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

We have previously blogged about the unscientific nature of Minnesota’s urine testing regimen.  Despite some adverse court decisions, we continue to find ways to demonstrate our clients’ innocence.  Here is the story of one case where we revealed this month another reason why urine testing should not be used in DWI cases.

My client (“James”) was arrested for DWI and given a urine test.  The result was .16.  James, a former peace officer, was adamant the result was wrong.  During my initial interview, I learned that the container into which James deposited his urine sample was empty before he filled it. 

I explained to James that Minnesota’s DWI urine kits are to include a white powder -- 1 gm of Sodium Fluoride.  The purpose of the chemical is to prevent any sugars present in the urine from being converted to ethanol in-vitro after sampling by fermentation.  Fermentation is likely to occur without the powder, particularly when the sample goes unrefrigerated. 
 
One way to determine whether fermentation occurred is to retest the sample by an independent lab.  Fermentation is likely if the independent test reveals a higher alcohol concentration than the state’s initial test result.  James paid to have the sample retested.  The result:  .18

The urine alcohol concentration had increased by 12 ½ percent! 

We retained the services of a reputable forensic scientist for his opinion.  After reviewing the police and toxicology reports he concluded:

1.         The urine alcohol level is clearly rising in this sample going from a .16 to a .18 on retest.
2.         Fermentation is the cause of this alcohol increase.
3.         Fermentation proceeds at room temperature and this sample spends 4+ days at ambient temperature before it is refrigerated at [the Bureau of Criminal Apprehension (BCA)].  It spends unknown, but likely several days, at room temperature during BCA analysis in which it is goes up in alcohol level.
4.         The client reports no powder in the kit which would significantly accelerate fermentation.
5.         The BCA did not test for glucose or preservative in defendant’s sample.
 
The clear interpretation of the data is a rising alcohol level.  That makes this test and the sample unreliable to show the actual level of defendant’s urine at the time the sample was collected.
 
The Urine alcohol level is not related to intoxication so the sample is of no value to the issue of intoxication.

My client was right! 
 
This demonstrates that urine testing continues to be an unreliable method of determining the alcohol concentration of a person arrested and charged with DWI.  If you have been arrested, call the Ramsay Law Firm immediately.

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As we have blogged before, urine testing is not a scientifically accepted method of determining a driver’s alcohol concentration in a DUI case. Despite this fact, more police agencies are using urine testing to determine drivers' alcohol concentration. 

Our law firm continues to be very successful attacking urine tests. This month prosecutors agreed to reduce numerous urine cases to lesser offenses, eliminating mandatory jail sentences. In a number of instances, the prosecutors voluntarily dismissed the DWI charges entirely.

Judges also recognize the unscientific nature of urine tests. In one case this month, the state charged my client with a Gross Misdemeanor DWI after his urine test revealed an alcohol concentration of .22.    I asked the judge to throw out the urine test result. The state objected. The officer had collected the urine sample two hours and five minutes after the stop. While acknowledging this, the state claimed that it could use “retrograde extrapolation” to prove my client had an alcohol concentration over the limit within two hours. The judge disagreed.

Urine has many limitations, one of which is that it has no burn-off rate – as does breath and blood. At the suppression hearing, the state toxicologist admitted that no reputable scientist could use a urine test result to extrapolate one’s alcohol concentration at an earlier point in time. Without the ability to tie the .22 urine test to any one point in time, the court ruled the alcohol test result irrelevant and suppressed the urine test. 

With no alcohol test, the prosecutor dropped the DWI charges and my client pleaded to a careless driving. Because we had prevailed in the civil implied consent hearing, the careless was not alcohol related. 

We will expose the unscientific nature of urine testing as long as police use urine testing to take away drivers’ licenses and convict them of crimes. We continue to develop new ideas to attack urine and other alcohol tests. Call us immediately if you’ve been charged with a DWI.

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For years, Minnesota law has permitted the State to seize the vehicles of some arrested for DWI, sell them off, and keep the proceeds. This means that many of our clients come to us concerned not only about jail time, or loss of their driver’s license, but also worried about the fact that the State is trying to permanently deprive them of their car, their SUV, their boat, or whatever motor vehicle they were operating when they were arrested.

There are serious concerns to be raised whenever the State gets into the business of seizing a person’s private property for its own gain. When the police department and the prosecutor get to divide up the proceeds from selling off forfeited vehicles used by drunk drivers, the procedure starts to look less like it’s about public safety and more like its all about generating revenue. However, what makes DWI forfeitures so bad – so bad that they are unconstitutional – is the fact that the police get to seize the vehicle immediately . . . and then completely prevent the driver from contesting the seizure in front of a judge. See Policing for Profit for more on forfeiture abuse.

 The current forfeiture law does not permit a driver to contest the seizure of his vehicle until after his criminal case has been resolved. This can take years. Despite the fact that this law has been on the books for years, we recently addressed the constitutional problems with this scheme, and won. We had a client who had his vehicle seized over a year ago. While we’ve spent over a year fighting the criminal charges lodged against him (he was charged with “refusing” a breath test. In reality, the Intoxilyzer 5000 “refused” to accept his breath sample), his vehicle sat in an impound lot, depreciating in value while remaining exposed to the elements. Meanwhile, the State patiently waited for permission to sell it at auction and divvy up the spoils.

 On our motion for summary judgment, the court ruled that the forfeiture law is unconstitutional, and the vehicle was ordered to be returned. By convincing the court that this law – a law that has been enforced for years – was unconstitutional, we took a bleak looking situation and ended up getting results for our client.

Winning a DWI case means winning the criminal case, the civil Implied Consent case, and sometimes, the vehicle forfeiture case. If you’ve been charged with a crime – especially a crime that resulted in a forfeiture of your hard-earned personal property - you’ll need an attorney who knows how to defend all of your rights. That’s when you need to call Charles Ramsay Law Office. Where other attorneys have given up, we can get results.

Please view our website at Ramsay Results

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