Beating Old Urine and Blood DWIs: Let's Get Retro!

We previously blogged about retroactive application of constitutional rulings.  The lesson was simple: when a law is struck down as unconstitutional, it was always unconstitutional; it is as if the law was never on the books.

Over the past few weeks we have argued this issue at the Minnesota Court of Appeals multiple times.  The state has consistently argued that the recent decisions in Birchfield/Bernard, Thompson, and Trahan should not be applied to cases that arose before those decisions were issued.  So, in their mind, when a driver is threatened with a crime for refusing a blood or urine test, it makes no difference if the threatened crime is later ruled unconstitutional. They say "it was true at the time, no harm no foul."

First, there is a clear harm when law enforcement threatens drivers with an unconstitutional crime.  And second, the threat was never true because the crime was always unconstitutional. 

The United State Supreme Court has identified two different types of constitutional rulings: procedural and substantive.  Procedural rules are designed to ensure accuracy of convictions.  An example of a procedural rule would be the Friedman right to counsel.  These rules do not necessarily go back in time to cases arising prior to the decision--as in Friedman, where the holding was limited to the cases still on direct appeal and not cases that were already decided.

Substantive rules, on the other hand, are rules that change what conduct can be criminalized, and these rulings must be given complete retroactive application.   Like we said before: it is as if the law never existed.  Birchfield, Thompson, and Trahan explicitly prevent states from criminalizing the conduct of refusing blood or urine tests.  These are clearly substantive rules.  

So, if any defense attorneys run into this issue they should not be misled by a prosecutor or Attorney General telling them there is no constitutional violation because the misleading advisory was "true at the time it was read."  No. It was never constitutional, so it was never true.


Can You Now Have Your Prior DWI Refusal Conviction Removed


This week our firm scored a major victory when the Minnesota Supreme Court ruled in our favor in the Thompson case.  It is now settled that Minnesota cannot criminally charge a driver for refusing a urine or blood test.  One of our attorneys, Daniel Koewler, who actually argued the case to the Minnesota Supreme Court, recently spoke with local media outlets about the decision and its future impact on DWIs in the state.  

The bottom line is that while the issue of urine and blood test refusals has been put to bed, a new issue has now surfaced: the questionable validity of previous DWI convictions based on refusing a urine or blood test.  If the refusal law is unconstitutional how can these previous convictions stand?  

This new challenge to old convictions will depend heavily on the retroactive effect of constitutional rulings.  As we pointed out in our previous blog post, when a law is ruled unconstitutional, it is as if the law never existed.  

Obviously, any DWI conviction on someone’s record is bad, and now we have a way to go back and attack any conviction based on the unconstitutional law.

If you have been convicted of DWI for refusing a blood or urine test call Ramsay Law Firm to discuss your options.

Minnesota Supreme Court Rules Minnesota DWI Test Refusal Law Unconstitutional

Today the Minnesota Supreme Court issued two long-awaited decisions dealing with the future of Minnesota's DWI laws.

The first was State v. Thompson, where Ramsay Law Firm argued that Minnesota's DWI Test Refusal law is unconstitutional as applied to any demand for a urine sample. The Supreme Court agreed with us, and struck down the law as unconstitutional. (Click that link for a copy of the Thompson order).

The second was State v. Trahan, where the Supreme Court addressed the concept of "exigent circumstances" -- basically, when are circumstances so difficult that law enforcement can skip the warrant process entirely and simply take a blood or urine sample from a driver. In that case, the Supreme Court made it clear that the State cannot assume that every DWI case has exigent circumstances, and it will take some very special facts in order to actually prove that there was "no time to get a warrant." (click that link for a copy of the Trahan order).

We're very happy to have won this case; it's an issue we've been fighting for over a decade. The only question remaining (with respect to Minnesota's DWI Test Refusal law) is whether or not the State of Minnesota will try to appeal this decision to the United States Supreme Court. Barring further appeal, the constitutionality of Minnesota's DWI laws is now much more settled than it has been for years. 

Minnesota's DWI Laws: Misleading Drivers With Unconstitutional Threats

Marty McFly was almost a goner.  Because he had altered the past, his future father and mother were not going to fall in love, and if they didn’t fall in love, Marty would have never been born.  As his fate came closer to being sealed, he literally started to disappear (thank you 80's special effects). Most are familiar with this story from the 1985 movie “Back to the Future.” 

Another movie reference?  Yes, another movie reference.

It used to be the law in Minnesota that a driver could be charged for refusing a blood, urine, or breath test after being read the Minnesota Implied Consent Advisory.  However, this is no longer true in situations of blood and urine tests.  

We recently argued a case at the Minnesota Court of Appeals that involved a warrantless blood test.  We argued our client’s license revocation should be rescinded (taken back) because our client was told refusing the blood test was a crime, which is a false statement. 

There are prior cases from Minnesota’s highest court which say that when an officer tells a driver refusal is or may be a crime, and that statement is untrue, the driver’s due process rights have been violated.  The court also held the correct remedy for this violation is to rescind the license revocation.

We simply asked the court to apply this rule of law and acknowledge the false information our client received.  However, the Minnesota Court of Appeals declined to do so.  Their reasoning is that “the statement was true at the time it was read” (the incident occurred before the appellate decisions were issued) and therefore, no rights were violated.

This is where our “Back to the Future” reference applies.  You see, one of the main jobs of the courts is to interpret and apply the Constitution.  When a court interprets the Constitution and finds a criminal statute infringes on constitutional rights, the law is thrown out.  And when a law is thrown out as unconstitutional, it is as if the law never existed (also referred to as retroactive application).  This closely mirrors the very scenario Marty found himself in: had his parents not fallen in love at the dance, Marty would have slipped into nonexistence and life would have gone on as if he was never born.  For our purposes, just think of Marty as an unconstitutional law.

It is unconstitutional to charge a driver with a crime for refusing a blood or urine test.  So when an officer tells a driver refusing either of these tests is a crime, they are making a false statement that misleads the driver.  Because the courts have ruled these refusal laws (blood and urine) are unconstitutional,  they were always unconstitutional, and therefore, the threat of criminal prosecution for refusing was never true.  It does not matter when the statement was made or when the decisions were issued.

We recently argued this same issue again at the Court of Appeals and we will provide updates as these challenges develop.  

Where to next?  What is our next big issue?  All I can say for now is "where we're going, we don't need roads." (Sorry, I couldn't help myself).


Sun Still Came Up the Next Day

Football season is here and the Minnesota Vikings are 2-0!  While Vikings fans are very happy now, it was only 23 days ago that Teddy Bridgewater, our starting quarterback, went down with a gruesome injury during practice.  The team was so devastated that Coach Mike Zimmer actually cancelled practice and told everyone to go home.  The devastation was palpable; a once promising season was lost before it began. Zimmer held a press conference that day and said his team would not lay down and feel sorry for themselves, they will continue to fight.  He also mentioned his own life experiences with setbacks and personal loss: “Hey, my wife passed away seven years ago, right? It was a tough day, the sun came up the next day, the world kept spinning. People kept going to work. That’s what we’re going to do.”  That is what the team did and it is how they have started the season so well.

What does any of this have to do with DWI defense?  Simply put, the defense bar had a similar situation after the United States Supreme Court partially ruled against our position in the Bernard/Birchfield decision.  This was the most promising challenge to Minnesota’s DWI laws that had been formulated in quite some time.  And it made it all the way to the United States Supreme Court.  We were excited about the prospect of the highest court in the land telling Minnesota it could not criminally charge a driver for refusing an unwarranted test (essentially simply exercising their 4th Amendment rights).  Unfortunately, SCOTUS did not give us the complete victory we were looking for, especially in breath test cases which make up the vast majority of DWIs in the state.

The defense bar was certainly disappointed in this decision and many attorneys were left wondering, what defenses are left.  As Zimmer said, the sun still came up the next day and defense attorneys kept going to work.  Now, in this post-Bernard/Birchfield world, good DWI defense attorneys have developed new challenges to defend DWIs that have resulted in great results for their clients.

Our newest associate, Jay Adkins, is one of these attorneys.  Just last week, Jay has had two DWIs reduced to careless driving charges, prevented one client from ever losing his license, and got another DWI dismissed outright. 

While things did not look good after the Bernard/Birchfield decision, the sun came up the next day and good lawyers went back to the drawing board and kept fighting.  This is the type of representation the Ramsay Law Firm prides itself on and commits to each and every one of our clients.

Minnesota's Prescription DWI Drug Laws Can Snare Even Innocent Conduct

A 37-year veteran of the Minnesota Attorney General’s Office and staunch proponent of aggressive DWI laws may have been guilty of breaking Minnesota’s DWI laws without even realizing it. His story highlights the absurdity of Minnesota’s prescription drug DWI laws, a story about Minnesota’s Prescription Drug DWI Laws that we've discussed here in the past.

Here's what you need to know: It is a crime to drive a car in Minnesota with schedule I or II narcotics in your system – 

     1.     even when you have a prescription, and

     2.     even when you are not impaired in any way.

Lucky for Minnesotans, the Legislature realizes that this is absurd – that’s why it is an affirmative defense to the criminal charges to prove that you had a valid prescription.

However, the Legislature missed the boat on one key point; even with a valid prescription, you will still lose your license if you have any of a wide variety of prescription drugs in your system. See our previous blog post about DWI-Drugs for more about the law (but that’s not required reading). But here are the two relevant statutes:

The crime of DWI includes:


It is a crime for any person to drive, operate, or be in physical control of any motor vehicle… when: (7) the person's body contains any amount of a controlled substance listed in Schedule I or II, or its metabolite, other than marijuana or tetrahydrocannabinols.


Minnesota Statute, Sec. 169A.20, Subd. 1 (emphasis added).

The law also requires the Commissioner revoke one’s license to drive for the same conduct:

[T]he person submitted to a test and the test results indicate … the presence of a controlled substance listed in Schedule I or II or its metabolite, … then the commissioner shall revoke the person's license or permit to drive….

Minnesota Statute, Sec. 169A.52, Subd. 4(a) (again, emphasis added)

The Road to Hell is Paved with Good Intentions

Want a concrete example of how crazy these current DWI laws are? Last week during a Minnesota DWI Task Force meeting Joel Watne, the retired assistant attorney general we referenced at the start of this blog, attempted to justify the current DWI prescription drug law by telling his own story. According to this story, Mr Watne underwent a surgical procedure and a doctor prescribed him a pain killer – “oxy,” I believe he said. Knowing that it was a crime to drive while having a Schedule II drug in his system and that he would lose his license, he described how a 37-year veteran of the attorney general’s office would make sure he was not breaking the law:

“I stopped taking the medication before I drove.”

Makes sense, right? Mr. Watne’s situation is not unique – thousands undergo routine surgery every year, and are prescribed pain medication. But here’s the thing: how could Mr. Watne know that the oxy was no longer detectible in his blood or urine? One member of the DWI Task Force pointed out that it is not only a crime to have the drug in his system, but it is also a crime to have a metabolite detected, and metabolites can stay in your system for days.

While it would be difficult to estimate the amount of time oxycodone (oxycontin®) would have been detectible in Mr. Watne’s blood or urine, we do know that as oxycodone metabolizes it can be found as morphine for a much longer period of time! (We’ve defended cases like this in other contexts, but the pharmacology is fascinating.)

The Rest of the Story…

The irony is this: Mr. Watne would never intentionally do anything to violate the law, particularly Minnesota’s impaired driving laws – he was partly responsible for drafting many of them. But he may have very well violated them, despite the best of intentions, and without ever posing any risk to himself or others.

If Mr. Watne continues this behavior he could find himself involved in a traffic accident someday with dire consequences. If officers see a prescription bottle and Mr. Watne is a bit dazed (from the accident), they could force him to submit to a blood or urine test that exposes a controlled II prescription drug in his system, either some form of oxy, or (even worse) morphine . . . which he did not even take!

He would need a hell of a good attorney and a forensic expert to help him prove he took a pain narcotic in accordance with his prescription that metabolized into morphine, and he was not impaired. If successful we might be able to get Mr. Watne acquitted of criminal charges, but under the current law, it would be impossible to save Joel Watne’s driver’s license 

Could Joel Watne one day be our client? Unless and until the Legislature changes the absurd consequences of our DWI law, and allows drivers to at least try to provide proof of a valid prescription to defend against a license revocation, the chance exists.

Metrology 3.0: Science as Your Best Defense

I want to bring a scientific challenge to a DWI case of mine,  how do I do it?  This is a question we have received a lot lately from other defense attorneys.  Unfortunately, the only answer to that question is to learn the material.  We have posted numerous times explaining the games the BCA will play on the stand and how the State will attempt to hide the uncertainty of measurement and bias.  

In order to make an effective challenge, the lawyer needs to know the scientific material as well as, if not better than, the BCA.  This means that when the BCA's forensic scientists say or do something that does not fit the scientific community's standards, you need to be able to reference the authorities in the field and discredit the BCA's claim or procedure. (As one of my law school professors would say, "wack em over the head with it.")

The good news is that the National College For DUI Defense is putting on an entire seminar on the subject with some of the leading authorities scheduled to speak.  In fact, one of the presenters has actually been used by our firm in Minnesota DWI cases.  And, of course, I can't forget to mention that Chuck Ramsay will also be presenting.  OH GOOD FOR YOU!

The title of the seminar is "Metrology 3.0: Science As Your Best Defense."  It will be held on November 4-5 in beautiful San Diego!

The complete agenda and link to register can be found here.

Judge Throws Out Breath Test Results - Finds Results Are Not Scientific

Yesterday another judge tossed the DWI test results in a civil, implied consent hearing. In doing so our client’s license revocation was reduced to just 1/12 of the duration and avoids the dreaded “whisky plates” entirely.

Our client (“Mr. N”) was stopped by the White Bear Lake Police Department for driving violations. The officer arrested him for suspicion of DWI and took Mr. N to the police station where he submitted to a breath test. The test, conducted on Minnesota’s DataMaster (DMT) breath test machine, produced alcohol results of .173 and .168. Mr. N had no previous DWI incidents, but because the DMT results were over .16 the state charged Mr. N with a Gross Misdemeanor DWI, revoked his license for 1 year without the possibility of a work permit (ignition interlock permitted), and impounded his license plates.

After Mr. N hired our law firm the prosecutor dismissed the .16 Gross Misdemeanor charges and our client pleaded to a reduced DUI charge. The matter was then set on for hearing to determine the length of the driver’s license revocation and whether Mr. N’s license plates should be impounded.

At the implied consent hearing the Commissioner of Public Safety called the arresting officer and breath test operator to the stand. We called an metrology expert to testify. The attorney general declined to call an expert in rebuttal, despite the fact a forensic scientist from the Minnesota Bureau of Criminal Apprehension’s (BCA) breath testing section was in the courtroom and ready to testify.  

The judge heard the testimony of the officer and the expert witness and ruled the Commissioner had failed to demonstrate that the testing method was valid, reliable, and accurate. The court wrote:

“Although the BCA complies with most, if not all, of the other essential elements of measurements required by ASCLD, … the DMT used to administer the test on [Mr. N] was not measured for [test] uncertainty and therefore it is impossible to be sure that it would ensure a reliable result.

Petitioner accurately argues that the unfitness for purposes of using the breath test reports generated by the machine is clear: the Court is required to evaluate the accuracy of the measurements being presented to it, and in doing so be able to accurately determine if the measurements are capable of proving that a driver's breath alcohol concentration was at or above a very precise threshold. This Court agrees with Petitioner in that without knowing how accurate these results are, such a step is impossible. A reliable, trustworthy reading is necessary because Petitioner's privilege to drive a motor vehicle are affected by the reading obtained.”

You can download the entire redacted order here.

This is not the first Ramsey County judge who has made such findings. Last month another judge found the breathalyzer results to be unscientific for similar reasons.

This case demonstrates that judges are willing to take their “gate keeper” role seriously, and will suppress DWI breath tests when the DataMaster fails to produce scientifically valid, reliable and accurate results. 

Daniel Koewler In The News: "Okay Boys, Let's Take Some Pictures"

The Ramsay Law Firm--specifically Daniel Koewler-- has once again made the news!  This time it was to discuss our recent victory at the Minnesota Court of Appeals (Janssen v. Commissioner of Public Safety) in the Minnesota Lawyer. Koewler, who argued the case at the Court of Appeals, discussed the opinion and its significance.  

Koewler is cited as saying the opinion is just as "consequential [as the Bernard case] but for very different reasons."

What reasons?  Well, this holding opens the door for drivers to challenge the taking of their driver's license and license plates based on a breath test of at least twice the legal limit (0.16), or more.  These challenges are often based upon scientific principles such as measurement uncertainty, incorrect application of the machine's bias, and even ketones in the breath of diabetics improperly affecting test results.

It is imperative, under due process, that drivers be allowed make these challenges to test results of 0.16 or more.  As Koewler states in the Minnesota Lawyer, "based on [the BCA's] data, anyone who is up to .09 might not be above .08 and that range gets broader the higher the alcohol threshold." Therefore, a test at or near the .16 line is subject to more uncertainty and bias then a test at the .08 line.  Now, we will finally be allowed to litigate these issues in court and show judges around the state that these test results are scientifically invalid and unfit for the purpose of revoking a driver's license.

Victory at the Court of Appeals

The Ramsay Law Firm just scored a major victory that will affect thousands of DWI cases and driver's license revocations each year. 

Earlier today the Minnesota Court of Appeals issued a published opinion in Janssen v. Commisioner of Public Safety and reversed a district court order in an Implied Consent case.  The district court judge had ruled that whether a test was accurately evaluated at or above the aggravated threshold level of twice the legal limit (0.16), was not a proper issue in an Implied Consent hearing.  In reversing, the Court of Appeals read the statutorily provided defenses together and found that because one can challenge the evaluation of a test result at the 0.08 level, one may also challenge the evaluation of a test result at the aggravated (0.16) level.

As you may suspect, this case and its holding are related to measurement uncertainty and scientifically based challenges to the validity of breath tests in Minnesota.  

Check back later this week as we will post further analysis and consider some of the implications of this decision.