Beating Them With Science: Tools to Make the Case Against Breath Testing

Chuck Ramsay Explains Problems With Minnesota Breath Tests on Fox 9 News

If you've ever visited our blog before, you know that we take the science behind DWI testing very, very seriously. Whether we are educating the public on our blog, educating other attorneys at seminars (sometimes with the help of the Innocence Project), or educating judges at the annual Criminal Justice Institute, in the end we're always using our education to fight for our clients.

Last night, Fox 9 news interviewed Minnesota's only ACS-CHAL Forensic Lawyer-Scientist Charles Ramsay, where he discussed the misleading way in which Minnesota is reporting its breath test results.  

We brought in Janine Arvizu (and other experts) to dig into Minnesota's decision to refuse to acknowledge how inaccurate their breath testing machines really are. 

Do you trust the results of Minnesota's fleet of breath testing devices. If so . . . why?

The Truth About DWI Breath Testing: "A .08 may not be a .08"

(No Flash Player? Link to the article here.)

I've been known to say, "I don't math," but I'm not afraid of science. Here at Ramsay Law Firm we embrace science. Our own Chuck Ramsay is the only Minnesota attorney to be designated a Forensic Lawyer Scientist by the American Chemical Society.

While "good enough for government work" may pass muster at the Minnesota Bureau of Criminal Apprehension, we hold the state to a higher standard: proof beyond a reasonable doubt.

When it comes to breath alcohol concentration testing, the BCA is asleep at the wheel.

In a late afternoon interview yesterday, Chuck told Fox 9 News:

We've learned that the Minnesota Crime Lab is hiding the ball. Essentially, they aren't reporting the true values of these tests. And they're misrepresenting the test results. A .08 may not be a .08.

When we challenge the scientific validity and accuracy of the state's breath test evidence, we call in career scientists, like international measurement expert, Dr. Janine Arvizu. (If you've watched Netflix's "Making a Murderer," Janine is the expert who testified about the FBI's failure to find the preservative EDTA in the blood samples found in Teresa Halbach's vehicle.) At a recent hearing, Chuck asked Dr. Arvizu, "Are the state's breath test results [in our client's case] scientifically valid and reliable?" Dr. Arvizu responded "No. They are not.”

The two main reasons why the BCA's breath test results are unreliable: failure to report bias and uncertainty of measurement.

With bias, the state averages the biases of its entire fleet of breath testing instruments; the BCA never calculates or corrects for the bias of each individual machine. As Chuck explained to Fox 9:

Let’s say we have two bathroom scales. My bathroom scale, of course, is reading high. And yours, which is probably reading a bit too low. If mine is showing it’s five pounds too heavy, and yours is showing it’s five pounds too light, together, if you average the bias of the two, it will be a zero. And it will give the false impression that both scales are perfect when individually they’re not.

Furthermore, the state refuses to report uncertainty of measurement. As a matter of fundamental, generally accepted scientific practice and procedure, after correcting for bias (which the BCA does not do),

[scientists] have to calculate the uncertainty of the measurement for the breath test. The state already does this for blood and urine tests, but they refuse to do it for breath tests.

According to the bible of standard scientific operating procedures, ISO 17025, "without information on uncertainty, there is a risk of misinterpretation of results.”

No scientific test is valid, accurate, or reliable, without a quantitative assessment of the uncertainty of measurement. We're treating this as a "teachable moment" for the BCA.

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It's Official: Bernard Does NOT Apply to Blood and Urine Tests

The dismantling of an unconstitutional statutory scheme is, evidently, a slow process.

As of Monday, we are one small step closer to constitutional fidelity. In its unpublished opinion in State v. Thach, the Minnesota Court of Appeals acknowledged that the search-incident-to-arrest exception does not apply to blood and urine tests:

In Trahan, this court held, based on the state’s concession, that Bernard does not apply to a blood test and that a warrantless blood test cannot be justified by the search-incident-to-arrest doctrine. Similarly, in Thompson, this court held that Bernard does not apply to a urine test and that a warrantless urine test cannot be justified by the search-incident-to-arrest doctrine. Collectively, Trahan and Thompson compel the conclusion that, in Thach’s case, the administration of a warrantless blood test or a warrantless urine test would not have been a valid search incident to his arrest.

This conclusion logically follows from the Court's rulings in Trahan and Thompson, so why blog about it?

Because every small step matters. In State v. Bernard, the Minnesota Supreme Court deliberately took no position on the application of its novel interpretation of the search-incident-to-arrest exception to blood and urine tests.

[T]he question of a blood or urine test incident to arrest is not before us, and we express no opinion as to whether a blood or urine test of a suspected drunk driver could be justified as a search incident to arrest.

The Court of Appeals' decision in Thach takes a position on the issue.

Because the state relies only on the search-incident-to-arrest doctrine, we must conclude that Thach had a fundamental right to refuse to submit to both chemical tests.

Even this small step is a step in the right direction.

What can we expect next from Minnesota appellate courts? I'd like to see the elimination of the "as applied" modifier in DWI test refusal cases. These constitutional principles apply to all warrantless blood and urine tests in the implied consent context. The test refusal statute is unconstitutional on its face.

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Court Takes Notice of Shoddy "Science" of Breath Testing in Minnesota

On January 25, 2016, the Minnesota Court of Appeals released its decision in Torgeson v. Comm’r of Pub. Safety.

There are two notable passages in the unpublished opinion.

[W]e find that field sobriety tests are Fourth Amendment searches that require only reasonable suspicion[.]

This is an oxymoron. A Fourth Amendment search, by definition, requires probable cause and a warrant. Legally, a search that requires only reasonable suspicion is not a Fourth Amendment search.

[I]n all future implied-consent hearings where the foundation for results for the DataMaster DMT-G is at issue, it would be the better practice for the commissioner to call a witness who is more fully prepared and qualified to explain the operation of the machine.

In other words, if the operator of the breath testing instrument in a specific case doesn’t know how the instrument works, his or her testimony might not be enough to support the admission into evidence of the breath test results. (Under current Minnesota law, breath test results come in by legislative decree; the State is not required to provide evidence that the test instrument and result are actually reliable, accurate, and valid in any individual case.)

The Court’s signal to the State – to actually lay evidentiary foundation for breath test results – suggests that the Court is taking the scientific rigor (or lack thereof) of the breath testing process more seriously. It’s about time.

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The Broad Implications of the Supreme Court's Consolidation of Cases in Bernard v. Minnesota

Unless you’ve been living under a rock, you know that the United States Supreme Court will soon rule on the constitutionality, in the DWI context, of warrantless chemical testing and criminal punishment for refusing such testing.

But do you realize the potential enormity of the Court’s ruling in Bernard v. Minnesota?

The Supreme Court strives to confine its rulings to the specific legal issues in each case it reviews. The Court’s consolidation of three cases in Bernard v. Minnesota sets the stage for an uncharacteristically broad ruling.

The two criminal cases, Bernard (breath) and Birchfield (blood), suggest that the Court will rule on the constitutionality of criminalizing DWI testing in general, because they involve both a breath and a blood test.

The third case, Beylund, provides a much broader legal scope. Beylund is a civil implied consent case involving licensing penalties imposed, upon conviction for DWI, based on a warrantless, coerced-consent blood test. Beylund allows the Court to consider a host of contentious issues: the “free and voluntary” nature of constitutional “consent” under the Fourth Amendment, the constitutionality of implied consent property (driver’s license) deprivation, double jeopardy and double punishment due to the interplay between “civil” implied consent statutes and criminal DWI statutes, the "unconstitutional conditions" doctrine (can the state condition the right to drive on the surrender of constitutional rights?), and the constitutionality of legislative law that bypasses the Constitution.

Who knows, maybe the Court will even address the unintended legacy of South Dakota v. Neville: the categorical denial of Fifth Amendment/Miranda rights in the DWI context. (In 1983, the Neville Court found that a driver's submission to a warrantless blood test was not coerced because the driver waived his Miranda rights before the implied consent process, and because test refusal was not a crime.)

Call me a lawyer, but this is juicy stuff…

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Motion to Suppress Breath Test on Constitutional Grounds - Sample Language

If you watched our webcast earlier this week, you know that we stressed the importance of litigating constitutional issues in DWI cases, especially given the recent sea change in Minnesota appellate courts.

Warrantless chemical tests – including breath – are per se unconstitutional under the United States Supreme Court’s well-established interpretation of the Fourth Amendment. Minnesota’s Brooks and Bernard decisions simply do not comport with federal law.

The practical effect of the Minnesota supreme court’s ruling in Brooks has been that, under the guise of a “totality of the circumstances” analysis, submission to testing (under penalty of criminal prosecution for refusal) equals free and voluntary consent. Meanwhile, in Bernard, five of the seven justices on the Minnesota supreme court appropriated the limited and well-defined search-incident-to-arrest exception to the warrant requirement to justify warrantless DWI breath tests.

These issues must be litigated and preserved for appeal in DWI cases, period.

To that end, we are providing sample language for pre-trial motions challenging the admissibility of breath tests on constitutional grounds. These examples are intended to educate and inspire; they are not legal advice.

Motion to Suppress Breath Test

The breath test is inadmissible and must be suppressed, as:

  • The collection and chemical analysis of Defendant’s breath violated his/her right to be free from unreasonable searches and seizures under the Fourth Amendment of the U.S. Constitution, and Article I, section 10 of the Minnesota Constitution, Skinner v. Ry. Labor Execs’ Ass’n, 489 U.S. 602, 618, 109 S. Ct. 1402, 1413 (1989) (finding that “the collection and subsequent analysis of the requisite biological samples must be deemed Fourth Amendment searches”);
  • The breath test is the result of an unconstitutional, warrantless search and seizure, unsupported by constitutionally valid consent, exigent circumstances, or any other established exception to the Fourth Amendment warrant requirement, Riley v. California, 134 S. Ct. 2473, 2477 (2014) (holding that the police may not search digital information on a seized cell phone without a warrant); Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710 (2009) (concluding that “[i]f there is no possibility that an arrestee could reach into the area that law enforcement officers seek to search, both justifications for the search-incident-to-arrest exception to the warrant requirement, namely protecting arresting officers and safeguarding any evidence of the offense of arrest that an arrestee might conceal or destroy, are absent, and the exception does not apply”); State v. Thompson, 2015 WL 9437538 at *4 (Dec. 28, 2015) (citing Minn. Stat. § 169A.45, subd. 1, to distinguish searches conducted for identification purposes from chemical testing “used to collect evidence against the arrestee”);
  • Admission of the breath test without testimony establishing foundational reliability, including whether the testing instrument was in proper working order and the chemicals were in proper condition, violates Defendant’s rights guaranteed to him/her by the Confrontation Clause of the Sixth Amendment of the U.S. Constitution, and Article I, section 6 of the Minnesota Constitution;
  • All statements and testimonial evidence obtained from Defendant, and evidence generated pursuant to those statements, must be suppressed, as they were elicited in violation of Defendant’s protection against compelled self-incrimination and his/her right to remain silent under the Fifth Amendment, Miranda v. Arizona, 384 U.S. 436 (1966), and Article I, section 7 of the Minnesota Constitution;
  • Minn. Stat. § 634.16 is an unconstitutional encroachment upon the judiciary’s inherent authority to regulate the admission of evidence, and therefore violates the Separation of Powers Doctrine;
  • Operator manipulation during the administration of the test violated Defendant’s right to due process of law and equal protection of the laws under the Minnesota and U.S. Constitutions; and
  • Minn. Stat. § 169A.51, subd. 3, which delegates to law enforcement the authority to choose whether to require breath, blood, or urine violates Defendant’s Fourth Amendment rights, as well as his/her Fourteenth Amendment rights to due process of law and equal protection of the laws. See Trahan and Thompson.

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Meeker County Court Stays DWI Proceeding Pending Bernard and Trahan

Today another Minnesota judge stayed a DWI proceeding pending the United States Supreme Court's decision in State v. Bernard. The judge ordered:

"Based upon the United States Supreme Court review, this Court will stay this proceeding pending the outcome of the Bernard/Trahan decisions and, after decision is made, the Court will schedule this matter for a pretrial conference."

Read the Court's Order.

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TNT - Get A Handle On The Current Explosion In Constitutional DWI Challenges in Minnesota

The constitutionality of Minnesota's DWI laws have never been more uncertain. The United States Supreme Court is going to decide if Minnesota's DWI Test Refusal Law is unconstitutional. The Minnesota Court of Appeals already ruled that you cannot charge a driver for refusal if they refuse a blood test or a urine test.

Some law enforcement agencies have stopped using blood and urine tests entirely; other counties have so few breath testing DataMaster DMTs that they don't have much of a choice but to demand urine or blood samples.

Sometimes law enforcement obtain a warrant before a blood or a urine test; other times they don't; in almost every case, they tell the driver they will be charged with the crime of refusal even when the officer knows full well that such a charge would be unconstitutional.

What's the current status of DWI law in Minnesota, besides "confusing?" Does it matter what test is offered by law enforcement, and is there a difference in defending a case where the driver submitted to a test versus refused to submit to a test? How do you raise these challenges in court (or try and convince a judge to put your case on hold until the Supreme Court provides Minnesota with some much needed guidance?)

We'll answer all these questions and more in our upcoming CLE Webcast (sponsored by the folks over at MinnCLE). We'll go live tomorrow, Tuesday, January 25, 2016 at 2:00 p.m. There will even be time allotted for answering questions.

If you're even thinking about handling a DWI case in 2016, this is the one CLE you can't afford to miss. Sign up by clicking on this link right here. (MinnCLE provides a discounted rate for those who are MSBA members, or those of you who have a Season Pass . . . which, if you had a Season Pass, you would already know).

The Trend Continues: Another Test Refusal Charge Dismissed

Short and sweet: In a district court order filed yesterday, a Hennepin County judge dismissed another criminal charge of test refusal, citing Thompson and Trahan

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