Minnesota DWI Defense Blog : Roseville DUI Defense Lawyer & Attorney : Ramsay Law Firm : Minneapolis, St. Paul, Minnesota

After months of negotiations, expert analysis of the breath test machine has come to a halt – before even getting started.

Last June the state of Minnesota and CMI announced they had secretly negotiated a resolution to the source code dispute.  Attorneys who represent drivers charged with DWI objected, noting the agreement denied them reasonable access to the machine’s software that determines the guilt or innocence. 

Since then, source code coalition leaders hired computer experts to analyze the Intoxilyzer 5000 source code and began preparation for software analysis in Kentucky.  CMI, however, has continued to thwart coalition efforts, refusing to provide access meeting industry standards for software analysis.

Upon reaching an impasse with CMI, this week the source code coalition sent this letter to Judge Frank, the federal court judge who oversaw the state agreement with CMI, and to Judge Abrams, the Minnesota state court judge who is overseeing the consolidated state court cases.  The coalition is asking the judges to remove the barriers erected by CMI, so the coalition can begin its review of the source code. 

Check back soon for further updates.

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Recently, the Superintendent of the Minnesota Bureau of Criminal Apprehension sent a “fluff piece” to the Minneapolis Star Tribune titled, “Some Love for Forensic Scientists” touting why everyone should have “confidence in the quality of the BCA scientists’ work.”

The whole theme of this article can be summed up in one of the first sentences, where the Superintendent states, “without the painstaking work performed by forensic scientists . . .  I'm confident justice would be served far less often in real life.”

This statement baffles me, and should baffle you too. Where was this confident sense of justice when the Intoxilyzer 5000 was failing? Are we honestly expected to have confidence in an agency that knew for years that the Intoxilyzer was experiencing critical flaws, and boldly refused to fix those errors because of fears that fixing their mistakes would undermine the aura of perfection the BCA attempted to create around the Intoxilyzer? That’s neither justice nor good science.

And what about the BCA’s DWI urine testing regime? Minnesota is probably the only state to actually use first void testing regularly for DWI prosecutions. In fact, even other countries, those with far stricter DWI laws, won’t use urine testing for DWI prosecutions.

When a scientific agency is the only one doing something a particular way, it can only mean one of two things – either they are on the cutting edge of science, or they’re stubbornly clinging to science that has already been clearly and unequivocally refuted.  I can tell you for a fact that the BCA’s treatment of urine testing isn’t cutting edge science.

What we have here is an agency that claims, in the newspapers, to be using scientific principles to ensure justice in the courtroom. What every Minnesotan needs to know, however, is that those scientific principles are typically ignored by the BCA for purely political reasons, and that always leads to injustice.

A truly independent scientific agency would not refuse to fix its Intoxilyzers for fear of looking foolish. An agency dedicated to sound science and fair convictions would not cling to an outdated and discredited method of urine testing to convict Minnesotan drivers of DWI.

Maybe a better title for that article would have been, “Science Only When it Suits Us.”

If you or your attorney have bought into the belief that the scientific evidence presented by the Minnesota BCA is unassailable, you’re wrong. We fight this evidence every day - and win. If you’re being charged with a crime based on supposedly scientific evidence, call the Ramsay Law Firm. We don’t believe the hype – we get results.

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This week, Minnesota Governor Pawlenty proposed new DWI laws in an effort to significantly reduce drunk driving in Minnesota.  Highlighting the changes is a requirement that all offenders install ignition interlock devices into all of their vehicles to be eligible to drive.  The proposal applies to first time DWI offenders.

The proposal also aims to toughen other aspects of Minnesota DWI laws, including lowering the alcohol concentration limit from 0.20 to 0.15 for enhanced penalties; applying enhanced sanctions to all second-time DWI offenders, regardless of blood alcohol concentration; and reforming drivers’ license revocation laws.

Governor Pawlenty appears to be making a genuine effort to reduce drunk driving.  It is well known that to be successful, DWI laws must emphasize rehabilitation.  This proposal is a step in the right direction. However, it is riddled with pitfalls - this law is no panacea. 

Topping the list of pitfalls are the unrealistic expectations.  Supporters of the proposal claim the changes will nearly eliminate repeat offences.  "Drunk drivers will no longer be able to get behind the wheel of a car without proving their sobriety," Pawlenty said. (Pioneer Press, Jan. 20, 2010).  For that statement to be accurate, every vehicle in Minnesota would need to be permanently equipped with a breath testing locking device as standard equipment.  This is not the case.  The requirement is limited in duration and other unequipped vehicles are available for use.  What’s stopping a person from driving another’s vehicle?  What safeguards are there after the device is removed?

Additionally, the governor’s cost expectations are deceptively low.  The actual cost to drivers is quite high.  Although the cost varies from company to company, drivers must pay to have the device installed and removed, in addition to the monthly fee. 

Already, DWI drivers must pay a reinstatement fee of $680.  Currently, drivers are required to pay this before they are eligible for a work permit.  The current proposal eliminates the availability of work permits and hardship licenses.  As a result, the total cost of reinstatement and interlock would be cost prohibitive to many, particularly in this economic climate.  Based on my observations, Minnesotans will drive without a valid license if they cannot afford to pony up the funds necessary to drive legally.  In the end, the high costs of the program will create more criminals while falling short of expectations.

Not only will the changes not meet expectations, but they will further erode citizens’ constitutional rights (the “DWI exception” to the constitution).  Our current Minnesota DWI laws operate under a “shoot first, ask questions later” mentality.  When a driver’s alcohol test is .08 or more, their license to drive is automatically revoked, based solely on the accusation.  Under this plan, a person would be forced not only to endure the license revocation, but forced to pay well over a thousand dollars to be able to drive.  Yet drivers would receive no refund In the event they ultimately prevail by demonstrating the test was erroneous or invalid, or that their rights were otherwise violated.  

So are the proposed changes a panacea or a patsy?  Time will tell....

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Minnesota’s DWI law (Chapter 169A) consumes 186 pages on Westlaw.  By comparison, the entire First Degree Murder law easily fits on a single page.

Without an attorney who has the experience, knowledge and skills in the field of DWI law, you run the serious risk of losing what otherwise should be a winning case. This is especially true when it comes to the some of the arcane and obscure rules that apply in the civil “Implied Consent” case that trails along with almost every criminal DWI case.

In the context of a criminal case, any attorney worth his or her salt should know that the government must prove that an allegedly intoxicated driver was either driving, operating, or in “physical control” of a motor vehicle.

What most attorneys don’t know - probably because it isn’t even listed in a Minnesota statute - is that the State is also required to prove that a person was driving, operating or in physical control of a vehicle in the civil Implied Consent case. This is an issue that can win cases, but first you have to recognize that the issue exists! 

The civil implied consent law seems to limit the issues a driver may raise at the implied consent hearing. Note that none of the Implied Consent Statute does not permit a driver to challenge whether he or she was actually driving.  Instead it permits a driver to challenge only whether the police officer had “probable cause.”

The scope of the hearing is limited to the issues in clauses (1) to (10):

(1) Did the peace officer have probable cause to believe the person was driving, operating, or in physical control of a motor vehicle or commercial motor vehicle in violation of section 169A.20 (driving while impaired)?

(2) Was the person lawfully placed under arrest for violation of section 169A.20?

(3) Was the person involved in a motor vehicle accident or collision resulting in property damage, personal injury, or death?

(4) Did the person refuse to take a screening test provided for by section 169A.41 (preliminary screening test)?

(5) If the screening test was administered, did the test indicate an alcohol concentration of 0.08 or more?

(6) At the time of the request for the test, did the peace officer inform the person of the person's rights and the consequences of taking or refusing the test as required by section 169A.51, subdivision 2?

(7) Did the person refuse to permit the test?

(8) If a test was taken by a person driving, operating, or in physical control of a motor vehicle, did the test results indicate at the time of testing:
(i) an alcohol concentration of 0.08 or more; or
(ii) the presence of a controlled substance listed in schedule I or II or its metabolite, other than marijuana or tetrahydrocannabinols?

(9) If a test was taken by a person driving, operating, or in physical control of a commercial motor vehicle, did the test results indicate an alcohol concentration of 0.04 or more at the time of testing?

(10) Was the testing method used valid and reliable and were the test results accurately evaluated?

Despite the statutory limitations to the contrary, drivers can and should challenge whether the state can prove they were driving when appropriate.  Many attorneys miss this since the statute does not seem to permit it.

Too many attorneys give a passing glance to the maze of DWI statutes, shrug their shoulders, and decide to plea their clients and outright waive the right to a hearing. At Ramsay Results, we’re always one step ahead, looking beyond the law to make sure that any issue that can be raised, will be raised. It’s how we practice law - and it’s how we get results.

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The State Bar Association has created a new certification for Minnesota Lawyers:  Specialist in Criminal Law.  The Association has not created DWI or DUI Specialization for Minnesota Attorneys.

Minneapolis criminal defense attorney Andrew Birrell, who chaired the committee that worked on the criminal law certification project, said that the specialist designation is meant to be a meaningful thing. “We think the exam is fair and will recognize attorneys who are very well qualified to represent people accused of crimes… and to represent the government [as prosecutors]”, he said. “We’re hopeful people will avail themselves of the opportunity.”

The standards and requirements for Certification of lawyers as Criminal Law Specialists include:

1. Demonstrating “Substantial Involvement in Criminal Law Practice.” This is includes demonstrating five years of continuous practice in the area of criminal law with 25% of their full-time practice devoted to participation in criminal law;

2. Passing a written exam to demonstrate sufficient knowledge, proficiency and experience in criminal law;

3. The standards require Lawyers to show trial experience direct and cross examination of a lay witness, time in trial, contested hearings and by providing writing examples;

4. Lawyers are also required to provide references of Judges, opposing counsel and others.

5. The board also ensures the lawyer meets the ethical requirements.

Certification is good for a period of six years, unless the Specialist is decertified as provided for under these Standards. Specialists are required to be recertified at the end of every six year period.  During that period, the lawyer must maintain minimum continuing legal education requirements.   After six years, the lawyer must be recertified in order to maintain the designation.

This first exam for criminal law specialist is Saturday, April 24, 2010.

I clearly meet the litigation requirements and plan to sit for the exam in April.

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One Hennepin County judge wrote in a source code order that it may be malpractice for a lawyer not to seek breath test software.  That remains to be seen and depends primarily on the outcome of our experts' analysis.  Practically speaking, however, the source code coalition has prepared matters to point where it requires little effort from attorneys to take advantage of this issue. 

The upside is obvious -- drivers' DWI breath tests could be thrown out.  There is little down side -- a minimal contribution from each lawyer and a delay necessitated by the review. 

So the question is: is your lawyer a member of the Minnesota Intoxilyzer 5000 Source Code Coalition. 

If not, get another lawyer. 

I've listed of all members below as of today.  In addition to this, all state public defender cases are included.

Here's the latest on the expert analysis of the software:  While CMI, the Intoxilyzer 5000 manufacturer, has yet to provide us reasonable access, Marsh Halberg, one of the other lead attorneys, has made significant progress. Our experts are ready to go. We hope to have them in Owensburo Kentucky by the end of the January to begin the software review.

We'll post more updates as they become available.

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Practicing on the cutting edge of criminal defense law is highly rewarding for both our clients and our attorneys. It wasn’t too long ago that we renewed our attack against Minnesota’s illogical urine testing regime for DWI suspects. We carefully crafted a unique legal argument and have already seen success for our clients in the district courts as a result of this argument. Such arguments require a strong scientific understanding – not just legal experience – and take a determined lawyer to prove effective in court.

Just last week, we brushed up on our studies and held another Frye-Mack hearing.  This type of hearing is a key part to our attack against a urine testing regime that is being used to convict Minnesota drivers who may not have had any alcohol in their bloodstream when they were driving. If you think that last sentence sounds absurd, wait until you read what the government presented as evidence that Minnesota’s method of urine testing is a “generally accepted practice” in the scientific community.

-          The government expert initially relied on numerous studies that purportedly supported the way Minnesota conducts urine tests. On careful cross examination, however, the expert was quickly forced to admit that the authors of these studies actually oppose the way Minnesota uses urine testing in DWI cases.

-          The government witnesses were unable to speak about a single other state that uses urine testing for DWI’s in the way that Minnesota does. Again, cross examination was able to reveal to the court that Minnesota is the only state to utilize first void urine samples to convict DWI suspects.

-          When we had our chance to present testimony (something we’ve perfected since we first formulated this argument) we presented volumes of unrebutted testimony, expert opinion and scientific articles that make one thing clear: Minnesota needs to stop using urine tests to convict drivers of DWI.

-          We introduced a new peer reviewed scientific treatise, "Relationship between Blood and Urine Concentrations..." by Dr. A.W. Jones to be published later this year in Forensic Science International.  Dr. Jones’ data supports his previous conclusions that Minnesota urine testing is bad science.

-          In a bombshell, the former supervisor of the Minnesota Bureau of Criminal Apprehension’s toxicology section, Glenn Hardin, testified he submitted a written proposal to rid the state of urine testing to determine a specific level of alcohol in DWI cases.  His political supervisors, however, thwarted his attempt to rid Minnesota of unscientific urine testing.

The testimony has all been heard; now we’re waiting for the judge to issue a ruling. Given our experience in the area, we’re expecting a victory for our client, and hope to be able to post again soon with another judicial order explaining what every other scientist (outside the Minnesota Bureau of Criminal Apprehension) understands: Minnesota’s urine testing regime is unreliable and inaccurate.

If you’ve been charged with a DWI, and the government is using the results of a urine test against you, you’ll want attorneys with the background, experience and drive to make sure that your rights are protected. That means calling Ramsay Law Office, where we don’t just let the government get their way – we get results.

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In our first trial of 2010, a Hennepin County jury found my client not guilty after a trial in Minneapolis. 

The prosecutor had charged “Eric” (not his real name) with DWI after his arrest in August last year.  The police officer stopped Eric’s Mercedes convertible after crossing over the center line three times, almost striking another vehicle.  Eric agreed to perform standardized field sobriety tests consisting of the Horizontal Gaze Nystagmus test (eye test where the person follows the officer’s finger or pen), the One Leg Stand, and the Walk and Turn test (walking heel to toe on a line). 

The officer arrested Eric after the field sobriety tests.  Eric submitted to a urine test.  The Minnesota Bureau of Criminal Apprehension (BCA) tested Eric’s urine sample and reported his alcohol concentration was over the legal limit of 0.80.  As a result of the test result, the state charged Eric with two charges of Second Degree DWI (3d in ten years) and forfeited his $80,000 automobile.

Before trial I obtained Eric’s urine sample from the BCA and had it retested by an independent lab.  The reported result was .076, just UNDER the legal limit. 

We began trial Tuesday with pre-trial motions.  The judge denied all of our motions (the first time that has happened in my career!) and we began picking a jury.  I called no witnesses to testify and relied on my cross examination to establish reasonable doubt in the jurors’ minds.  

The jury returned Thursday afternoon with a verdict of Not Guilty. 

Many believe DWI cases are not winnable.  Most attorneys unfortunately believe all they can do is “negotiate” with the prosecutor and do not challenge the evidence or take the cases to trial.  As a result of challenging the evidence and winning the trial, the state will likely return Eric’s $80,000 vehicle.

If you have been charged with DWI in Minnesota, call Minneapolis DWI lawyer Chuck Ramsay immediately.  We don’t negotiate – we win!

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The Minnesota Supreme Court issued an Order consolidating Minnesota's Intoxilyzer 5000 Source Code cases. 

The Supreme Court assigned ALL cases to Judge Abrams. This does not apply to public defender cases.

Judge Abrams is an excellent choice.  He has done very well organizing and planning the First Judicial District's source code consolidation.  His case management order follows the federal court system's multi-district litigation rules.

Criminal defense attorneys should contact lead counsel Chuck Ramsay, Marsh Halberg or Jeff Sheridan for more information.

If you have been arrested and submitted to a breath test by the Intoxilyzer 5000, make sure your attorney is a member of the source code coalition.  Otherwise, your rights may not be vindicated.

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