Victory at the Court of Appeals

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

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

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

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


Brady Violations and "My Cousin Vinny" Revisited

Earlier this week, we used a memorable scene from "My Cousin Vinny" to discuss Brady violations.  As a recap, prosecutors must provide their evidence to the defense, especially when the evidence favors the defendant.  And, like all good subplots, the issue must reoccur during the climax of the movie.  What is interesting is that the recurring subplot in "My Cousin Vinny," is very similar to the response we received from our last post.  Let's discuss:

We left off when Vinny obtained the prosecutor's file.  With all the information, Vinny was able to cut against state's evidence and the witnesses' credibility.  One witness had significant eye issues, another had an obstructed view of the incident, and another provided an incorrect timeline. ("Are you sure about that 5 minutes?")  

Just before the state rested its case, Vinny received a late night phone call from the prosecutor--or as Minnesota hockey fans know him, Coach Reilly from "The Mighty Ducks."  The prosecutor informed Vinny that he has just obtained some new evidence that he will present at trial tomorrow.  When Vinny contests that he has not been given notice or an opportunity to view the evidence, the prosecutor tells Vinny "I just got the evidence myself," and the judge will have to let it in.  This is where a parallel can be made with the response we received after our most recent post. And, for the record, the prosecutor was right; the judge let the evidence in over Vinny's "lucid, intelligent, well-thought-out objection."

Since Monday, Prosecutors have reached out to us and informed us that, while they do not disclose the measurement uncertainty in DWI cases, they have never been given that information from the BCA, so they couldn't disclose it even if they wanted to.  However, this does not absolve prosecutors' obligation to provide and discover this information. 

In Kyles v. Whitley, the United States Supreme Court looked at a potential Brady violation and stated that prosecutors' obligation extends to any information known to "others acting on the government's behalf in the case." This obviously includes police and any person or entity that aids the state in obtaining evidence.

In DWI cases, the Minnesota BCA is absolutely working on the government's behalf.  They provide and maintain the DMT testing machines, certify the correct operation of the DMTs, train officers on how to operate the DMTs, and defend the test results in court.  Simply put, without the Minnesota BCA, the state would not be able to convict anyone for driving with an alcohol concentration of .08 or more.

Because the BCA works hand-in-hand with the state on DWI cases, any defense-favorable evidence they possess must be given to the defendants.  If they do not provide the information to the prosecutor, it is the prosecutor's obligation to seek it out.  This includes measurement uncertainty which shows a .08, or even .09, test result does not mean the driver's alcohol concentration was actually .08 or more.


"He's Not Allowed Any Surprises."

Most have seen the 1992 comedy "My Cousin Vinny," starring Joe Pesci and Marisa Tomei.  It follows a New York attorney (Pesci) in his attempt to defend his wrongfully accused cousin in a Alabama court. Many remember this movie for the funny courtroom scenes and Tomei's great performance; but, what many do not know is that this film discusses some correct points of law, which brings me to the subject of this post: Brady violations.

In the movie, Pesci's character, Vinny, is anxious about the upcoming trial so he decides to go hunting with the prosecutor to see if he can use his charm to get some inside information on what evidence the state has.  Vinny boastfully returns from the hunting trip with a complete copy of the prosecutor's file.  Just when Vinny is feeling pretty good about himself, his fiancé, Mona Lisa Vito (Tomei), who spent the day reading about the law, sets him straight with this memorable line:

"He has to, by law, you're entitled. It's called disclosure, you d#@$head! He has to show you everything, otherwise it could be a mistrial. He has to give you a list of all his witnesses, you can talk to all his witnesses, he's not allowed any surprises. They didn't teach you that in law school either?"

Ms. Vito is correct.  Under the Minnesota Rules of Criminal Procedure the state must show the defense its evidence and notice of witnesses.  Furthermore, under Brady v. Maryland (Brady for short) prosecutors must disclose material evidence which shows, or could show, the defendant might be innocent.  Violations of this rule have been coined "Brady violations." and the remedies can be quite significant.  Just last week, a potential Brady violation led to multiple convictions of serious felonies being remanded back to the district court for further litigation.  You can view that opinion here.

The problem is Minnesota prosecutors are violating this well-understood rule of law in most DWI cases. We previously told you that the Minnesota BCA has started to reveal its measurement uncertainty and how this shows a .08 test result does not mean the true alcohol concentration is over .08. Unfortunately, the measurement uncertainty is not on the test results themselves and are not included in the files traditionally sent to defense attorneys as part of disclosure.

What's the big deal?  Well, the measurement uncertainty shows that a defendant charged with driving with a BAC of .08 or more, may actually be innocent based on the inaccurate test result.  This is material information the defense must be informed of.  Keep in mind that most people do not follow legal developments and take the test results on face value.  "If it says I am .08, I must be .08"  This incorrect thought process leads thousands to plead guilty to a crime they are not actually guilty of.  Withholding the measurement uncertainty cleanly fits the description of a Brady violation and it happens in most DWI cases.

Balancing Beam Fail: Judge Finds Minnesota Breath Tests Unreliable and Inadmissible Under Rules of Evidence, But Admissible Nonetheless

Ramsay Law Firm scored a major victory recently when a Ramsey County Judge ruled that Minnesota breath tests lack scientific methods that ensure reliability. This major finding led the Judge to rule that the breath test results are inadmissible in a criminal trial under the Minnesota Rules of Evidence.  

While such a ruling would make one believe that the test results simply cannot be admitted into evidence, that was not the case here as the Judge pivoted and did her best balancing beam impersonation.  She attempted (unsuccessfully in our eyes) to balance the requirements of all scientific evidence in the courtroom and the legislature's unyielding desire to admit the test results, no matter what.  The holding boils down to this: in the Judge's eyes, regardless of how unreliable the test results are, or what the Minnesota Rules of Evidence demand, Minnesota Statute 634.16 makes the test results admissible, period.  Carefully crafted Rules of Evidence be damned!  

We obviously agree with part of the Judge's ruling and will now shift our focus to advocating for the correct application of the Rules of Evidence.  Check back often for more updates.

Fox 9's Ted Haller recently ran a report on this ruling, which you can view here.

Final Briefs Submitted in Trahan and Thompson

We recently witnessed significant upheaval in the area of DWI law (again). If you missed it, the United States Supreme Court found portions of Minnesota's DWI Test Refusal law unconstitutional. Specifically, it is no longer a crime for a driver to refuse to submit to a blood test after being arrested for DWI (now, if the police have a warrant, that's another matter . . .)

But blood tests are not the only tests given in Minnesota -- we are one of the very few states that still use urine alcohol testing. While the U.S. Supreme Court did not directly address whether or not it is constitutional to refuse to submit to a urine test (note: they did reverse one of our client's convictions that was based on a urine test) the issue is about to be decided by the Minnesota Supreme Court

We held oral arguments on Thompson (which will decide if drivers can legally say "no" to warrantless urine tests) in the beginning of June, and if you're really that interested you can watch the oral arguments here

But the reason for all that background is this: after the Bernard decision came out, the Supreme Court ordered "supplemental" briefing in Thompson  -- basically, an opportunity for all the attorneys to adjust their arguments to take into account these recent legal developments.

Wanna read those supplemental briefs? If so . . . here you go. Note that these are just for the Thompson (urine refusal) case . . . we'll get you the Trahan (blood refusal) supplemental briefs shortly. Enjoy!

The State's Brief

Our Brief

The ACLU Amicus Brief

Minnesota Attorney General's Amicus Brief



Just How Accurate Is Minnesota's DWI Breath Test Machine?

(Author's Note: The following long post is geared primarily towards defense attorneys trying to keep up with the latest developments involving Minnesota’s breath testing setup. If you’re not a defense attorney, you may want to skip this post; we’ll be providing further information later in the week that is geared towards lay persons. Of course, nothing is stopping you from continuing on – this is fascinating information!)

For the last several years, the Minnesota Bureau of Criminal Apprehension has been reporting the uncertainty data that applies to all blood- and urine-alcohol tests done in their laboratory. Rather than reporting a raw number (“this sample was 0.09”) the lab would, on the face of the report, include the uncertainty interval with every measurement (“this sample was 0.09 ± 0.004 with a 99.7% confidence interval”). That information provided after the little “±” was absolutely crucial – it tells us how inaccurate the measurement is, how likely it is that the measurement was at or above the legal limit, and effectively how much “trust” we could put into the analysis. By the way, don’t think that the BCA released this data because they wanted to be transparent; they openly admitted that they only did it because it was the bare minimum necessary to keep themselves from losing their accreditation.

For the last several decades, the Minnesota Bureau of Criminal Apprehension has not been reporting the uncertainty data that applies to breath tests. There, all they were willing to report was the raw number (“this sample was 0.09”) and drivers, jurors, and judges were each supposed to just “trust them” and conclude that the number reported was the only number that mattered. Funny enough, because their accreditation did not formally require them to release this particular number, the BCA felt comfortable completely ignoring the scientific need to report their breath uncertainty . . . "close enough for government work" indeed, eh?

Now everyone knows that lab-run blood and urine tests are way more accurate than field-run breath tests. How much more inaccurate? That's always been the $10,000 question. Put plainly, how many people were being convicted based off of shoddy science?

Now we know: we now know that, roughly speaking, you cannot say that a Minnesota driver was above the legal limit of 0.08 if their breath test reported an alcohol concentration any lower than 0.091. If someone tested less than 0.181, you cannot say that they were actually twice the legal limit. That’s because the BCA, after facing incredible pressure from our firm (and all of the attorneys who took the tools we provided them and added to that pressure), has finally released their interpretation of how much uncertainty actually affects a Minnesota breath test.

We’re going to provide you with that data at the end of this post; in any given case, you will be able to obtain it directly from the prosecutor/attorney general’s office with a discovery demand, but this data is so crucial to the interpretation of any breath test result that it should really be included with every test report. But before we get to that point, please read on.

This data is crucial for a variety of reasons, the first being that we’re finally getting to use real science in the courtroom. But more importantly, every year we’ve seen thousands of drivers charged with (and likely convicted) of DWI based on scientifically flawed test results (the relevant data starts on page 5 if you are curious enough to actually click that link). So in answer to the question of "how many wrongful convictions?" we can safely say it reached to thousands of drivers annually -- drivers who were told they were over 0.08, or over 0.16, when the fundamental truth is that they were not. That’s chilling.

And that’s honestly not just a failure by the BCA, or by our courts – that’s a failure of the defense bar. It’s a failure we’re about to correct, but don’t think that correcting it is going to be as easy as bringing the data we’re about to provide you into court, waiving it around, and yelling “not guilty! NOT GUILTY!” It took us a year of intense litigation to finally get these numbers released, and don’t think for a second that this means the fight is over. No, now the fight has just shifted gears.

So get educated. If you don’t know what the term “traceability” is, you’re committing malpractice as a defense attorney. If you don’t know how instrumentation bias effects the adjusted mean before applying the appropriate confidence interval, the data we’ve provided below won’t do you or your client any good at all and you should refer them to a competent attorney who can actually help them.

So bone up on the science. In fact, here’s a primer: the complete table of contents to our blog series detailing how to expose the flaws in Minnesota’s breath testing program. Read it, get familiar with it.

Part I: Why Use Breath Tests At All?

Part II: Scientific Community's Stance On Measurements

Part III: Measurement Traceability & Accuracy

Part IV (a): Breath Tests In Implied Consent (License Revocation) Cases

Part IV (b): Breath Tests in Criminal Cases

Part IV (c): Attempts To Keep Science Out Of The Courtroom

Part V: Court Transcripts

Part VI: Science Prevails! BCA Admits Defeat, Admits To Major Inaccuracies

Still with us? Okay, here’s what you slogged through all that text for: the complete uncertainty data, as provided by the Minnesota BCA.

Use it wisely. With great power comes great responsibility. 

Coming up, we’ll provide a simplified version of these challenges to help explain this astonishing turn of events to people who may be facing DWI charges right now. We’ll also start explaining some of the pitfalls that can trap unsuspecting defense attorneys trying to use this information to help their clients win their cases. Stay tuned. 

DWI Attorney Dan Koewler Selected For Minnesota's 2016 Super Lawyer Rising Star List

Ramsay Law Firm is proud to announce that Dan Koewler was recently selected for the third-straight year to Minnesota's "Rising Star" list maintained by Super Lawyers. Each year, less than 2.5% of the lawyers in the State of Minnesota are selected by the research team at Super Lawyers to receive this honor.

Super Lawyers, a Thomson Reuters Business, is a rating service of outstanding lawyers from more than 70 practice areas who have attained a high degree of peer recognition and professional achievement. The annual selections are made using a patented multi-phase process that includes a statewide survey of lawyers, an independent research evaluation of candidates and peer reviews by practice area. The result is a credible, comprehensive, and diverse listing of exceptional attorneys.
The Super Lawyers lists are published nationwide in Super Lawyers Magazines and in leading city and regional magazines and newspapers across the country. For more information about Super Lawyers, visit

Bureau of Criminal Apprehension Cries Uncle

Truth is often stranger than fiction. Since the beginning of 2016, Ramsay Law Firm has been making a concerted effort to expose the flaws in Minnesota’s DWI breath testing scheme. We’ve brought challenges in courthouses around the state, sometimes bringing in experts from around the country, sometimes just subpoenaing breath test scientists from the Minnesota Bureau of Criminal Apprehension and confronting them directly with the science that refutes their breath test results.

After almost a year of exposing these flaws  - lack of traceable results, misleading methods of reporting bias, failures to admit just how inaccurate breath tests really are – we started a blog series explaining our methods, providing the scientific basis for our challenges, and presenting our evidence to a wider audience. Alongside our blog, we were being asked to present at numerous nationwide seminars, including the annual two-day Criminal Justice Institute and presentations sponsored by the Innocence Project.

On the heels of the last blog post in the series, where we released a series of transcripts detailing our efforts in the courtroom, we received some astounding news: the BCA cried uncle.

Yesterday, in court, for the first time, a BCA scientist revealed that they are now willing to share just how inaccurate Minnesota’s breath tests actually are. The number they cited was basically “0.01,” an uncertainty figure that specifically applies to tests around the 0.08 level (we know there will be even more uncertainty at higher levels).

It took months and months of effort to finally expose this figure, but the hardest part is done. The BCA will now admit that breath tests are more than 3 times as inaccurate as urine or blood tests, and this number calls into question any breath test that is 0.09 or lower. This potentially negates hundreds of pending DWI cases were drivers were close to the legal limit – and will have lasting consequences for drivers who are close to that other limit, 0.16 (where enhanced penalties attach).

Consider this fact, helpfully provided to us by the Department of Public Safety: annually, Minnesota sees approximately 2,000 drivers who provide a breath sample between 0.08 and 0.09 and get charged with a DWI. With this new information, those drivers are very much "not guilty."

Interestingly, we also found out that the BCA obtained this “0.01” number by hiring the very expert we were continually throwing in their faces – Rod Gullberg. The BCA spent months distancing themselves from Gullberg’s publications and questioning his qualifications . . . but in the end, they actually paid him to help them release the numbers that we had been demanding since the beginning.

The fight certainly isn’t over, but this is a huge step. We now, finally, can get the BCA to admit that “0.08” does not actually equal “0.08,” and that uncertainty affects the results of their breath tests substantially more than when a driver is subjected to a urine or a blood test.

Today was a good day – it’s not often that science prevails in a legal battle, especially when government scientists are doing their best to convince judges that the science doesn’t matter.

Today it matters. 

Backdoor Breath Testing 5: Court Transcripts

This post is the fifth part of our mutli-part blog series on the inadequacies of all breath tests in Minnesota. We will now provide illustrative examples, through the use of actual court transcripts, on how litigation on these issues have progressed.  Essentially, we will now prove what we have been claiming all along: the Minnesota BCA knows breath tests conducted in the state are not valid, reliable and accurate, and will freely admit as much on the witness stand.

As a way of background, we have already told you that all measurements are merely estimates of the true value of the measurand (the thing being measured, i.e. alcohol concentration).  Now, here is an excerpt of a transcript form BCA scientist Karen Kierzek admitting that all breaths tests are estimates of the true alcohol concentration.

Because all measurements are estimates, how can we make sure that a test result are valid, reliable, and most importantly, accurate?  The answer is known by all, provide the uncertainty of measurement.  However, the Minnesota BCA has decided not only to forgo providing the measurement uncertainty, they have elected to not even calculate it, even though they freely admit it can be calculated.  In other words, the BCA hasn’t done it because no one has made them follow this basic principle of metrology.

Admissions from the BCA do not stop there, and they only become more egregious.  As a result of not calculating the measurement uncertainty, the breath test results are not traceable.  Although we have already discussed traceability in this series, here is a transcript from Professor Andreas Stoltz from Michigan State University discussing the concept and its importance in the field of metrology.  And here are three separate BCA scientists admitting breath test results in Minnesota are not traceable.  (Johnson, Edin, and Kierzek)

Because the test results are not traceable, and because the measurement uncertainty is completely unknown, the BCA has had no choice to admit that they do not even know the outer bounds (or “cap”) of the measurement uncertainty.  Even worse, they cannot even conclusively say whether the measurement uncertainty could affect the test result as much as + or- .10.  Consider the consequences of such an admission: a 0.17 test result, which is an aggravated result of over twice the legal limit (0.16), affected by a negative .10 uncertainty leaves us with a 0.07 test result,  below the legal threshold of 0.08.

With all of the inadequacies of the breath test results in this state, it is fair to ask: whose responsibility is it to ensure the breath test results are valid, accurate, and reliable?  Well, here is a excerpt of the BCA’s answer to that very question.  Although it will be patently obvious to you when reading, the BCA is unwilling to fully accept responsibility for the test results.   Wonder why ...


U.S. Supreme Court Vacates Urine DWI Conviction

As we reported two weeks ago,  the U.S. Supreme Court has ruled on the constitutionality of warrantless blood an breath test, finding warrantless blood tests as unconstitutional searches, while drawing a line in the sand and finding the exact opposite for warrantless breath tests.   What was not decided in that opinion is the constitutionality of warrantless urine tests and crimes based on refusing such urine tests.  However, today Ramsay Law Firm received an order that sheds light on how SCOTUS views the issue.

The case at hand deals with a warrantless urine test that was obtained after the driver was told refusal to submit to the test was a crime.  Originally, Minnesota appellate courts upheld the admission of the urine test and the criminal conviction, finding no constitutional violations.  However, today's order form the U.S. Supreme Court vacates the conviction and requires the Minnesota Court of Appeals to reevaluate their original holding in light of of Birchfield v. North Dakota, 579 U.S. ___ (2016).

This case will be closely connected to the Thompson case Dan Koewler argued at the Minnesota Supreme Court on June 8th.  Check back for updates as we will continue to post all of the latest developments.