D(efense)-Day: Opening a Second Front In Defense of the Constitution

In early 1944, Nazi Germany (the polar opposite of a country based on constitutionally guaranteed freedoms) was struggling to retain the territory it had captured, while the Allies were bombing Germany from the skies in anticipation of an amphibious landing for a new battle - the "Second Front".

In early 2015, the U.S. Constitution (which is the polar opposite of a totalitarian dictatorship like Nazi Germany) is struggling to maintain the rights that it affords all citizens, including those privacy rights enjoyed by everyone who lives and drives in the State of Minnesota.

The struggle intensified when the Minnesota courts threw two constitutional grenades. First, the Minnesota Supreme Court concluded that, in DWI cases, the State can lock drivers up, tell them they are required by law to submit to a warrantless search, tell them that it's a crime to say no to that warrantless search, and then successfully claim that the search was valid because the driver "consented." 

Next, the Minnesota Supreme Court concluded that DWI breath tests are not technically "searches" anymore, so the Constitution doesn't even apply to most DWI cases (a decision that flies in the face of legal precedent).

But there is hope - we're attacking on a Second Front, and we've already got boots on the ground!

The first new battleground is the Supreme Court of the United States. On June 15, 2015, counsel for the driver in State v. Bernard filed a petition for certiorari with the highest court in the land. The U.S. Supreme Court now has the opportunity to restore constitutional civil liberties to Minnesota drivers. The Court can end this war by rejecting Minnesota's test refusal law and restoring voluntariness to the legal analysis of what "consent" actually means. If you want to read the petition asking for review, click here and enjoy the show

The second front is federal district court. We have filed two petitions for a writ of habeas corpus challenging Minnesota's DWI test refusal law. If you want to read our recent petition, click here.

The protections of the Fourth Amendment in Minnesota will be re-won on one of these two new federal battlegrounds. Until then, the constitutional battle rages on. 

Why get a warrant when you can use a statute instead?

We the People understand and appreciate that law enforcement’s job is to investigate crime by collecting evidence to be used in a criminal prosecution. In the DWI context, an officer’s primary goal is to generate evidence of a suspect driver’s blood alcohol concentration.

Are you aware that there is no legal requirement that law enforcement pursue license revocation when an officer suspects a driver of DWI? Chemical testing may be required at the discretion of the officer. The implied consent advisory only comes into play if the officer chooses to pursue a revocation.

In other words, an officer doesn’t have to read the implied consent advisory to a DWI arrestee; the officer has a choice. She has two options; both accomplish her primary goal of gathering criminal evidence, but only one is constitutional: (1) read the implied consent advisory that makes it a crime to refuse a chemical test, or (2) submit probable cause to a judge to get a search warrant. Convenience or Constitution?

From the officer’s perspective, of course it is more convenient to rely on a statute to execute a search than it is to go to the trouble of getting a warrant.

But We the People didn’t write the Fourth Amendment from the officer’s perspective, for government convenience. The Constitution didn’t create rights. We the People have individual rights, and We the People wrote the Constitution to ensure that government honors and protects those rights. (And We the People certainly didn’t empower the legislature to create offense-specific exceptions to the warrant requirement.)

We the People wrote the Constitution to regulate our government. It sure would be nice if government would play by the rules. 

Will the Test Refusal Law Fall on Its Face?

Once again, we can see that the legal landscape is reaching one of those tipping points, where everything we thought we knew is turned on its head.

The United States Supreme Court just issued a decision, in California v. Patel, that should prompt those who believe Minnesota's test refusal law is constitutional to stop what they're doing, sit up, and listen.  

The bottom line is: We can and will keep making the argument that Minnesota's test refusal statute is unconstitutional until we win.

California v. Patel stands for two basic principles:

1.   Just like laws that involve other constitutional rights, state laws that involve the Fourth Amendment are subject to facial challenges. By "facial", the Supreme Court means that some laws are so blatantly unconstitutional as written--regardless of any possible fact scenario to which they might apply--that no court could enforce the law without violating the Constitution. The Court found the law in Patel, which authorized warrantless searches of hotel registry documents on demand, to be facially invalid.

2. SCOTUS said (again!) that it is unconstitutional for the state to make it a crime to refuse to submit to a warrantless search. To put things in perspective:

In Patel, the statute struck down by the Court made it a crime for hotel owners to refuse to permit a search of the hotel's guest registry: who checked in, how long they stayed, how they paid for the room, etcetera.

Here in Minnesota, the test refusal statute makes it a crime for drivers suspected of DWI to refuse to permit a search of their body: the chemical composition of their blood, breath, and urine. 

The Constitution--on its face--provides far more protection for individuals' privacy and bodily integrity than it does for the comings and goings of guests in a hotel database.

We'll post soon about our recent efforts to bring Minnesota's test refusal law before the federal courts for review - but the takeaway message today is that Minnesota's DWI test refusal law may soon fall on its face.

Cherry Picking with the BCA

For a driver with a breath alcohol concentration (BrAC) that straddles one of the statutory cutoffs (0.04, 0.08, 0.16), measurement uncertainty is reasonable doubt -- reasonable doubt that the BCA refuses to report.

Consider this scenario adapted from the National Academy of Sciences' Strengthening Forensic Science in the United States: A Path Forward (2009):

A driver gives three breath samples. The device calculates three results: 0.08, 0.09, and 0.10. The different test results arise from a number of factors: the internal components of the test device, calibration, and environmental characteristics, to name a few. Without accounting for these factors--by presenting the average of the three samples, 0.09, as an actual BrAC--the prosecution is able to argue that there is no reasonable doubt.

That is not science.

It is scientifically impossible to achieve 100% accurate results. In this scenario, the variation between the three breath sample results clearly indicates some uncertainty of measurement. Because of this scientific reality, test results must be accompanied by the area around those results, known as a confidence interval, in which there is a high probability that the actual BrAC lies.

How is this confidence interval calculated? Here, the average is 0.09 (the sum of the three values, 0.27, divided by 3) and the standard deviation is 0.01 (the three results deviate from one another by 0.01). This means that a two-standard-deviation confidence interval (0.07, 0.11) has a high probability of containing the person’s true BrAC. Here, for the per se crime of driving with a BAC at or above 0.08, science establishes reasonable doubt.

But … not in Minnesota. Here, the BCA refuses to report measurement uncertainty in breath tests, even though other state courts have held that:

Given the requirements of due process, the discovery rules and [rules of evidence], therefore, the State must provide Defendants with a confidence interval for each Defendant’s breath-alcohol measurement. Absent this information, a defendant’s breath-alcohol measurement will be suppressed.

In other words, cherry picking is not allowed when it comes to science.

Might Bernard Have a Silver Lining?

Every cloud has a silver lining, they say.

Bernard is a heck of a cloud, but we may have caught a glint of silver in a district court opinion this week.

It appears that Bernard's silver lining may be a return to the universal voluntariness of consent analysis, and the end of the DWI consent analysis double standard. (Follow these links to conduct your own comparison of non-DWI consent analysis and DWI consent analysis.)

In a district court order filed on Monday, the court ultimately used Bernard to validate the warrantless breath test, but the court found no voluntary consent:

The consent exception is not applicable in this case. Although Defendant ultimately submitted to the test, he made clear that he was not doing so voluntarily, as he believed his constitutional rights were being violated. As such, the Court must consider whether another exception to the warrant requirement applies.

Just like that.

Did we mention that Bernard filed his Petition for Certiorari with the U.S. Supreme Court on Monday? Bernard may go down as the case that restored meaningful consent. Silver lining indeed!


"Your rights are no good here."

I think I know how the drafters of Magna Carta felt.

I was on call this weekend, taking late night calls from drivers arrested for DWI. It’s common for an arrestee to ask,

How can the police do this? I thought I had rights under the Constitution. They’re telling me that I have to give them blood or urine because it’s a crime not to. They won't even honor my right to remain silent. I don’t understand.

I think to myself, "Yeah, but those rights are no good here."

I tell the arrestee,

You’re right. In most other states you would have the right to a warrant, and you could remain silent, or refuse to give evidence, without automatically being charged with another crime. 

Unfortunately, in the DWI context, Minnesota isn't like other states. Here, in your situation, it is a crime to exercise those rights. In Minnesota, the only way to not incriminate yourself for the crime of test refusal is to surrender your right to a warrant from a judge, and submit to a warrantless search.

Without fail, after the call, I sit at my kitchen table and think, "Are we officially back at square one?" Have we regressed to pre-Magna Carta times?

The constitutional right we value the most—no deprivations of life, liberty, or property without due process of law—began with Magna Carta. According to Chief Justice John Roberts, Magna Carta “laid the foundation for the ascent of liberty” and constitutional democracy.

In a nutshell, 800 years ago in England, King John was a tyrant. He took property and inflicted punishment without rhyme or reason because, as he famously said, “The law is in my mouth.”

On June 15, 1215, English barons presented King John with a written ultimatum, Magna Carta. They demanded legal certainty and fairness, a rational system of common laws, and the guarantee that judgment and punishment would be meted out by their peers based on evidence, and not arbitrarily from the throne. King John agreed to the barons' terms (for about 3 months).

Magna Carta’s 800th anniversary couldn’t have come at a better time for Minnesota. I'm looking forward to being able to tell arrestees, "your constitutional rights are good here," and then going back to sleep.

Your Voluntary Consent Is Required

For DWI suspects in Minnesota, the right to consult with counsel has no bearing on the voluntariness of their “consent” to give blood, breath, or urine for testing.

Drivers have a constitutional right to refuse to consent to a warrantless search, and a statutory right to refuse to permit a chemical test, but lawyers can't advise drivers to exercise these rights, because doing so is a crime, for the client and the lawyer.

Under Minnesota law: Every person who commits or attempts to commit, conspires to commit, or aids or abets in the commission of any act declared in [Minnesota Chapter 169A - Driving While Impaired] to be an offense, whether individually or in connection with one or more other persons or as a principle, agent, or accessory, is guilty of that offense, and every person who falsely, fraudulently, forcefully, or willfully induces, causes, coerces, requires, permits, or directs another to violate any provision of this chapter is likewise guilty of that offense.

Minn. Stat. § 169A.78.

It gets worse (or better, if you’re a prosecutor). When a Minnesota DWI suspect tells the police:

"There is no way I will voluntarily consent to this test without a warrant! I know my rights!"

her attorney is ethically bound to advise her to submit to the warrantless search against her will. Any other advice would be a violation of Rule 1.2(d) of the Minnesota Rules of Professional Conduct:

“A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal ... .” 

Sorry drivers, in Minnesota, your voluntary consent is required.

An Open Letter to the Minnesota Legal Community

Dear 32nd State,

In Missouri v. McNeely, the United States Supreme Court made it unequivocally clear that chemical tests in the DWI context are not exempted from the Fourth Amendment warrant requirement by the search-incident-to-arrest exception. 

Noting that “[s]earch warrants are ordinarily required for searches of dwellings,” we reasoned that “absent an emergency, no less could be required where intrusions into the human body are concerned,” even when the search was conducted following a lawful arrest. 

Missouri v. McNeely, 133 S. Ct. 1552, 1558, 185 L. Ed. 2d 696 (2013).

There is no shame in making a mistake, so long as it is corrected at the earliest opportunity. I trust that this error will be corrected post-haste.

Yours truly,

The Constitution of the United States of America

Supreme Law of the Land

Stuck in the Middle With . . . Infrared Spectroscopic Uncertainty of Measurement

It's an iconic scene from a great movie - Mr. Blonde from Reservoir Dogs gives his hostage an earful while listening to Steelers Wheel's "Stuck In The Middle With You." Now, you can over analyze Tarantino's decision to use this song during such a graphic scene, but it doesn't change the fact that it's a pretty good song.

And it does a pretty good job describing the state of scientific evidence in Minnesota, especially when it comes to DWI breath tests. Because right now, Minnesota occupies a strange middle ground - government experts will bend over backwards to avoid being forced to explain the very serious limitations and shortcomings of alcohol breath testing, but when you really press them, they'll start to agree with you.

Compare this to the clowns to the left of us - the growing amount of states that mandate proper reporting of measurement uncertainty for all breath tests. Washington State not only reports the uncertainty of their breath test instruments, but in a real sense they literally wrote the book on how to do it right

To the right, meet the jokers - states like Alaska, where the legislature went so far as to prohibit defense attorneys from even mentioning how inaccurate breath tests are. Talk about insanity . . . 

Clowns to the left of us, jokers to the right, and here in the middle, we've got Minnesota. Here, when it comes to breath tests, we'll admit that our machines are not 100% accurate . . . but we won't admit just how inaccurate. Currently, the Minnesota BCA will admit that their machine isn't perfect at measuring "control samples" (lab created alcohol samples which barely resemble human breath samples), and will even provide a certificate admitting their errors if you demand it. 

But look at that certificate - it says that at a 0.08, the machine is inaccurate to +/- 0.005. That will make a difference in cases where the breath test result is 0.084 . . . but is it the full story? I assure you, it is not. Compare that certificate to the information provided in states like Washington, and you'll discover the stark truth: that 0.005 that the BCA will "admit" as a range of error? Yeah . . . that's about 1/5 of the actual error range. They won't admit that fact (not yet, at least) but that means that at a 0.08, you can expect to see tests ranging as high as 0.10 that could arguable be UNDER the legal limit.

We'll explain this legal defense to DWI in more detail over the course of this summer, but just know that it's only a matter of time before it becomes widespread knowledge. Most recently, the state of New Mexico joined the ranks of scientifically rigorous states in reporting the uncertainty range with their breath tests; until Minnesota reaches that point, we'll just continue to get test results thrown out of court until the Minnesota BCA does the right thing and starts following very basic scientific practices. 

Minnesota Lowers the Legal Limit For Driving While Intoxicated

Regular followers of our blog know that earlier this year we were carefully tracking the Minnesota Legislature's proposed changes to our DWI laws. The Minnesota legislature put together a final bill for Governor Dayton's signature dealing with a wide variety of topics - but the one we noticed right away was the decision to lower Minnesota's DWI legal limit

Assuming this bill is signed by the governor, it will go into effect on August 1 of this year, and will drop the "enhanced" DWI legal limit from 0.20 to 0.16. So while this isn't the (bound to happen) drop from 0.08 to 0.05 that will likely happen sooner rather than later, it does mean that a lot more drivers who are arrested for DWI will be facing a gross misdemeanor offense versus a misdemeanor.

When Minnesota last dropped the legal limit - from 0.10 to 0.08 - the House of Representatives put together a very interesting research memorandum that is interesting to read even today. We don't have a similar memo to go along with this new change in the legal limit, but there is some other interesting data to peek at.

According to the Minnesota Department of Public Safety, in 2013 the average blood alcohol concentration (BAC) for first-time DWI offenders was 0.148. Those were all squarely misdemeanor-level offenses in 2013 . . . but will be dangerously close to the gross-misdemeanor threshold under the new law. And as for repeat offenders? The average BAC for repeat offenders in 2013 was 0.165 - over the newly crafted "enhanced" legal limit.

What will be the end result of these changes? Here's some theories:

1. A lot more first-time DWI arrestees will be facing gross misdemeanor charges, with a maximum penalty of a year in jail, a $3,000 fine, or both. Anyone who tests over 0.16 will also be expected to post "max bail" of $12,000 bail before they will even be let out of jail (currently, only drivers who test at or above 0.20 are required to post a hefty amount of bail money prior to being released).

2. The majority of second-time offenders are going to wake up to discover that the State just forfeited their vehicle and intend to sell it for profit. DWI Forfeitures were already on the rise before this change - after this change in the law, forfeitures will become very commonplace indeed. 

These new changes will certainly increase the stakes for anyone arrested for a DWI - now, more than ever, even having a single conviction on your record sets you up for a lot of potential problems down the road. Whether these changes are good, and will serve the goal of reducing drunk drivers, is up for debate. But what is almost certain is that the governor will sign them into law