Final Briefs Submitted in Trahan and Thompson

We recently witnessed significant upheaval in the area of DWI law (again). If you missed it, the United States Supreme Court found portions of Minnesota's DWI Test Refusal law unconstitutional. Specifically, it is no longer a crime for a driver to refuse to submit to a blood test after being arrested for DWI (now, if the police have a warrant, that's another matter . . .)

But blood tests are not the only tests given in Minnesota -- we are one of the very few states that still use urine alcohol testing. While the U.S. Supreme Court did not directly address whether or not it is constitutional to refuse to submit to a urine test (note: they did reverse one of our client's convictions that was based on a urine test) the issue is about to be decided by the Minnesota Supreme Court

We held oral arguments on Thompson (which will decide if drivers can legally say "no" to warrantless urine tests) in the beginning of June, and if you're really that interested you can watch the oral arguments here

But the reason for all that background is this: after the Bernard decision came out, the Supreme Court ordered "supplemental" briefing in Thompson  -- basically, an opportunity for all the attorneys to adjust their arguments to take into account these recent legal developments.

Wanna read those supplemental briefs? If so . . . here you go. Note that these are just for the Thompson (urine refusal) case . . . we'll get you the Trahan (blood refusal) supplemental briefs shortly. Enjoy!

The State's Brief

Our Brief

The ACLU Amicus Brief

Minnesota Attorney General's Amicus Brief

 

 

Just How Accurate Is Minnesota's DWI Breath Test Machine?

(Author's Note: The following long post is geared primarily towards defense attorneys trying to keep up with the latest developments involving Minnesota’s breath testing setup. If you’re not a defense attorney, you may want to skip this post; we’ll be providing further information later in the week that is geared towards lay persons. Of course, nothing is stopping you from continuing on – this is fascinating information!)

For the last several years, the Minnesota Bureau of Criminal Apprehension has been reporting the uncertainty data that applies to all blood- and urine-alcohol tests done in their laboratory. Rather than reporting a raw number (“this sample was 0.09”) the lab would, on the face of the report, include the uncertainty interval with every measurement (“this sample was 0.09 ± 0.004 with a 99.7% confidence interval”). That information provided after the little “±” was absolutely crucial – it tells us how inaccurate the measurement is, how likely it is that the measurement was at or above the legal limit, and effectively how much “trust” we could put into the analysis. By the way, don’t think that the BCA released this data because they wanted to be transparent; they openly admitted that they only did it because it was the bare minimum necessary to keep themselves from losing their accreditation.

For the last several decades, the Minnesota Bureau of Criminal Apprehension has not been reporting the uncertainty data that applies to breath tests. There, all they were willing to report was the raw number (“this sample was 0.09”) and drivers, jurors, and judges were each supposed to just “trust them” and conclude that the number reported was the only number that mattered. Funny enough, because their accreditation did not formally require them to release this particular number, the BCA felt comfortable completely ignoring the scientific need to report their breath uncertainty . . . "close enough for government work" indeed, eh?

Now everyone knows that lab-run blood and urine tests are way more accurate than field-run breath tests. How much more inaccurate? That's always been the $10,000 question. Put plainly, how many people were being convicted based off of shoddy science?

Now we know: we now know that, roughly speaking, you cannot say that a Minnesota driver was above the legal limit of 0.08 if their breath test reported an alcohol concentration any lower than 0.091. If someone tested less than 0.181, you cannot say that they were actually twice the legal limit. That’s because the BCA, after facing incredible pressure from our firm (and all of the attorneys who took the tools we provided them and added to that pressure), has finally released their interpretation of how much uncertainty actually affects a Minnesota breath test.

We’re going to provide you with that data at the end of this post; in any given case, you will be able to obtain it directly from the prosecutor/attorney general’s office with a discovery demand, but this data is so crucial to the interpretation of any breath test result that it should really be included with every test report. But before we get to that point, please read on.

This data is crucial for a variety of reasons, the first being that we’re finally getting to use real science in the courtroom. But more importantly, every year we’ve seen thousands of drivers charged with (and likely convicted) of DWI based on scientifically flawed test results (the relevant data starts on page 5 if you are curious enough to actually click that link). So in answer to the question of "how many wrongful convictions?" we can safely say it reached to thousands of drivers annually -- drivers who were told they were over 0.08, or over 0.16, when the fundamental truth is that they were not. That’s chilling.

And that’s honestly not just a failure by the BCA, or by our courts – that’s a failure of the defense bar. It’s a failure we’re about to correct, but don’t think that correcting it is going to be as easy as bringing the data we’re about to provide you into court, waiving it around, and yelling “not guilty! NOT GUILTY!” It took us a year of intense litigation to finally get these numbers released, and don’t think for a second that this means the fight is over. No, now the fight has just shifted gears.

So get educated. If you don’t know what the term “traceability” is, you’re committing malpractice as a defense attorney. If you don’t know how instrumentation bias effects the adjusted mean before applying the appropriate confidence interval, the data we’ve provided below won’t do you or your client any good at all and you should refer them to a competent attorney who can actually help them.

So bone up on the science. In fact, here’s a primer: the complete table of contents to our blog series detailing how to expose the flaws in Minnesota’s breath testing program. Read it, get familiar with it.

Part I: Why Use Breath Tests At All?

Part II: Scientific Community's Stance On Measurements

Part III: Measurement Traceability & Accuracy

Part IV (a): Breath Tests In Implied Consent (License Revocation) Cases

Part IV (b): Breath Tests in Criminal Cases

Part IV (c): Attempts To Keep Science Out Of The Courtroom

Part V: Court Transcripts

Part VI: Science Prevails! BCA Admits Defeat, Admits To Major Inaccuracies

Still with us? Okay, here’s what you slogged through all that text for: the complete uncertainty data, as provided by the Minnesota BCA.

Use it wisely. With great power comes great responsibility. 

Coming up, we’ll provide a simplified version of these challenges to help explain this astonishing turn of events to people who may be facing DWI charges right now. We’ll also start explaining some of the pitfalls that can trap unsuspecting defense attorneys trying to use this information to help their clients win their cases. Stay tuned. 

DWI Attorney Dan Koewler Selected For Minnesota's 2016 Super Lawyer Rising Star List

Ramsay Law Firm is proud to announce that Dan Koewler was recently selected for the third-straight year to Minnesota's "Rising Star" list maintained by Super Lawyers. Each year, less than 2.5% of the lawyers in the State of Minnesota are selected by the research team at Super Lawyers to receive this honor.

Super Lawyers, a Thomson Reuters Business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multi-phase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive, and diverse listing of exceptional attorneys.
The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. For more information about Super Lawyers, visit SuperLawyers.com.

Bureau of Criminal Apprehension Cries Uncle

Truth is often stranger than fiction. Since the beginning of 2016, Ramsay Law Firm has been making a concerted effort to expose the flaws in Minnesota’s DWI breath testing scheme. We’ve brought challenges in courthouses around the state, sometimes bringing in experts from around the country, sometimes just subpoenaing breath test scientists from the Minnesota Bureau of Criminal Apprehension and confronting them directly with the science that refutes their breath test results.

After almost a year of exposing these flaws  - lack of traceable results, misleading methods of reporting bias, failures to admit just how inaccurate breath tests really are – we started a blog series explaining our methods, providing the scientific basis for our challenges, and presenting our evidence to a wider audience. Alongside our blog, we were being asked to present at numerous nationwide seminars, including the annual two-day Criminal Justice Institute and presentations sponsored by the Innocence Project.

On the heels of the last blog post in the series, where we released a series of transcripts detailing our efforts in the courtroom, we received some astounding news: the BCA cried uncle.

Yesterday, in court, for the first time, a BCA scientist revealed that they are now willing to share just how inaccurate Minnesota’s breath tests actually are. The number they cited was basically “0.01,” an uncertainty figure that specifically applies to tests around the 0.08 level (we know there will be even more uncertainty at higher levels).

It took months and months of effort to finally expose this figure, but the hardest part is done. The BCA will now admit that breath tests are more than 3 times as inaccurate as urine or blood tests, and this number calls into question any breath test that is 0.09 or lower. This potentially negates hundreds of pending DWI cases were drivers were close to the legal limit – and will have lasting consequences for drivers who are close to that other limit, 0.16 (where enhanced penalties attach).

Consider this fact, helpfully provided to us by the Department of Public Safety: annually, Minnesota sees approximately 2,000 drivers who provide a breath sample between 0.08 and 0.09 and get charged with a DWI. With this new information, those drivers are very much "not guilty."

Interestingly, we also found out that the BCA obtained this “0.01” number by hiring the very expert we were continually throwing in their faces – Rod Gullberg. The BCA spent months distancing themselves from Gullberg’s publications and questioning his qualifications . . . but in the end, they actually paid him to help them release the numbers that we had been demanding since the beginning.

The fight certainly isn’t over, but this is a huge step. We now, finally, can get the BCA to admit that “0.08” does not actually equal “0.08,” and that uncertainty affects the results of their breath tests substantially more than when a driver is subjected to a urine or a blood test.

Today was a good day – it’s not often that science prevails in a legal battle, especially when government scientists are doing their best to convince judges that the science doesn’t matter.

Today it matters. 

Backdoor Breath Testing 5: Court Transcripts

This post is the fifth part of our mutli-part blog series on the inadequacies of all breath tests in Minnesota. We will now provide illustrative examples, through the use of actual court transcripts, on how litigation on these issues have progressed.  Essentially, we will now prove what we have been claiming all along: the Minnesota BCA knows breath tests conducted in the state are not valid, reliable and accurate, and will freely admit as much on the witness stand.

As a way of background, we have already told you that all measurements are merely estimates of the true value of the measurand (the thing being measured, i.e. alcohol concentration).  Now, here is an excerpt of a transcript form BCA scientist Karen Kierzek admitting that all breaths tests are estimates of the true alcohol concentration.

Because all measurements are estimates, how can we make sure that a test result are valid, reliable, and most importantly, accurate?  The answer is known by all, provide the uncertainty of measurement.  However, the Minnesota BCA has decided not only to forgo providing the measurement uncertainty, they have elected to not even calculate it, even though they freely admit it can be calculated.  In other words, the BCA hasn’t done it because no one has made them follow this basic principle of metrology.

Admissions from the BCA do not stop there, and they only become more egregious.  As a result of not calculating the measurement uncertainty, the breath test results are not traceable.  Although we have already discussed traceability in this series, here is a transcript from Professor Andreas Stoltz from Michigan State University discussing the concept and its importance in the field of metrology.  And here are three separate BCA scientists admitting breath test results in Minnesota are not traceable.  (Johnson, Edin, and Kierzek)

Because the test results are not traceable, and because the measurement uncertainty is completely unknown, the BCA has had no choice to admit that they do not even know the outer bounds (or “cap”) of the measurement uncertainty.  Even worse, they cannot even conclusively say whether the measurement uncertainty could affect the test result as much as + or- .10.  Consider the consequences of such an admission: a 0.17 test result, which is an aggravated result of over twice the legal limit (0.16), affected by a negative .10 uncertainty leaves us with a 0.07 test result,  below the legal threshold of 0.08.

With all of the inadequacies of the breath test results in this state, it is fair to ask: whose responsibility is it to ensure the breath test results are valid, accurate, and reliable?  Well, here is a excerpt of the BCA’s answer to that very question.  Although it will be patently obvious to you when reading, the BCA is unwilling to fully accept responsibility for the test results.   Wonder why ...

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U.S. Supreme Court Vacates Urine DWI Conviction

As we reported two weeks ago,  the U.S. Supreme Court has ruled on the constitutionality of warrantless blood an breath test, finding warrantless blood tests as unconstitutional searches, while drawing a line in the sand and finding the exact opposite for warrantless breath tests.   What was not decided in that opinion is the constitutionality of warrantless urine tests and crimes based on refusing such urine tests.  However, today Ramsay Law Firm received an order that sheds light on how SCOTUS views the issue.

The case at hand deals with a warrantless urine test that was obtained after the driver was told refusal to submit to the test was a crime.  Originally, Minnesota appellate courts upheld the admission of the urine test and the criminal conviction, finding no constitutional violations.  However, today's order form the U.S. Supreme Court vacates the conviction and requires the Minnesota Court of Appeals to reevaluate their original holding in light of of Birchfield v. North Dakota, 579 U.S. ___ (2016).

This case will be closely connected to the Thompson case Dan Koewler argued at the Minnesota Supreme Court on June 8th.  Check back for updates as we will continue to post all of the latest developments.

 

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Have a Safe and Happy Fourth of July

 It's been a crazy couple of weeks for anyone who has been following the state of DWI law in Minnesota. 

But we're coming up on our nation's birthday, and we just want to wish everyone a safe and happy Fourth of July. Whether you plan to be with family, friends, or just go it alone, enjoy yourselves and make smart decisions.

And speaking of smart decisions (because every post has to have an agenda!) if you are a defense attorney you'll want to consider attending the MACDL Duluth CLE, coming up on July 15, 2016. It's a beautiful city (especially in the summer) there are some great speakers lined up (and that's not even a humblebrag, I'm attending but not presenting) and everyone who attends always gives rave reviews.

Sign up before July 10 to get a discount, or show up the day of and pay a little more for the same experience. And while you're at it, why not make a weekend out of it and enjoy everything Duluth has to offer? Never forget, winter is coming . . . .

See you all after the Fourth. 

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Upcoming Web Seminar Explaining the Recent Bernard Decision

Wondering what the recently issued Bernard decision means for DWI law in Minnesota?

We've got you covered. We've partnered with MinnCLE to present an hour-long webcast on Wednesday, June 29 from 9:00 - 10:00. The seminar has been pre-approved for one CLE credit, and in it we'll be describing the immediate consequences of the Bernard decision, the potential consequences, and the areas of law that were left unaddressed.

Don't wait until tomorrow - sign up today (Event Code 218996). We're already looking forward to your questions. 

First Time For Everything

The Minnesota Court of Appeals issued a decision this morning unlike any we have previously seen from them.  The court found that a DWI driver's "consent" to a blood draw was not voluntary, and thus, the test result had to be suppressed to remedy the Fourth Amendment violation.  This decision reversed an order issued in Cottonwood County District Court, and is the first instance we are aware of where the Minnesota Court of Appeals found verbal consent to a DWI chemical test as involuntary, regardless of the underlying circumstances.

In the opinion, which can be read here, the Court of Appeals expressed dissatisfaction with the district court's finding that although the driver was so disoriented that it was difficult for the officers to communicate with her, she nonetheless had the capacity to voluntarily consent to the blood draw.  In reversing, the court stated “[a]fter thoroughly reviewing this record, we are left with the firm conviction that [the driver]’s disoriented state rendered her incapable of voluntarily consenting to the blood draw.”

This decision also mirror's last weeks decision by the United States Supreme Court in Birchfield v. North Dakota, a.k.a. "Bernard," where SCOTUS refused to simply, and automatically,  find "implied consent" as true and voluntary consent.

 

 

 

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Charles Ramsay Discusses the Bernard Decision With KARE11 News

Ramsay Law Firm's Charles Ramsay recently appeared on KARE 11 news to discuss the impact of the recently issued Bernard decision, handed down by the United States Supreme Court on Thursday. 

While breath testing is no longer considered to be protected by the warrant clause of the Fourth Amendment, blood testing is, and urine testing is . . . an open question.

Here's the video.