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

Is your DWI lawyer a member of the Minnesota Source Code Coalition?  If you took an Intoxilyzer 5000 breath test and lost your license and/or you are being charged with a DWI, your attorney may not be doing all he or she can to win.  Urge them to become a member immediately to defend you against the state's unscientific breath test machine.

 If you are an attorney and not a member, you may join the coalition.  All the documents are available on the Minnesota Society for Criminal Justice website.

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On November 24^th, 2009 the Minnesota Attorney General’s Office filed a Memorandum in Support of Motion of Minnesota Commissioner of Public Safety for Asignment of Implied Consent Cases to a Single Judge or Panel of Judges in the Supreme Court of the State of Minnesota.  The Attorney General alleges that such assignment is appropriate because the cases involve common questions of fact and have a special need for coordinated judicial management.  The Minnesota Source Code Coalition support consolidation.

Most recently I have reported that Chisago and Anoka County has consolidated their source code cases.  In addition to Anoka and Chisago Counties, Hennepin County and the entire First Judicial District has consolidated its source code cases.

In each of the implied consent cases, the petitioner has challenged the reliability of his or her Intoxilyzer 5000EN test result based on their belief that reviewing the source code for the Intoxilyzer 5000EN will reveal a material defect affecting the instrument’s ability to produce accurate alcohol concentration results.  I have addressed the flaws of the Intoxilyzer in past blog entries.

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Our constitution protects us against unreasonable police seizures.  As a result, in a DWI case, the police officer’s reason for the stop must be constitutional.  Otherwise, everything the officer learns as a result of the stop must be thrown out and cannot be used against my client.

Earlier this year my client was stopped by police officer and arrested for DWI.  My client (“Mark”) was driving on a divided highway, with two lanes of traffic in each direction. He came to an intersection which was also a divided highway with two lanes of traffic in each direction.

A deputy sheriff saw Mark turn left from the leftmost turn lane into the right driving lane of the intersecting roadway.  Upon seeing this, the deputy turned on his emergency lights and stopped Mark’s vehicle for what he believed to be an illegal turn.  The officer eventually arrested Mark for DWI.

What if the officer was mistaken about the law?  Is the stop still legal?  If not, what happens?

Both the Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution guarantee the "right of the people to be secure in their persons, houses, papers, and effects" against "unreasonable searches and seizures." Any evidence obtained subsequent to the illegal seizure must be suppressed.

To justify a warrantless investigative seizure, a police officer must be able to articulate some objective basis that the individual seized has been, is presently, or is about to be, engaged in criminal activity. This reasonable, articulable suspicion must be present at the moment a person is seized, and cannot be determined after the fact. Simple good faith on part of officer is not enough. Thus, an officer who makes a traffic stop must have a “particularized and objective basis for suspecting the particular persons stopped of criminal activity.”  While a stop may be based on the suspect’s violation of traffic laws, there must be proof that the stop was not the product of mere whim, caprice, or idle curiosity.

When looking at an officer’s basis for stopping a motorist, the focus of the court is on whether there is any, “objective basis for the belief that the defendant was engaged in criminal activity.” This means that, “an officer’s mistaken interpretation of a statute may not form the particularized and objective basis for suspecting criminal activity necessary to justify a traffic stop.

In this case Mark violated no traffic laws, whatsoever. There was no evidence that he was violating any speeding laws, nor traveling dangerously slow. All equipment on his vehicle was perfectly functioning. He did not begin driving evasively the moment he saw the police, rapidly pull of the road, or perform a sudden U-Turn.

Instead, the deputy believed that Mark violated a traffic law by turning left from one lane into another. The only applicable Minnesota statute to this type of conduct would appear to be Minn. Stat. §169.19, subd. 1(b), which provides:

“Approach for a left turn on other than one-way roadways shall be made in that portion of the right half of the roadway nearest the centerline thereof, and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the centerline of the roadway being entered. Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.” (Emphasis added).

Mark’s driving could not have been violated the statute, as the statute merely advises drivers to perform left turns in such a manner – it is not a requirement. This conclusion comes from a plain and honest reading of the statute, and numerous district court judges have agreed, holding that a left turn that does not comply with the advisory language of the law and therefore cannot be the basis for a lawful traffic stop.

Regardless of the deputy’s honest belief that Mark’s left turn was illegal, the truth is that it was not.  The judge will rule the stop unconstitutional and as a result, throw out the entire case. 

Police officers give many reasons to stop a vehicle.  Not all of them are constitutional and should be challenged.  If successful, the driver should prevail in any DWI case. Some of the unconstitutional reasons may be:

1.  Certain turn signal violations;

2.  Anonymous tipsters or callers;

3.  equipment violations;

4.  suspicious vehicles;

5.  license plate type;

6.  weaving within a lane;

7.  headlights;

8.  time of day;

9.  closed businesses; 

10.  Welfare checks and many, many others.

If you have been arrested for DWI, we can help.  Call us immediately for a free consultation.

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The Chisago County Court Administrator’s office notified my office today that it was consolidating the county’s source code cases into one hearing.  The hearing is scheduled to be heard on May 5, 2010.

Coincidentally, Anoka County has scheduled its consolidated source code hearing for the same date.  Chisago County seemed unaware of this.  I do not know whether Chisago will reschedule the hearing.  Since Chisago County is in the Tenth Judicial District with Anoka County (along with the counties of Isanti, Kanabec, Pine, Sherburne, Washington, and Wright), perhaps the district will consolidate the entire district’s hearings.  In my opinion, this would save judicial resources and be more efficient for the courts and litigants.

Chisago County includes the cities of Center City, Chisago City, Harris, Lindstrom, North Branch, Rush City, Shafer, Stacy, Taylors Falls, and Wyoming; the townships of Amador Township, Chisago Lake Township, Fish Lake Township, Franconia Township, Lent Township, Nessel Township, Rushseba Township, Shafer Township, Sunrise Township and Wyoming Township.

In addition to Anoka and Chisago Counties, Hennepin County and the entire First Judicial District has consolidated its source code cases. 

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On July 1, 2009, Minnesota implemented a statewide pilot Ignition Interlock program.  This program allows drivers who have had their licenses revoked, cancelled, suspended or withdrawn due to multiple DWI convictions or revocations get their licenses back earlier, if they agree to install an ignition interlock device on their car.

This is the first sensible move by Minnesota in the DWI arena in decades.  Until now the Department of Public Safety had a policy that made no sense.  It preferred people to drive without a valid license – knowing people must drive on many occasions – than fashioning a workable solution to Minnesota’s drunk driving problem.  This allows citizens to drive to work, school and other places legally while at the same time ensuring our roads are same for our loved ones. Bravo DPS!

According to a Duluth news outlet 400 DWI offenders have already participated in Minnesota’s Ignition Interlock Program.  Some benefits to this program include driving sooner, being able to drive to work, school, or wherever you need, avoiding future DWIs, driving legally and quite possibly saving money by being able to drive your own vehicle in lieu of cabs, bus fare, or saving the hassles of having to ask others to drive somewhere for you.  There are potential disadvantages, whether it is worth it for you to enroll will depend on your needs, preferences and level of offense.  You will also have to have to bring your vehicle for monthly maintenance appointments so that engine start information can be downloaded into a report format.

The ignition interlock is a small device that is installed into the vehicle and is used to measure an individual’s alcohol concentration.  If the driver has been drinking and blows into the tube and registers a high alcohol concentration level the vehicle will not start.  The device will also trigger random retests as the vehicle is driven to ensure that alcohol has not been consumed while operating the vehicle.

It remains to be seen what if any flaws exist in the program which may cause a device to erroneously stop one’s automobile.

Eligibility

Are you eligible?  I’ve created a chart to determine your eligibility in Minnesota’s Ignition Interlock Program.

Cost

The cost of the ignition interlock varies by vendor.  The Minnesota Department of Public Safety gives the following estimates:

Installation fee: $35.00 -$100.00
Monthly maintenance fee: $60.00 - $125.00
Lockout fee: $35.00 - 50.00
Removal fee: $25.00 - 50.00
Switch Vehicle Fee – $55.00

Relevant Minnesota Statutes

For your convenience, I’ve posted Minnesota Statute sections 171.305 and 171.306 in their entirety below:

171.305 IGNITION INTERLOCK DEVICE.

Subdivision 1.Definition.

"Ignition interlock device" or "device" means breath alcohol ignition equipment designed to prevent a motor vehicle's ignition from being started by a person whose alcohol concentration exceeds the calibrated setting on the device.

Subd. 2.

[ Expired]

Subd. 3.Performance standards.

The commissioner shall specify performance standards for ignition interlock devices, including standards relating to accuracy, safe operation of the vehicle, and degree of difficulty rendering the device inoperative. The interlock ignition device must be designed to operate from a 12-volt DC vehicle battery and be capable of locking a motor vehicle's ignition when a minimum alcohol concentration of 0.020 grams of ethyl alcohol per 210 liters of breath is introduced into the device. The device must also require a breath sample to determine alcohol concentration at variable time intervals ranging from five to 30 minutes while the engine is running. The device must also be capable of recording information for later review that includes the date and time of any use of the vehicle or any attempt to use the vehicle, including all times that the vehicle engine was started or stopped and the alcohol concentration of each breath sample provided.

Subd. 4.Certification.

The commissioner shall certify ignition interlock devices that meet the performance standards and may charge the manufacturer of the ignition interlock device a certification fee. A manufacturer who submits a device for certification must provide an application for certification on a form prescribed by the department.

Subd. 5.Issuance of limited license.

The commissioner may issue a limited license to a person whose driver's license has been canceled and denied due to an alcohol or controlled substance-related incident under section 171.04, subdivision 1, clause (10), under the following conditions:

(1) at least one-half of the person's required abstinence period has expired;

(2) the person has successfully completed chemical dependency treatment and is currently participating in a generally recognized support group based on ongoing abstinence; and

(3) the person agrees to drive only a motor vehicle equipped with a functioning and certified ignition interlock device.

Subd. 6.Monitoring.

The ignition interlock device must be monitored for proper use and accuracy by an entity approved by the commissioner.

Subd. 7.Payment.

The commissioner shall require that the person issued a limited license under subdivision 5 pay all costs associated with use of the device.

Subd. 8.Proof of installation.

A person approved for a limited license must provide proof of installation prior to issuance of the limited license.

Subd. 9.Misdemeanor.

(a) A person who knowingly lends, rents, or leases a motor vehicle that is not equipped with a functioning ignition interlock device to a person with a limited license issued under subdivision 5 is guilty of a misdemeanor.

(b) A person who tampers with, circumvents, or bypasses the ignition interlock device, or assists another to tamper with, circumvent, or bypass the device, is guilty of a misdemeanor.

(c) The penalties of this subdivision do not apply if the action was taken for emergency purposes or for mechanical repair, and the person limited to the use of an ignition interlock device does not operate the motor vehicle while the device is disengaged.

Subd. 10.Cancellation of limited license.

The commissioner shall cancel a limited license issued under this section if the device registers a positive reading for use of alcohol or the person violates any conditions of the limited license.

Subd. 11.Program standards.

The program standards applicable to section 171.306 also apply to this section.

History:

1991 c 270 s 6; 1992 c 570 art 1 s 24; 1993 c 347 s 19; 1997 c 12 art 3 s 10; 1999 c 238 art 2 s 91; 2000 c 478 art 2 s 1; 2007 c 54 art 3 s 4

****

171.306 IGNITION INTERLOCK DEVICE PILOT PROJECT.

Subd. 1.Pilot project established; reports.

The commissioner shall conduct a statewide two-year ignition interlock device pilot project as provided in this section. The pilot project must begin on July 1, 2009, and continue until June 30, 2011. The commissioner shall submit a preliminary report by September 30, 2010, and a final report by September 30, 2011, to the chairs and ranking minority members of the senate and house of representatives committees having jurisdiction over criminal justice policy and funding. The reports must evaluate the successes and failures of the pilot project, provide information on participation rates, and make recommendations on continuing the project.

Subd. 2.Performance standards; certification.

The commissioner shall determine appropriate performance standards and a certification process for ignition interlock devices for the pilot project. Only devices certified by the commissioner as meeting the performance standards may be used in the pilot project.

Subd. 3.Pilot project components.

(a) Under the pilot project, the commissioner shall issue a driver's license to an individual whose driver's license has been revoked under chapter 169A for an impaired driving incident if the person qualifies under this section and agrees to all of the conditions of the project.

(b) The commissioner must denote the person's driver's license record to indicate the person's participation in the program. The license must authorize the person to drive only vehicles having functioning ignition interlock devices conforming with the requirements of subdivision 2.

(c) Notwithstanding any statute or rule to the contrary, the commissioner has authority to and shall determine the appropriate period for which a person participating in the ignition interlock pilot program shall be subject to this program, and when the person is eligible to be issued:

(1) a limited driver's license subject to the ignition interlock restriction;

(2) full driving privileges subject to the ignition interlock restriction; and

(3) a driver's license without an ignition interlock restriction.

(d) A person participating in this pilot project shall agree to participate in any treatment recommended by a chemical use assessment.

(e) The commissioner shall determine guidelines for participation in the project. A person participating in the project shall sign a written agreement accepting these guidelines and agreeing to comply with them.

(f) It is a misdemeanor for a person who is licensed under this section for driving a vehicle equipped with an ignition interlock device to drive, operate, or be in physical control of a motor vehicle other than a vehicle properly equipped with an ignition interlock device.

History:

2007 c 54 art 3 s 5; 2009 c 29 s 2,3

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I have been following a breaking news story out of Pennsylvania.  Hospitals announced they have discontinued blood testing for DWI alcohol testing. This is long overdue and comes about due to the Herculean efforts of one Pennsylvania Lawyer Justin McShane, of The McShane Firm, LLC.

Until now, Pennsylvania hospitals would analyze blood samples for DWI alcohol testing at the request of police utilizing “enzymatic testing,” a method widely considered by forensic scientists to be invalid, unreliable and inaccurate. Despite this, the state took citizens’ driver’s licenses and put them in jail based solely on enzymatic testing of blood samples. 

The story behind the change in hospital policy is interesting.  Mr. McShane had regularly obtained court orders which placed the hospital labs under great scrutiny and drained significant resources.  The scrutiny jeopardized the hospitals' lab accreditation with scientific organizations when McShane exposed the unscientific methods.  The loss of accreditation would have been extremely costly to the hospitals. In the end, rather than risk the loss of their accreditation under further intense scrutiny and exposure, the hospitals and clinics have informed police they will not longer analyze the blood samples.

Police will now likely send blood samples to the state crime lab to be analyzed using the Gas Chromatography – the gold standard of blood testing if administered and evaluated properly. It remains to be seen what effect this implicit admission will have on pending cases.

Minnesota does not recognize the enzymatic method for DWI blood testing. It uses the Gas Chromatography to measure the amount of alcohol in drivers’ blood. Coincidentally, Justin and I spent this week in Chicago at a hands-on science course entitled, Gas Chromatography: Fundamentals, Troubleshooting, and Method Development.  The other attorneys attending the course were Andrew Alpert, Tyler Flood, Roderick Frechette, Stephen Hamilton, Josh Lee, Donald Ramsell and Michael Solak. 

If you have been accused of having a blood alcohol concentration over the legal limit, call Chuck Ramsay immediately for the best possible DWI legal representation in Minnesota. 

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As was previously reported in a previous blog on 10.19.09 - Updated - Source Code Review Process - See who is involved - many 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.  

If your attorney is not on the list, he or she is not keeping up with even the minimal requirements of a dwi lawyer.

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Recently, a headline from various Minnesota publications - Drunken Mother Led Chase, Her Two Kids in Tow – captured my attention. A Woman had her two sons, ages 2 and 4, in a car and an open bottle of rum in a diaper bag when she led police on a chase last week in western Hennepin County, police said Wednesday. 

This is, indeed, a tragic situation. In 2008, 7 percent of children age 14 and younger killed in car crashes were passengers in a car with a drunken driver, according to the National Highway Traffic Safety Administration. Hennepin County alone usually sees three to four cases a year involving a parent who has been drinking and is driving with child/children in the car. 

Please note, that merely being charged with child endangerment has consequences that are much more severe than a drunk driving conviction, which are potential loss of license, potential jail, fines, probation, etc. If child endangerment charges are filed, it’s possible for child protection to become involved and, in extreme cases, the state can take away a parents’ children. 

If you are facing similar charges,

CONTACT RAMSAY LAW FIRM AT 651.604.0000 IMMEDIATELY

TO PROTECT YOUR PARENTAL RIGHTS

If you are facing these types of charges, Ramsay Law Firm has and continues to represent many cases like this; we realize our clients underlying chemical dependency issues that helped to cause a situation like this and our goal is to help beat the charges or minimize the consequences.

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As reported in the Pioneer Press yesterday, November 4^th, 2009, Minnesota’s First Judicial District held a hearing, conducted by the Honorable Judge Abrams, to set an agenda to discuss factors in the on-going Source Code dispute.  This hearing was to address how to proceed in the Source Code Evidentiary hearings for Implied Consent and Criminal matters.  I first reported of this hearing on my blog – Mass Source Code Scheduling Conference for Implied Consent and Criminal matters set by the First Judicial District Court of Minnesota.

At the heart of the matter is the reliability of the Intoxilyzer 5000 and whether or not this machine accurately measures a person’s alcohol concentration under Minnesota's DWI laws.  This is the machine used state wide.  I have addressed the flaws of the Intoxilyzer 5000 in past blog entries.

At yesterday’s mass hearing, coalition attorneys told Judge Abrams that they had hired Computer Forensics Services to review the source code as allowed under the federal court settlement.  This would take approximately 2-3 months and will be done at CMI headquarters in Kentucky.

Judge Abrams decided he would schedule one mass hearing for next spring, to determine whether the breath test machine is reliable after the findings of the source code review.   The hearing which includes 286 civil cases and 238 criminal cases (and growing) throughout the First Judicial District is expected to last anywhere from one to three weeks.

Other District Courts may join the First Judicial Districts in this hearing or conduct mass hearings of their own on the reliability and accuracy of the Intoxilyzer 5000.

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Chuck Ramsay, Jeff Sheridan and Marsh Halberg have been named as lead counsel for the Minnesota Source Code Coalition. The three Minnesota attorneys have established themselves as leaders on the Minnesota DWI breath test issue.  Ramsay obtained the source code in a federal lawsuit when he thwarted a Minnesota/CMI settlement which would have buried the software. Instead, he forced the state and CMI into providing unfettered access to the source code at the manufacturer's headquarters.  Ramsay uncovered the secret "smoking gun" and "inferno" internal emails.  Sheridan prevailed at the Minnesota Supreme Court in the Underdahl case opening the door to the source code issue.  Halberg has been instrumental in organizing the defense bar and leading the coalition and also submitted valuable memoranda on behalf of the MSCJ in the federal case. 

Lead counsel is appointed when multiple parties share sufficient common interests so that one attorney may represent them as a group, without conflict, on substantive matters. Typically, when a number of attorneys are appointed as co-lead counsel, each is charged with a particular specialty. Commonly, lead counsel will be appointed to head the trial team, for expert discovery, for factual discovery and for briefing.

The lead counsel is expected to speak at the first scheduled hearing on November 4, 2009 to review the status of numerous Source Code cases pending within the First District.  I first discussed this mass hearing in a previous blog entitled Mass Source Code Scheduling Conference for Implied Consent and Criminal Matters set by the First Judicial District Court of Minnesota.

A letter from the MSCJ Source Code Coalition regarding the Source Code Status Conference has been sent to Judge Abrams which details the steps MSCJ has undertaken in order to handle the analysis of the Source Code at CMI headquarters in Kentucky. In addition to announcing lead counsel, the Minnesota Society for Criminal Justice (MSCJ) has also retained Computer Forensic Services, Inc. (CFS) of Minnetonka to evaluate the Intoxilyzer 5000EN in use by the State of Minnesota.  This letter also gives an outline as to how MSCJ will analyze the Source Code in compliance with Judge Frank’s Order.

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