCA cried uncle.  They hired Rod Gullberg to develop the measurement uncertainty and bias of all breath tests in Minnesota and released that information.

5.  Cases start being defeated based on the information released by the BCA on uncertainty of measurement.

Once we learned how inaccurate the breath tests are in Minnesota, we began to litigate cases on the merits.  We challenged the BCA's calculation, assumptions, and conclusions.   We were able to show significant likelihoods that the test results were wrong and our client's alcohol concentration we under the legal limit.  Put another way: a .09 test result does not mean the driver's alcohol concentration was actually over 0.08. Because the state could not prove our clients' actual alcohol concentration was over the legal limit, they could not convict our clients of DWI or take their licenses.

Today, we are still fighting this battle in court.  One-by-one we are attempting to educate judges and prosecutors about metrology and the inherit uncertainty of the test results they so loyally believe.

6.  We convinced that the Court of Appeals that the Implied Consent Law allows our clients to challenge whether their alcohol concentrations was 0.16 or more. 

With science-based challenges now in play, the state attempted to limit drivers' ability to challenge increased license revocations when the DataMaster registered an alcohol concentration of twice the legal limit or more (0.16).  This is important because--for a driver with no priors--an alcohol concentration of 0.16 or more will result in the standard 90 day license revocation becoming a one year license revocation along with other additional penalties. 

We pointed out to the Court of Appeals that the Implied Consent law states a driver may challenge whether the test is valid, reliable, and accurately evaluated.  We also argued that due process requires that a driver be allowed to challenge an increased license revocation because they have a property interest in their driver's license and license plates.

The state argued that the law only explicitly allows a driver to challenge if their concentration was 0.08 or more.  In their mind, if the test registers an alcohol concentration of 0.16 or more, the driver is stuck with the increased revocation.  

The state's argument is crazy.  No, really, a Court of Appeals judge told the state's attorney "that's crazy" during oral argument.  The court ruled in our favor and stated in a published opinion that all drivers are able to challenge whether their alcohol concentration was 0.16 or more.

7.  Multiple DWI refusals defeated because the driver was physically unable to provide enough air for the Datamaster DMT.

So now that it is settled that the state can criminally charge a driver for refusing a breath test, but not urine or blood, we have seen an uptick in the amount of breath tests conducted.  Once someone agrees to take the test they are required to give two breath samples that will be analyized.  Each sample must contain at least 1.5 liters of air total with a flow rate of at least 3.0 liters per minute.  If a driver fails to give "adequate" samples, the officer may arbitrarily determine that the driver "refused by their conduct," and charge them with criminal refusal.

We had two clients this past year charged with refusal by conduct.  Knowing that physical inability to give the breath samples was a defense to these charges, we challenged the refusal and showed the court that the client's inability to give enough air was due to medical issues and not an attempt to avoid testing.  In both cases we were successful in defeating the refusal charge.  

8.  Ignition Interlock devices begin to register false-positive tests.

One of the hardest parts of being charged with a DWI for our client's is the loss of their license.  In order to provide some relief the state has set up the Ignition Interlock program.  Simply put: if you have a Ignition Interlock device installed in your car, you will be allowed to drive during a license revocation.  The trade offs are that you will be required to give breath tests every time you drive and if you are caught attempting to drink and drive (violating the program) your license revocation will be extended or even canceled.

A client of ours found herself in this very position.  Although she never consumed alcohol, she had a positive test and the state wanted to cancel her license.  After some investigation, we were able to show that the specific device was prone to false-positive tests and that the positive test result at issue was entirely consistent with those false-positives.  The judge agreed and our client's license was saved.  This was not an isolated incident; we continue to see more and more Ignition Interlock devices registering false-positive tests.

9.  Charles Ramsay and Daniel Koewler named "Attorneys of the Year."

Based on their endless work challenging the validity of breath tests and their handling of some of the biggest cases of the year, Charles Ramsay and Daniel Koewler were given the prestigious award of being named one of Minnesota Lawyer's "Attorneys of the Year."  This is actually Chuck's second time receiving the award which places him in the incredibly rare "Circle of Excellence" level for Minnesota lawyers.


What a year!  Now we look forward to 2017.  Check back this holiday weekend when we will release our predictions for the upcoming year; we might not be the second coming of Nostradamus, we do have a history of correctly predicting the future of Minnesota's DWI laws and upcoming legal challenges.

Happy New Year's and if you're out celebrating make sure to call a cab or have a designated driver!


Three Straight Victories At The Court Of Appeals

This morning our office won its third case at the Minnesota Court of Appeals in a row!  Here is the opinion.  

Once again, the issue was a misleading advisory read to a driver prior to a chemical test.  Instead of rehashing this subject to death, I will point you to a blog we we wrote after our second victory on this same issue with links to substantive blog entries that explain the arguments.

Also, as we have mentioned before, this issue is going to be heard by the Minnesota Supreme Court and we will provide updates as oral argument approaches.


Bringing In Co-Counsel Results In Another DWI Success

Ramsay Law Firm recently won yet another DWI case by using our scientific knowledge to challenge a breath test result. In this case, like many others we've consulted on over the last year, we were not the original attorney of record. Instead, the individual who lost his license after a DWI arrest originally retained a different (and very competent) Minnesota DWI defense attorney. That attorney was more than capable of guiding this individual through the legal web that makes up Minnesota's DWI laws -- but knew enough to know what he was good at, and where he needed a little assistance.

The breath test result in this case was measured as just slightly higher than a legal threshold and, as we all know, a test over a legal threshold brings with it a long list of criminal and civil consequences. The attorney fought hard to try and reach a settlement, but nobody seemed willing to budge -- either on the criminal charges, or on the license revocation. Everyone was in a deadlock, and a series of trials seemed imminent.  

We were then hired by this individual's attorney for a very limited purpose:  challenging the validity, accuracy, and reliability of that test result. We've literally been writing the book on this subject over the last year, and have more experience fighting this issue than any other attorney in Minnesota (and probably the whole country). This time, as we were following our standard practice of gathering the necessary information and filing our scientific breath test challenges, we had to stop short. Not because we uncovered any dramatic new evidence, but because the state suddenly changed its position and agreed that we had the ability to successfully disprove the validity, accuracy, and reliability of the test result. Rather than go through a long fight, the state changed its original position and instead agreed to treat our client's breath test as though it was not over the legal threshold!

We like to fight, but that doesn't mean we weren't very happy to reach an agreement and provide relief to an individual who had lost his license. Nothing feels better than having the ability to help another person facing the consequences of an alleged DWI and his attorney convince the state to do the right thing. 

Victory At The Court of Appeals: Another License Saved

Ramsay Law Firm received another victory at the Court of Appeals today.  The issue in question should sound familiar to followers of this blog: a driver being told that "refusing to take a urine or blood test is a crime," is misleading and a violation of the Constitution.  We have explained this issue at length: here is a blog about another victory at the Court of Appeals on this same issue; here is a blog about the merits of the issue; and here is another blog discussing the issue's merits with an assist from "Back To The Future."

We have one more of these cases to be decided and we expect similar results.  While it is easy to lump this victory with the rest, it is incumbent upon us, as defense attorneys, to appreciate that this victory is unique to our client because, this time, it was his driver's license at stake.  We are thrilled for our client, this victory gets him his license back and he can now go back to driving for work and his day-to-day responsibilities.  

As we have said this before this issue is not completely settled.  It will ultimately be heard by the Minnesota Supreme Court and we will provide additional updates as we get closer to oral argument.


Defending Minnesota Ignition Interlock Violations

One of the most difficult hurdles our clients face is the potential loss of their license.  They simply cannot afford to lose their ability to drive; their children need to be taken to school and events, they have to get themselves to work, and all of life's daily demands still exist.

Many of these people are left with only one option to drive: pay to have an Ignition Interlock device installed.   The general idea is that since the device prevents the vehicle from starting unless the driver is sober, there are less public safety concerns.  Therefore, once the device is installed the state will reinstate the driver's driving privileges subject to a few rules and guidelines.  This invaluable tool has been used by many to continue living their day-to-day lives while their license is revoked or cancelled.

Unfortunately, there have recently been some issues with these devices that have nothing to do with alcohol consumption: false positive tests.  A false positive test doesn't just prevent the car from starting, it actually is viewed as a violation of the program which results in the license revocation being extended, or even an outright cancellation of the driver's license.  

We recently defeated one of these cases where the state tried to violate our client and turn her license revocation into a outright cancellation.  Our client's Ignition Interlock device previously had numerous false positive tests over the stretch of a year.  This is what the false positive tests looked like: the first test would show a minimal alcohol concentration, our client would then retake the test a few minutes later and the alcohol concentration would fall below the minimal threshold amount, often back to 0.00.  We know this is a false positive test because such a drop in alcohol concentration would take over an hour.  However, in one instance our client retook the test, and while the amount of alcohol again dropped, it did not fall far enough to go below the threshold amount.  The Commissioner of Public Safety violated our client.

To challenge the violation, we pulled the device's entire usage report.  We were able to show the numerous false positive tests that seemed to present a pattern of occurring every few months. The device was clearly faulty, but the Commissioner of Public Safety still wanted to sanction our client.  The Commissioner of Public Safety's position can be easily understood because they don't want to admit that some of the devices, which they approved for this program, are malfunctioning. 

Fortunately, the judge carefully considered all of the evidence and was not convinced that our client drank alcohol.   The judge stated that  the device's readings could not be trusted because of the previous false positives.  In the end, the violation was thrown out along with the license cancellation!  Here is a redacted version of the opinion.

Much like the DMT Datamasters, the Ignition Interlock devices are not foolproof.  So, if you are given notice of an Ignition Interlock or abstinence violation it may be due to a faulty device and you should take advantage of your right to challenge the violation before a judge by contacting a competent defense attorney.  Otherwise, your license will either be revoked for a longer period of time or even cancelled, even if you haven't actually violated the program.

If your license is currently cancelled or revoked, and you're interested in getting an Ignition Interlock device installed, here are all of the qualifying companies you can contact:

Intoxalock -- (877) 777-5020

Smart Start MN -- (952) 224-7050

ALCOLOCK -- (855) 855-4542

Draeger Safety Dianostics -- (800) 332-6858

LifeSafer Interlock -- (800) 745-0331