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

Earlier this month, fellow criminal defense lawyer, Ms. Christine Funk interviewed Mr. Charles Ramsay for a segment of her online show, The Crime, Science and Information Show, that provides answers to various questions regarding workings of the law, the judicial system and the principles of forensic science.

Mr. Ramsay met with Christine Funk in order to discuss intoxication laws – including what those laws are, evidence and scientific issues concerning those laws and legal challenges that may occur now that evidence and scientific angles are being challenged.

If you have been regularly reading Mr. Ramsay’s blog, mndwidefenseblog.com, you are aware that Mr. Ramsay, along with other criminal defense lawyers throughout Minnesota, has been challenging the source code for the Intoxilyzer.  Mr. Ramsay continues to bring to light this issue and uses Ms. Funk’s interview platform to bring it to a larger audience.

During the interview, Mr. Ramsay explains the difference between driving while intoxicated (DWI) and driving under the influence (DUI), various tolerance levels for individuals and the government's means for determining an individual's alcohol concentration (urine testing, blood testing, breath testing).  He also provides more information on breath test machines and the source code issues breathalyzers face.

Like Charles, Christine believes in knowing the law, the facts surrounding each case and the science behind each case.

Ms. Christine Funk has been with the Public Defenders Office for the State of Minnesota, serving as a member of the Trial Team Office.  Christine has made great strides in challenging DNA evidence in cases throughout her career and has strived to make scientific evidence understandable to other lawyers, along with average, ordinary citizens.  She hosts the online show, The Crime, Science and Information Show on The Women’s Information Network website.

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On October 21, 2009 an order issued by the Honorable Jerome Abrams was filed by the First Judicial District which sets an agenda for a scheduling conference on November 4, 2009 to discuss factors in the on-going Source Code dispute.  Judge Abrams has been assigned to this matter by Order of the Chief and Judge of the First Judicial District pursuant to minn.stat. §484.69, subd.3.  Minnesota’s First Judicial District is comprised of the following counties:  Carver, Dakota, Goodhue, LeSueur, McLeod, Scott and Sibley.

This hearing will address how the First Judicial District Court of Minnesota will proceed in the Source Code Evidentiary Hearings in Implied Consent and Criminal matters.  Key topics in source code evidence such as source code disclosures, timing of disclosures, identifying all experts for the defendant, petitioner and State, and expert opinion disclosures/reports along with additional fact disclosure will be determined.  To read the complete agenda please see the Order Setting Agenda for Hearing dated 10.21.09.

This mass Source Code Scheduling Conference will more than likely take an entire day and will consolidate 286 civil cases and 238 criminal cases.  While the idea of doing a ‘mass’ hearing seems logical at first – saving judicial resources, time and expenses – one has to ask – what expense does each individual face?

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Dr. Alfred Staubus, a nationally renowned forensic scientist from Ohio reports the new issue of the Journal of Analytical Toxicology (Volume 33, No. 8, October 2009) has an interesting article about the Intoxilyzer 8000. The 8000 is a DWI breath test machine (some say breathalyzer) and successor to the Intoxilyzer 5000, Minnesota’s breath test machine. 

Dr. Staubus says the forensic science treatise published the results of a scientific study that demonstrates the Intoxilyzer 8000 has a poor ability to detect mouth alcohol. 

To be scientifically valid and reliable, DWI breath tests must detect mouth alcohol in test subjects.  Otherwise, the test result will read erroneously high.  See Professor Harley Myler’s Affidavit for more information.

In the study, a total of 23 breath-alcohol profiles were collected from subjects blowing into the machine every 5 minutes for 2 hours immediately following drinking.  The INVALID SAMPLE indicator of mouth alcohol was only actuated in 5 of the 23 cases.  And in those 5 cases the INVALID SAMPLE indicator only appeared during the first sample.
 
Table II shows the Intoxilyzer 8000 failed to actuate the INVALID SAMPLE response to mouth alcohol even when test result was elevated by as much as 0.127 g/210 L over the subsequent breath test result.

Authors (James Watterson and Kayla Ellefsen from the Forensic Toxicology Research Laboratory in Canada) also collected blood samples from these subjects.

Within a limited breath volume range of 2 to 3 liters, the author found the precision of the test results to be insensitive to breath sample volume.  Considering that the minimum acceptable volume for the Intoxilyzer 8000 is 1.1 liters and many subjects, when told by officers to "keep blowing, keep blowing, ...”, can blow in excess of 4 or 5 liters, the small range of 2 to 3 liters and the limited number of samples was apparently designed not to detect differences due to breath volume that others have already demonstrated.

Authors concluded that (1) the Intoxilyzer 8000 generally underestimates the venous BAC and (2) "it is clear a mandatory delay before breath testing commences should be enforced to minimize the likelihood of falsely elevated BAC measurements." According to Staubus, however, they avoided concluding anything in regard to possible mouth alcohol contamination from Gastric Esophageal Reflux Disease (GERD).

Readers may purchase the article on-line or the entire October edition.

Dr. Staubus is a national consultant who consults with the Ramsay Law Firm on forensic science issues.

In my opinion, CMI, the Intoxilyzer manufacturer, could not get it right in the Intoxilyzer 5000 and they still cannot get it right in the 8000.  This machine does not produce accurate, reliable or valid results.

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Anoka County became the latest county in the state of Minnesota to consolidate its breath test cases involving the battle over its source code.  The hearing for civil cases is set for May 5, 2010.  Criminal cases will be heard May 26, 2010. 

Anoka County is in the Tenth Judicial District, which is comprised of Anoka, Chisago, Isanti, Kanabec, Pine, Sherburne, Washington, and Wright Counties.

The larger cities in Anoka include:

• Andover
• Anoka
• Bethel
• Blaine
• Centerville
• Circle Pines
• Columbia Heights
• Columbus
• Coon Rapids
• East Bethel
• Fridley
• Ham Lake
• Hilltop
• Lexington
• Lino Lakes
• Nowthen
• Oak Grove
• Ramsey
• St. Francis
• Spring Lake Park

The other counties that have consolidated cases are Hennepin County, and the entire First Judicial District (comprised of Carver, Dakota, Goodhue, LeSueur, McLeod, Scott and Sibley counties). 

Chief Judge of Ramsey County, Judge Gearing, sent a letter last month to Chief Justice Eric Magnuson requesting that the state consolidate all the Intoxilyzer cases within the state.  Chief Justice Magnuson’s decision, if any, has been made public as of this writing.

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Since at least as early as 1952, Minnesota's courts have held scientific techniques to a high standard before they could be admitted in a court case.  Scientific evidence can be admitted only after passing what is called the “Frye-Mack” test.

The Frye-Mack test is simple on its face: the proponent of scientific evidence must first demonstrate the scientific community generally accepts the science before it can be admitted. The rationale behind such an analysis is to both insure that judges do not play the role of amateur scientist when evaluating scientific evidence, and to provide uniformity of rulings across the state.

Earlier this year a Minnesota judge found in one of my cases that Urine testing in Minnesota does not pass the Frye-Mack test and did not permit the test results into evidence.  This is the only known Urine Frye-Mack hearing in Minnesota … ever!

See the court order preventing urine test result in a driver’s license case at RamsayResults.com.

Previously, a judge agreed with us and threw out our client’s urine test results for similar reasons, although not based specifically on the Frye-Mack test.  See the Dakota County judge’s DWI urine test order.

Last month, one our firm’s attorneys, Dan Koewler, convinced another judge to grant a Frye-Mack hearing.  The state opposed our motion.  The judge’s urine test order can be found here.  That hearing to determine whether Minnesota’s DWI urine tests are generally accepted in the scientific community will be held soon. 

            Earlier this month, the Minnesota Court of Appeals agreed with a lower court which prevented another attorney from presenting evidence that the urine test is scientifically invalid.  The Pioneer Press reported on this, here.  This case does not apply to the Frye-Mack test as the attorneys did not bring that issue before either court.  You may read or download the Minnesota Court of Appeals opinion, Hayes v. Commissioner of Public Safety.

            Minnesota prosecutors have used the “we’ve always done it that way” argument.  Sure, Minnesota has used urine test in drunken driving cases for decades.  But the state has never presented any evidence that the urine tests in Minnesota are generally accepted in the scientific community.  To the contrary, in a previous blog I’ve listed the peer reviewed scientific articles proving, urine tests are rejected by scientists as being invalid, unreliable and inaccurate.

            There is hope.  Stay tuned for my next blog posting where I discuss my oral argument before the court of appeals on this issue. 

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As was previously reported in a previous blog (Source Code Review Process - See who's getting involved!) - As of October 16^th, 98 Private Attorneys have each donated $1,000 to MSCJ’s source code review process.  All of this is in addition to the tens of thousands the MSCJ membership has already expended leading the defense bar on this issue and the tens of thousands more it intends to commit as well.  

Below is an updated listing of the coalition members. If your attorney is not on this list, he or she probably is not acting in your best interests. Urge them to contact the MSCJ today to become part of the coalition to review the source code.

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New Jersey Attorney, Evan Levow, reported that today a judge threw out the 0.14 breath test result in New Jersey v. Chun.  Chun was the name of the lead defendant in New Jersey’s state-wide battle over its new breath test machine.  Mr. Levow has represented Ms. Chun throughout the process. 

Although the first four and 1/2 years of pre-trial litigation focused on whether the Draeger Alcotest was scientifically reliable – which included analysis of the machine’s source code – the judged suppressed the test based on the officer's failure to follow proper procedures for changing the mouth piece.  (Both the manufacturer and the head of the Alcotest program testified in the state wide hearings that the mouthpiece must be changed after each breath sample, which wasn't done.)

Tomorrow they try the impaired charge.  We wish Mr. Levow and Ms. Chun the best of luck.  Certainly no one can question the lengths to which Mr. Levow will go to give his clients the best possible representation.  See Mr. Levow’s website for more information about the case.  See my blog and website for more information about the fight over Minnesota’s breath test machine and source code battle.

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