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. 

SCOTUS Issues Bernard Decision

Today we all received the long-awaited decision from the United States Supreme Court in Bernard v. Minnesota (technically it was three consolidated cases, but here we'll just refer to the whole decision as "Bernard.")

First things first -- if you want to read the opinion, you can find it by clicking right here

 

 

 

On to the meat of it: The Bernard decision consists of three basic holdings:

1. DWI breath alcohol tests now qualify as "searches incident to arrest." That means they are not protected by the warrant clause of the Fourth Amendment and a driver can constitutionally be penalized criminally if they refuse to submit to such a test. This implicates everyone who refuses a breath test.

2. DWI blood alcohol tests do not qualify as "searches incident to arrest." That means that drivers have the absolute right to say "no" or "get a warrant" if an officer demands a blood test, and Minnesota's DWI test refusal law is unconstitutional with respect to demands for blood tests. This implicates everyone who refuses a blood test.

3. If a driver says "yes" to a demand for a DWI test after being told that refusal to submit to that test is a crime, the State can't claim that the driver's "implied consent" to submit to the test means that they "actually" consented. This potentially implicates everyone who agrees to submit to any type of test. 

That's what Bernard says; here's what it doesn't say:

1. What is the status of urine tests? The vast majority of states don't even try to use urine tests in DWI cases; Minnesota is the rare exception. Bernard leaves open the question of whether or not a urine test can be considered a "search incident to arrest" or whether it has the same protections as a blood test (note that Ramsay Law Firm argued this exact issue in front of the Minnesota Supreme Court this month, and the answer is in the pipeline). 

2. What does it mean to "consent" to a blood, breath, or urine test . . . especially after being told that "refusal to take a test is a crime (when that is only true sometimes). The Supreme Court disposed of the concept of "implied consent" when it comes to the government's ability to try and obtain criminal evidence, which opens the door wide open for the Courts to reconsider what it takes to actually "freely and voluntarily" consent to a DWI test. 

Some of the consequences of the Bernard decision:

1. We're going to see a renewed emphasis on the pitfalls of breath testing, and our firm will be spending much more time exposing the serious limitations that impact breath tests on behalf of our clients. Law enforcement will undoubtedly be using breath tests at every opportunity in order to avoid the warrant requirement, meaning the critical shortcomings that affect breath tests (and not blood tests) are going to become much more glaring.

2. The Minnesota Legislature is going to need to rewrite Minnesota's Implied Consent law. As written, the Advisory read to every arrested driver informs them that they are "required by law" to submit to testing and that "refusal is a crime," statements that are simply not true in light of Bernard.

We'll be providing much, much more analysis of the decision in the near future -- in the local media, at seminars sponsored by Minnesota CLE, and of course, right here on our blog. Stay informed.

But for now, things are certainly interesting. 

Backdoor Breath Testing 4: Legal Standards From Our Implied Consent Law and Standard Jury Instructions (Part III)

Last week was a very busy week for Ramsay Law Firm, but here’s the final part in our recent trilogy of blog posts dealing with the legal standards that apply to uncertainty challenges to breath testing. The first two parts are here and here.

This post addresses some of the legal challenges the government raises when asked to explain why breath tests are so inaccurate. These are not challenges based on science – they are attempts to try and keep science out of the courtroom (which is troubling because they are often being raised by government scientists).

Margin of Error: The first attempt to keep science out of the courtroom is to try and call it irrelevant. This argument dates back several decades, when an old line of cases rejected attempts to apply a “margin of error” to breath tests. This argument looks good on its face, and falls apart completely when you think about it.

Back in the 80’s, the argument was that there was a “theoretical margin of error” that applied to breath tests – and that some “fudge factor” needed to be added to every breath test. In effect, defense attorneys were attempting to re-write the Implied Consent statute; instead of proving an alcohol concentration of 0.10 (the legal limit in the 80’s) the defense wanted the government to actually have to prove 0.11 (or some higher number, depending on what they wanted this “fudge factor” to be). The Court’s rejected any theoretical or “alleged margin of error” on the legal ground that the statute simply wasn’t written that way.

But pretending that “uncertainty of measurement” is somehow the same as “margin of error” only works if you’re not paying attention to both the science and the law. We already explained how the law actually demands that the government provide evidence of exactly how uncertain its breath measurements are, but the science is even more straightforward.

In fact, the very organization that accredits the BCA goes to great lengths to explain that “margin of error” is a completely different concept than “uncertainty of measurement.” Here’s the document so you can read about it yourself. Here is the biggest highlight:

Great care is taken to distinguish between the terms ‘error’ and ‘uncertainty.’ They are not synonyms, but represent completely different concepts; they should not be confused with one another or misused.

In layman’s terms, “margin of error” was a cute theoretical concept, but “uncertainty of measurement” is premised on the 100% verifiable fact that “there is always uncertainty” and we can never know the true value of what we are measuring . . . and the 100% verifiable process that exists for determining exactly how uncertain every measurement actually is.

Minn. Stat. §634.16: The other interesting attempt to keep science out of the courtroom is the government claim that the Legislature requires us to keep science out of the courtroom.

Think about that for a minute . . .

Here’s the statute this argument is based on: the relevant portion says, “the results of a breath test . . . . are admissible in evidence without antecedent expert testimony that a [breath test device] provides a trustworthy and reliable measure of the alcohol in the breath.”

Again, in layman’s terms, this statute simply says that the government can put breath test results (scientific evidence) before a judge or a jury without first bringing in an expert to “lay the foundation” for the evidence. Basically, breath test results get fast tracked into court in a way that no other scientific evidence is allowed to be presented.

But arguing that this statute allows the government to avoid admitting how inaccurate their measurements are completely misses the point; the statute assumes that a breath test result is a “trustworthy and reliable measure of the alcohol in the breath,” but so does the concept of uncertainty of measurement. In fact, the VIM (cited to in previous posts) outright states that measurement uncertainty calculations are “based on the assumption that no mistakes have been made in performing the measurement.”

Measurement uncertainty only applies if we already assume that the measurement in question was trustworthy and reliable – it simply involves applying the final step and explaining how trustworthy and how reliable the measurement actually is.

So, where are we? We know the scientific community demands the reporting of measurement uncertainty, we know our statutes not only allow it but effectively demand it, and we know the State of Minnesota is not doing it.

Next up, we’ll provide transcripts and commentary on how these challenges have been shaping up in court over the last few months. 

MSCJ: Blood, Bernard, and Beyond!

The Minnesota Society of Criminal Justice will be hosting their 31st annual DWI Seminar on Friday June 17th at the Minneapolis Marriott Northwest.  The title of this year’s seminar is “Blood, Bernard and Beyond.”

For anyone who has not attended any of the previous seminars, this is the preeminent DWI seminar for DWI defenders, put on by some of the biggest names in the field— Chuck Ramsay, Jeff Sheridan, just to name a few.  This event is only offered for defense counsel!

Below is the schedule of events:

 

8:30 - 9:00:          Registration

9:00 - 9:05:          Opening Rant by Paul Ahern

9:05 - 10:05:        National Speaker: Gas Chromatography in Blood and Urine Testing by Josh Lee,   Attorney, Grand Lake, Oklahoma

10:05 - 10:45:      Metrology and Reliability of Breath Testing by Chuck Ramsay and Dan Koewler

10:45 - 11am:      MORNING BREAK

11:00 - 12pm:      Ethics Panel: They Can't Do That! Unethical Things Prosecutors Do, and Shouldn't!! by Jeff Ring, Rory Durkin, Jim Ventura, Charles Segal and David Reyes

NOON- 1pm:         LUNCH

1:00 - 1:45:          Bernard and Beyond by Jeff Sheridan

1:45 - 2:30:          Legislative and Case Law Update by Doug Hazelton

2:30 - 2:45:          AFTERNOON BREAK

2:45 - 3:15:          A New Way to Attack Minnesota's Forfeiture Law by Faison Sessoms

3:15 - 3:35:          Forfeiture Reform in the Legislature by Defense Attorney and State Senator Ron Latz

3:35 - 3:55:          Representing the Celebrity DWI Client by David Valentini

3:55 -4:10:           When the Prosecutor Tries Your Client in the Press by Cean Shands

4:10 - 4:30:          Court Rules & Policies on Release and Bail in DWI Cases by Jill Oleisky

4:30 - Social Hour: Bring Your Guitar for songs about this area of law

 

If you would like to attend, the Enrollment Form with instructions can be found here.

 

 

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Supreme Court Update (Of Sorts . . . )

Things are about to get interesting when it comes to the state of DWI law in Minnesota. In the near future we've got two big events: The United States Supreme Court's decision in Bernard v. Minnesota, and oral arguments before the Minnesota Supreme Court in the Thompson and Trahan cases.

Bernard v. Minnesota

The United States Supreme Court issues its decisions on Mondays at 9:30 a.m. EDT, and goes on summer recess in July. Because the Court almost always issues a decision in the same term that a case was argued (and Bernard was argued this term) we can expect a decision sometime in June. 

So, we should get an answer regarding the constitutionality of Minnesota's DWI breath testing program within a month -- either on June 6, June 13, June 20, or June 27. For what it's worth, I'm guessing we'll get a decision on June 20; others believe that because Bernard was one of the last cases argued, it'll be one of the last decisions issued, and we'll get an answer to all our questions on June 27. 

We'll be posting the decision as soon as it is issued, along with our initial analysis, so no need to sit on the courthouse steps in Washington D.C., just check our blog for the next few Mondays any time after 9:30 a.m.

Thompson & Trahan

On the local front, Ramsay Law Firm will be arguing the Thompson case at the Minnesota Supreme Court next Wednesday, June 8, at 10:00 a.m.  The Minnesota State Appellate Public Defender's Office will be arguing the Trahan case one hour earlier, at 9:00 a.m. That means the whole morning will be dedicated to one question: is it constitutional to criminalize the act of refusing to submit to a warrantless demand for a blood or a urine test.

Seating at the Minnesota Supreme Court is limited, so if you want to observe the arguments live, it wouldn't hurt to get there a little early. In the alternative, you can always wait until Wednesday evening to watch the video rebroadcast

 

Backdoor Breath Testing 4: Legal Standards From Our Implied Consent Law And Standard Jury Instructions (Part II)

This blog post is the second sub-part of the fourth part of a multi-part series which is attempting to explain the serious problems plaguing alcohol breath testing in Minnesota. If you couldn’t follow that last sentence, it’s because 1) it was worded poorly, and 2) you’re not caught up.

Go read part one, then part two, then part three, then the post leading up to this post. There, now I don’t have to re-cover a bunch of ground, and can get right into the meat of it all.

This will hopefully be a little shorter than the last couple posts – here, we’re just explaining why Minnesota’s refusal to follow standard best practices when reporting their breath alcohol measurements is such a critical problem when it comes to prosecuting alleged drunk drivers.

In any criminal prosecution (as opposed to the civil prosecution that deals solely with license revocations) the State bears the burden of proof, and that burden is “proof beyond a reasonable doubt.” That’s a very heavy burden; it’s based on the notion that, “It is better that ten guilty people go free than one innocent person suffer unjustly.

What it doesn’t mean is that once they State produces a breath test result, the case is over unless and until a defense attorney somehow discredits the test. Read that again, it’s important – the burden of proof is always with the State. That means that jurors have an obligation, a duty, to look at every piece of evidence presented by the State in a very, very critical manner. Technically, a defense attorney shouldn’t have to say anything in a trial; in a very real sense, a defense attorney is simply there to focus the jury’s attention on weak, questionable evidence, which is something they should already be “trying” to do anyway (get it, “trying?”)

Those jurors get instructions from the judge at the end of every trial, laying out the legal standards to apply to the evidence presented. When it comes to breath alcohol measurements, that standard jury instruction is pretty powerful: CRIMJIG 29.12

The defendant took a breath test to determine alcohol concentration. The State has introduced evidence of the testing method used and the results of the test that was administered to the defendant. You must evaluate the reliability of the testing method and the test results in determining whether the defendant's alcohol concentration was 0.08 or more within two hours of the time of driving.

Remember those earlier posts (that I knew you just reread, so they are fresh in your mind) that discussed how it is impossible to evaluate the reliability of a measurement without knowing how inaccurate the final measurement is? How every measurement is nothing more than a “best guess” and that the measurement is effectively worthless unless you also include the information regarding how uncertain the final result is? Now, take a bald breath test measurement, devoid of all that scientifically necessary information, and tell me this:

How on earth can a jury “evaluate the reliability of the test results” when the information they need to do so is being deliberately withheld by the State?

I don’t know how either. That’s why, in our opinion, these results are not even admissible in a jury trial – all they do is force the jury to speculate regarding the critical element of an offense. And if there is one thing that is a big no-no in criminal court, it’s speculation. Especially when someone’s liberty is on the line.

It’s really that simple. We’ll wrap up part four with one more post, which details some of the legal objections we’ve seen to the arguments raised in this post and the previous one. They’re worth studying, because it makes them easier to reject. We’ll see you soon. 

University of Minnesota: Wrestling with Xanax

Yes, it is a crime to possess Xanax without a proper prescription from a health care provider.  This question has arisen in the recent days and has been discussed at length by many local sports radio stations, TV personalities, and newspapers.

For the non-sports fans, or those who have not heard the recent reports, here is a synopsis of what we know so far: University of Minnesota Wrestling Head Coach J Robinson discovered that some of his players got their hands on 2,500 pills of Xanax from an old teammate, and were selling the drug in the dorms.  Robinson decided to handle the matter internally instead of notifying authorities.  He had his wrestlers turn the pills over to him and required each wrestler to write an essay about what they learned from the incident.  You can read the StarTribune’s story here.

Of course, this is terrible news for the University of Minnesota and their entire athletic department.  Interim Athletic Director Beth Goetz and incoming Athletic Director Mark Coyle will have their hands full dealing with the public relations backlash from this incident.

All athletics and university issues aside, in the debate over the seriousness of these allegations, there is a major misunderstanding of the legal consequences of possessing Xanax without a valid prescription.  In fact, a local morning radio show had a caller yesterday morning voice his opinion, saying, essentially, “well at least they were not out committing felonies.”  -- This is a paraphrase of course.

That caller is 100% wrong.   Xanax is the commercial name for the drug: Alprazolam, which is a schedule IV controlled substance in Minnesota.  This classification makes it a felony both to sell the drug, or merely possess it without a valid prescription.  Both possession and the sale of Xanax, no matter how small, qualifies as a fifth degree controlled substance crime, punishable by up to 5 years in prison, a $10,000 fine, or both.  Selling any amount of Xanax to someone under the age of 18 is a fourth degree controlled substance crime, punishable by up to 15 years in prison, a $100,000 fine, or both. 

It should be noted that this law will be modified on August 1, 2016, reducing the crime to a gross misdemeanor for first time offenders that possess no more than one dosage unit  of Xanax. However, the modification will have no affect on cases occurring before that date.

What should one do if they are faced with allegations of possessing or selling Xanax, or any other illegal narcotic?  Simple, don’t speak to anyone about it and immediately call a lawyer.  If your coach, parent, administrator, or anyone, tells you to write an essay on what you learned from your mistake—don’t!  Sure, they may have told you this will be handled internally, but it is not that simple.  Your paper will be “discoverable,” meaning that it is not protected and may be obtained by law enforcement.  And once law enforcement has their hands on it--voila—they have a signed confession, from you, admitting to a felony drug offense. 

On the other hand, if you immediately call a lawyer, that communication is protected by the attorney client privilege.  This means that the lawyer is required to keep the content of the conversation to himself, and cannot be forced by anyone, including the courts, to reveal what was said.

If you are ultimately charged with any controlled substance crime you are facing grave consequences, as your criminal record will begin to affect many aspects of your life; losing your job, student loans, and your residence are just some of the major consequences of a controlled substance conviction.  However, this is not a hopeless situation as there are ways to keep this off your record that involve getting the evidence suppressed or even getting a prosecutor to agree to a resolution that does not involve a conviction.

Backdoor Breath Testing 4: Legal Standards From Our Implied Consent Law And Standard Criminal Jury Instructions (Part I)

Our previous posts in this series discussed why law enforcement prefer breath tests when investigating DWIs, why it is important to report how uncertain breath test results actually are, and why untraceable and inaccurate breath tests are a serious problem. Today, we’re going to expand on that last point, and highlight the numerous ways in which Minnesota law actually requires the State to disclose how uncertain their breath tests are in Court in order for those results to actually be useful (or admissible!).

Generally speaking, it is important to realize that every DWI is split into two separate court cases: a criminal case (dealing with consequences like jail and probation) and a civil case (dealing solely with the revocation of a person’s driver’s license). In each case, the breath test result is the best (and sometimes only) evidence the State can use to punish a driver. Which is why both the civil and criminal law make it clear that the State cannot continue to misleadingly report breath test results as a bald number.

Implied Consent (Civil Case)

Before the State of Minnesota can revoke a driver’s license, they need to prove that the driver’s breath alcohol concentration was at or above 0.08. There are multiple statutes dedicated to this procedure, referred to as our Implied Consent Law. The most important aspect of the Implied Consent Law is the right to judicial review; the State can take someone’s license if a breath test says they were over the legal limit, but everyone has the right to have a judge independently review the evidence and determine if that license revocation was actually appropriate.

One key part of the Implied Consent law controls this judicial review; that particular statute is where the Minnesota Legislature told our judges “here are all the things you should consider when you’re asked to decide if a driver’s license revocation was appropriate and legal.” Two provisions immediately jump out:

  1. Section 169A.53, subd. 3(b)(8) – did the test result indicate at the time of testing an alcohol concentration of 0.08 or more; and
  2. Section 169A.53, subd. 3(b)(10) – was the testing method use valid and reliable and were the test results accurately evaluated

Remember what we explained previously. When it comes to measuring breath alcohol concentration, we can never know the actual value we are trying to measure, we can only come up with a best estimate. That’s why the scientific community says it is essential/necessary/obligatory to report all measurements along with enough information to say exactly how close our “best estimate” really is.

Now, if a judge is just given a test result that says, say, 0.10, we’ve got two questions to answer:

  1. Does this estimate of the true value actually prove that the true value was “0.08 or more?”
  2. Can we “accurately evaluate” this estimate without knowing how good of an estimate it really is?

When a breath test result is reported as a misleadingly simple, bald number, the answer to both questions is always going to be “no.” Just because my thermometer says it’s 34 degrees outside doesn’t mean it is actually above freezing. Furthermore, how can I accurately evaluate a 34 degree reading without knowing if my thermometer is good enough to report a result plus-or-minus 1 degree . . . . or plus-or-minus 5 degrees? There is simply not enough information available to make a sound decision. And while my wife’s concern about whether our tomato plants are going to freeze overnight is a big concern in her mind (mine too, honey, mine too) it pales in comparison to concerns over someone is going to lose their driver’s license, and possibly their job, based on a misleadingly reported measurement.

This post has already gotten too long, so we’re gonna wrap it up now and save discussion of the criminal standard in the next post. We’ll then move on to touch on some of the legal objections the State has raised to this very simple challenge in yet another post (all their objections are legal, they can’t fight the science behind it). So stay tuned; Part 4 of our blog is going to be in three subparts, and the next one is right here.