Constitutional Crisis Crescendos: Future of Minnesota's DWI Laws More Uncertain Than Ever

We previously wondered if Minnesota was in the midst of a Constitutional Crisis due to the constantly shifting nature of how the Constitution has been interpreted in DWI cases.

There might not be a need to wonder anymore. Yesterday, a district court judge upheld his oath to uphold the Constitution when he completely dismissed the crime of DWI test refusal on constitutional grounds.

This has happened before, but here is the shocking part: this judge's decision was in direct opposition to the recent decision in State v. Bernard. This judge concluded that, despite Bernard, he was obligated to follow the law that has been handed down by the United States Supreme Court - citing to numerous Supreme Court cases that were directly applicable, and yet completely omitted from the analysis in Bernard.

If you're the type of person who has had prior experience with the criminal justice system, you'll immediately see just how revolutionary this decision was. In our close to 20 years of practice, we've never seen it. But if you don't understand how rare this type of decision is, can't figure out why it matters, or just want to hunker down and do some reading (and who doesn't?) then keep reading. But go grab a cup of coffee first; this is going to be a long, informative trip.

And welcome to the front lines of a Constitutional Crisis.

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Lawyers Weigh In On The "Inevitable Warrant" Doctrine

We've already pointed out the Constitutional Crisis that is brewing in Minnesota. But what are other lawyers saying about the recently minted "Inevitable Warrant" doctrine?

Carol Weissenborn is a well-respected public defender and law professor, and she occasionally blogs about recent judicial decisions over at the Minnesota Supreme Court Criminal Blog. We've featured her insights in the past, and are going to do it again here today.

Ms. Weissenborn's blog post discusses what we call the "inevitable warrant" doctrine and what she calls the "hypothetical warrant rule." However you name it, it is an understatement to call this new doctrine troubling - but rather than put words in Ms. Weissenborn's mouth, we'll just provide a link to her insightful blog post and let our readers decide.

In the post, you can see Ms. Weissenborn's teaching background come to the forefront, as she carefully explains to the reader the true ramifications of what Minnesota's appellate courts are doing in the wake of Missouri v. McNeely.

The Fourth Amendment is over 200 years old, and has guided our free nation through World Wars, the rise of facist and totalitarian police states, incredible amounts of civil unrest, one full-on civil war, and a variety of different "wars" on crimes. Legislatures have tried to undermine the Fourth Amendment over and over since it was first ratified, and have had surprisingly little success. It will take a well educated and freedom loving population to withstand the most recent onslaught - so if you care at all about civil liberties, please read Ms. Weissenborn's blog and give this topic some serious consideration.We are - and not just because it's our job.

Is There A Constitutional Crisis Brewing in Minnesota?

"The point of the Fourth Amendment which often is not grasped by zealous officers is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate, instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime. Any assumption that evidence sufficient to support a magistrate's disinterested determination to issue a search warrant will justify the officers in making a search without a warrant would reduce the Amendment to a nullity . . . 

Justice Robert H. Jackson
 
Justice Jackson may be turning over in his grave.
 
On Monday, the Minnesota Court of Appeals released their decision in the case of State v. Bernard, finding it constitutional to criminalize the act of refusing to consent to a warrantless seaerch. The Court reached this conclusion by explicitly holding that a warrantless search is justified on the grounds that if the police had asked for a search warrant, they would have gotten one.
 
Please read the quote at the start of this post, particularly the italicized portion. Then, read this quote from Bernard:
 
“So at the time the officer asked Bernard whether he would submit to a breath test, the officer could have just as lawfully asked an independent jurist to issue a search warrant to test Bernard’s blood. Like the hypothetical warrantless test available to the officer in Wiseman, a hypothetical warrant-sponsored test is also a “constitutionally reasonable police search.” * * * * We recognize that the officer did not actually possess a search warrant at the time of his request, but the constitutional and statutory grounds for a warrant plainly existed before the request.”
 
The language used in the Bernard case appears to be in direct and inescapable conflict with well-established precedent from the United States Supreme Court. If the Bernard decision withstands scrutiny on appeal, Minnesotans will find themselves in dire straights without even fully realizing it. Under this logic, there is no more freedom from warrantless searches - not just in DWI cases, but anywhere law enforcement seek to uncover evidence. Under this logic, a law making it illegal to deny law enforcement entrance to your home, or access to your computer, would be . . . perfectly constitutional.
 
The Bernard decision can be appealed to the Minnesota Supreme Court; similarly, whether or not the Minnesota Supreme Court accepts review, the United States Supreme Court still has the final say on this issue, as it involves one of our core (perhaps the core) constitutional protections.
 
We're not just going to keep an eye on the Bernard case because we primarily practice as DWI defense attorneys; this case bears careful scrutiny as a simple, ordinary citizen. The primary difference between a free society and a police state is the Fourth Amendment; under the logic of Bernard that distinction is completely gone.
 
Rest assured, we have every intention of redoubling our efforts to strike down what we honestly believe is an unconstitutional law, and will continue to litigate this issue for all of our clients. While this fight rages on, we'll keep in mind another quote from another Supreme Court Justice, Justice Brandeis, who said the following:

“Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding."

Justice Louis Brandeis in Olmstead v. United States (1928)

Will the entire Fourth Amendment to the United States Constitution be eliminated in a quest to punish drunk drivers? Not on our watch.

 

Blind Reliance on Roadside Tests and a Cop's Word

As Will Lerner reports for Yahoo, it was a flat 0.00 on the breath test. 

It was a big negative on the blood test.

Still, Larry Davis, a man pulled over and arrested for DUI in Texas last year after apparently swaying a bit and using his arms for balance during the roadside tests (not uncommon for many drivers, drunk or sober), was nonetheless asked to blow into the Breathalyzer.

Then, despite the 0.00 result, the police arrested Davis and drove him to the stationhouse, where they asked him to provide a blood sample.

The test came back negative. 

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Should Drivers Get One Free Swerve?

That was the question once posed by Chief Justice John Roberts: Do drivers get “one free swerve” before the police can pull them over? Or is an anonymous tip of impaired or reckless driving enough to justify the stop?  

Last October, Mark Sherman with the Associated Press gave us this Roberts quote:

“The stakes are high. […] It will be difficult for an officer to explain to the family of a motorist killed by that swerve that the police had a tip that the driver of the other car was drunk, but that they were powerless to pull him over, even for a quick check.”

Roberts said this after the Supreme Court denied cert. on an appeal out of Virginia involving a drunk driver outed by an anonymous tipster. The driver in that case appeared to have won his or her argument.

But just last month the Supreme Court considered Navarette v. California, another anonymous tipster case, in which a speeding silver Ford pickup (with four large bags of marijuana inside) apparently ran another vehicle off the road.

The driver of that other vehicle dialed 911.

As we’ve previously discussed, what happened next is why the case ultimately made its way to the Supremes: Even though the cops did not personally see the pickup driver commit any traffic violation – which, generally speaking, is required to justify a stop – the cops pulled him over anyway. The cops, in other words, pulled him over based on the 911 call and nothing else.

The issue, according to SCOTUSblog.com, is whether the Fourth Amendment requires an officer who receives an anonymous tip regarding a drunken or reckless driver to corroborate dangerous driving before stopping the vehicle.

In Navarette, the police apparently followed the silver Ford pickup for a few minutes – but saw no traffic violation – before they flashed lights and sirens. The fact that police saw no evidence of dangerous driving indicates that the pickup driver posed no immediate threat to others on the road, despite what the anonymous tipster said.

But given what Roberts said earlier about the danger of the “one free swerve” that gets someone killed, it’s clear that the Supremes may decide to carve out an exception to the rule requiring reasonable suspicion. We now wait for the Court’s opinion.  

Let’s hope that the Court decides not to do so. As the National Association of Criminal Defense Lawyers in its amici curiae brief said, such an “irregular driving” exception – one carved out just for suspected drunken or reckless drivers in which any unknown tipster can rat them out – would quite possibly “swallow” the Fourth Amendment whole.

Your State Can't Tell My State What to Do

Image: http://www.flickr.com/photos/12801018@N00/6304888398/in/photolist-aB9cEo-8rrJPQ-bbfXcr-85HWQo-4xa5yk-91Xrg1-4SKS9x-8WnTvo-9LhdTu-82ZEEB-fMT5P-eRSxE7-a8wHff-8WnTtw-8WnTuj-9Nbehf-322S7k-9N8sGK-9Nbebd-9N8t1x-9N8sMT-9N8sTa-9N8sXP-9NbdLy-7xRisY-yMJTv-6ZLo6S-6Jq7vj-bxwMvQ-dna8Ns-5tRt4-5MHH4d-3bwyGh-3bwzUG-6nSidn-5eWwM1-5eWqNN-8nnKC3-5pxb2S-4qXuZF-6QRh4g-mp3wq-rZPCc-F1KwJ-cpTngf-8weA1B-7q8Hza-4N5mb8-8vn7hw-4zkRcY-buWkhsMinnesota is its own sovereign power, meaning that it’s free to wield its authority how it wants, more or less, so long as the wielding is done within its borders. Cross the line into Wisconsin to the east, Iowa to the south, or the Dakotas to the west – each of which are their own sovereign powers – and Minnesota’s authority goes limp.  

The individual states, in other words, generally cannot tell each other what to do. But that’s exactly what happened in a recent case involving a truck driver’s Commercial Driver’s License.  

The driver, a young single father from North Carolina, was picked up while on a haul in Minnesota for driving under the influence. He blew .051, over the .04 limit for CDL holders, so the Minnesota sovereignty, in the form of its Department of Public Safety, promptly stripped the man’s CDL from him. Note that his CDL was issued by North Carolina, not Minnesota. 

Now, you would expect the Department of Public Safety to yank a commercial driver’s license whenever a driver is accused of being over the legal limit. Here’s the language of the DPS’s Commercial Driver Disqualification notice, as written on the notice given to our driver from North Carolina: 

“You cannot drive a commercial motor vehicle in Minnesota or any other state while your driving privilege is disqualified. Although you may use the card for identification, it is against the law to present it as a valid commercial driver’s license or permit.” [Emphasis added.] 

Again, this is the notice put in the hands of the truck driver in this story. And the driver, obeying the DPS imperative not to drive anywhere in the country, stopped driving, despite having a family to care for.   

We took one look at this case and said, “this isn’t right, and we need to fix this.” 

What did we need to fix? Take a closer look at that “emphasis added” part, the part in bold font, which states that this commercial driver was forbidden from driving – not only in Minnesota – but in any other state, including his home state of North Carolina. 

Minnesota’s sovereignty grew an extra arm or leg, apparently. At most, Minnesota can notify North Carolina about a driver’s DWI arrest and CDL violation, but cannot rescind the driver’s right to use his CDL in North Carolina. That’s North Carolina’s call. So in this case we argued that DPS’s Commercial Driver Disqualification notice was misleading, and because it was misleading, it violated our client’s due process rights.  

The judge agreed, and rescinded our client’s CDL revocation and disqualification. And that’s just one example of the type of ingenuity and zeal that it takes to be an effective DWI attorney.     

 

Kansas Finds DWI Implied Consent Law Unconstitutional

In 2012, we released a blog detailing the ruling in a then-unremarkable case out of the State of Missouri - a little case captioned Missouri v. McNeely.

Since then, the McNeely case has gotten a little more press.

Today, America's heartland issued another decision that may have broad reaching consequences in the future. A Kansas Appellate Court just ruled that their DWI Implied Consent law is unconstitutional. Specifically, the case of State v. DeClerck concluded that the purportedly "implied consent to chemical testing given by drivers on our state's roads" is absolutely not the same thing as "consent under the Fourth Amendment."

The Court repeatedly said, in no uncertain terms, that statutes like the Implied Consent law can not and do not trump constitutional principles, like the right to be free from warrantless searches and seizures. In the end, the State of Kansas concluded that you cannot demand that driver's give up their Constitutional rights just by getting behind the wheel of a vehicle.

These same arguments are being raised in Minnesota, and will likely make their way to the United States Supreme Court in the same way that McNeely did. But until that happens, we'll continue to fight this issue out case by case, judge by judge, county by county.

Breaking News: Minnesota BCA Won't Certify DWI Breath Test Results

Today I uncovered a startling, groundbreaking fact about Minnesota’s own Bureau of Criminal Apprehension – specifically its breath testing section. Apparently, the breath testing section of the BCA is not the scientifically accredited body that we were led to believe. While the BCA is technically accredited by the American Society of Crime Laboratory Directors, the truth is that this accreditation only extends to blood and urine alcohol testing – not breath testing. This is nothing less than an admission that the results of Minnesota breath tests are not scientifically valid, accurate or reliable, and should not be used to revoke a driver’s license or convict a driver for DWI.

How can this possibly be? The breath testing section of the BCA is responsible for maintaining a fleet of approximately 200 DataMaster DMT instruments, which are used in approximately 20,000 breath tests each year. That is a lot of tests, tests that are used to take away driver’s licenses and put drivers in jail – and every single one of those tests were unaccredited.

Take a peek behind the curtain: The BCA forensic crime laboratory advertises its accreditation as an ASCLD/LAB-International Testing Program for its blood and urine alcohol testing. However, this accreditation comes at a price: as a BCA employee recently explained in court, the BCA completely divorced the breath testing section from the rest of the forensic crime laboratory, knowing that the lackluster procedures used by the BCA breath test section would jeopardize the entire lab’s accreditation unless they found a way to separate the two sections. The BCA employee then went even further, and admitted that the BCA itself won’t certify DataMaster DMT test results, and then candidly admitted that no organization in existence would accredit Minnesota’s breath testing program.

200 machines. 20,000 test-per-year. And the BCA won’t certify a single result, won’t even consider breath tests as part of the same lab that performs blood and alcohol tests. None of these breath tests are scientifically valid, and like other un-accredited “junk science” should not be used in court as evidence.

This lack of accreditation may be tied in part to the BCA’s general hostility towards following the basic tenants of science, such as actually reporting inaccuracies in their tests like the rest of the scientific community. We predicted this behavior back in 2012, and then later pointed out on our Facebook page that the BCA only had until December 31, 2013 to start cooperating or they would risk losing their accreditation. From what we can tell, the BCA did bring its blood and urine testing programs into compliance before the deadline; they just did not bother with their breath testing program, instead jettisoning the whole program in an attempt to save the rest of the lab.

This is the point where good defense attorneys roll up their sleeves and get ready to renew the assault against shoddy science, making sure that judges and juries understand how little weight should be given to test results that lack basic accreditation.

Minnesota Bureau of Criminal Apprehension Procedures Found Lacking In DWI Case

Drivers in Minnesota can have their license revoked for a variety of reasons besides alcohol. Using street drugs (heroin, methamphetamine, and so forth) will lead to a revocation, as will prescription drugs. It’s quite a stretch to say that someone should lose their license for using a Vicks VapoInhaler, though . . . and even more of a stretch to make the claim that someone suffering from nasal congestion should be deemed a meth head. But that’s how the Minnesota BCA seems to operate.

They tested a DWI blood sample, and decided to report the sample as positive for methamphetamine. The driver, having never used meth in her life, had an independent laboratory test the same sample. That lab reported a big “negative” for meth.

How could two independent laboratories, using the latest in technologies, test the same sample and come up with separate results? That was the question presented to a Sterns County Judge, who weighed the evidence and ultimately concluded that the BCA had overstepped its bounds in deciding to report this driver’s test as positive for meth.

The BCA has had numerous, documented problems following the basic scientific standards established by the rest of the community of forensic toxicologists. They still utilize first-void urine alcohol testing, while the rest of the world has effectively deemed that practice as little more than junk science. They have serious problems storing samples, destroying evidence due to their own errors. They knew their breath test device was broken, but didn’t bother to fix it, even when the mistake could result in mistaken convictions.

So, back to the driver who used over the counter medicine to counter a common cold and got labeled as a meth user. It turns out that when the BCA tested that driver’s blood, it detected levels of methamphetamine so low that the rest of the scientific community would have deemed the sample as “negative.” But not the BCA; despite the real risk that the molecular similarities between the compounds found in Vick’s VapoInhaler and actual, illegal meth could create a “false positive,” our BCA reported the result in a way that would guarantee criminal charges and a license revocation.

What’s even more interesting is that the independent lab that also tested the sample actually detected a higher concentration of “meth” in this blood sample (.009 mg/L) versus the BCA’s reading (.0074) yet still (correctly) reported her test as “negative.” 

The Court, with the aid of forensic scientist Thomas Burr’s testimony, addressed the conflicting evidence from the BCA and the independent lab. The Court ultimately held that the BCA’s disregard for the “general convention of science” meant that the government failed to meet its burden to prove that the driver was actually violating Minnesota’s DWI laws at the time she was driving, and therefore reversed the license revocation.

The BCA may be designing its lab policies to ensure a maximum amount of convictions, versus doing its duty to disclose the full scientific truth according to established scientific principles . . . but that's why we have defense attorneys.

You'll want to stay tuned - we've got a truly shocking new development to disclose shortly, detailing major problems with the BCA and its DWI breath test division.

 

Minnesota Court of Appeals Discusses Consent in a Post Brooks World

Yesterday, the Minnesota Court of Appeals issued its first decision in the wake of State v. Brooks. It was the case of State v. Drum, and you can read it here.

This latest decision is "unpublished" meaning the decision does not bind other judges or other cases -  in a sense, the decision only really matters to Mr. Drum himself. But in another sense, it proves a chilling reminder of just how far down the rabbit hole Minnesota has gone with respect to how our courts define the word "consent."

The Drum decision attempts to clarify the decision in Brooks, and states that "as a matter of law" there is nothing coercive about telling someone that if they don't "freely and voluntarily consent" to a search they will be committing a new crime, right there, in front of a police officer. Law enforcement agents obtained incriminating evidence against Drum, evidence that cannot be obtained without a warrant, by "convincing" him to waive his constitutional right to that warrant . . . and they did it by telling him he'd be committing a brand new crime if he didn't hurry up and waive his rights. Some members of the Court of Appeals have interpreted this type of situation to constitute "free and voluntary" consent as a matter of law.

What's particularly troubling is that in this particular case, the government attorney actually conceded (admitted) that it was not arguing that Mr. Drum consented - the government basically told the Court during oral arguments that there was no consent in this case. Despite this concession, the Court still found that Drum "freely and voluntarily" consented.

Shortly after the United States Supreme Court reaffirmed the rule that DWI tests do, in fact, require warrants, we speculated about the changes Minnesota would have to make to our own DWI laws to make sure that drivers were not being coerced into "consenting" to warrantless searches. Back then, we had no idea that Minnesota judges would actually consider threats to charge people with new crimes as non-coercive. While contrary to standard logic and a lot of prior case law, this approach does have the benefit of not having to amend any laws to conform with the Constitution.

But if you read the Drum decision, pay close attention to the last couple of paragraphs, where the Court of Appeals provided a . . . friendly reminder . . . to the attorney to keep things civil. It appears that the attorney that argued the Drum case was fairly frank in his opinions regarding the merits of the Brooks decision, to a degree that alarmed the Court of Appeals. Whether he went too far or not is not for us to say, but we already know that other judges also feel the exact same way, and have also expressed some fairly frank opinions regarding the Brooks decision.

Minnesota is turning into a bubbling pot, just short of a rolling boil, as more and more drivers "consent" to give up their Constitutional rights under the dual threat of being told they are "required by law" to give up their rights and that if they don't give up their rights, they're committing a brand new crime.

Right here, right now, both myself and Mr. Ramsay have no intention of holding back in our attacks against these "consensual" tests. When something is so contrary to common sense, so contrary to decades of prior United States Supreme Court cases, and so contrary to our client's interests, it would be impossible to sleep at night without knowing that we put 100% of our effort, experience, and enthusiasm into attacking these warrantless searches from every angle.

This isn't just about drunk drivers - not anymore. It's about government agents handcuffing, arresting, and taking Minnesotans to jail, then telling them that they are required by law to waive a constitutional right, and then telling them that if they don't waive that right they are committing a crime . . . and then, months later, being told that they "freely and voluntarily" waived that constitutional right like good citizens. There is still ample room to challenge this type of Orwellian conduct; there has to be, because the alternative would leave us living in a world that no free man or woman would want to be a part of. Every Minnesotan - even those who never touch a drop of alcohol - is affected by what is going on in our courts right now, and every Minnesotan needs good defense attorneys to use every means at their disposal to fight against this type of government conduct.