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

Many people believe our government should have secrets, at least when it comes to our national security. But scientists agree that forensic testing should be open. Their formulas, procedures and test results must be reproducible in order to be good science. But government scientists and the companies that supply them disagree.

CMI, Inc. – Owensboro, Kentucky

CMI, the manufacturer of the Intoxilyzer 5000 and Intoxilyzer 8000, is holding its 26^th Annual Meeting of the Intoxilyzers Users Group in Providence, Rhode Island on August 15-19, 2010. Although I own my own Intoxilyzer 5000 and am certified to operate the breath test machine, I am not permitted to attend.   CMI is guarding the program’s agenda, only saying “This conference promises to be an exciting one with many new things, courses, and information to share.”

CMI is notorious for its secretiveness. It has shunned its customers – numerous states including Arizona, Florida, Georgia, Michigan and Minnesota – by refusing to provide access to the software that runs its breath test machines. Only after we obtained a federal court order, was CMI forced to permit us access to its source code. (Our experts are currently in Kentucky at CMI’s headquarters examining the Intoxilyzer 5000 software).

Intoximeters, Inc. – St. Louis, Missouri

Intoximeters, another breath testing company which produces the EC/IR II and the alco-sensor, also conceals the science behind its breath test machine. It is holding its 2010 Users Group Meeting in its home town September 12-15, 2010. Intoximeters program will include the “’Thomas Workman’ Update” and “Source Code Challenges”. Apparently it felt it was being to open, however, as it recently revised its program omitting the above and instead chose the more generic “Legal Challenges.”

It, too, however, will not permit me or defense experts to attend.

Minnesota County Attorneys Association – St. Paul, Minnesota

Under our government’s leadership, it’s not surprising breath test manufacturers are so secretive about their breath test machines, the science they use and the software that runs their machines. The Minnesota County Attorneys Association (MCAA) is one of those organizations that perpetuates the covert treatment of DWI law enforcement. 

The MCAA describes itself on its internet page:

The Minnesota County Attorneys Association is an independent, voluntary organization of County Attorneys dedicated to improving the quality of justice in the State of Minnesota. The Association is a not-for-profit corporation governed by a Board of Directors elected annually by the membership.

The members of the Association are dedicated to the accomplishment of this Mission by developing consensus on legal and public policy issues of statewide significance to County Attorneys. The Mission will be implemented competently and professionally while adhering to the highest ethical standards of the legal profession.

The MCAA closely follows my work. On its home page, it tracks my issues including the consolidated source code case, urine testing cases (see “Matthys Order”), and obtains transcripts (see “Implied Consent Transcript Bank”) of my expert witnesses and case issues. It will not give me access to its indexed transcript data base.

MCAA’s clandestine treatment of DWIs is particularly troubling. Its annual DWI Program includes:

• Initial contact, probable cause and preconditions to a test request
• Testing and refusal issues
• Right to counsel and additional testing issues
• Tips from judges and prosecutors on how to proceed with your case  
• The impact of administrative rules

The program, entitled “Impaired Driving: New Laws, New Issues, New Decisions” will be held June 25, 2010 at the Minnesota Bureau of Criminal Apprehension in St. Paul.

To help satiate my thirst for knowledge, I thought it would be beneficial to attend. I registered and paid my fee. However, the MCAA told me that defense lawyers are not welcome at the continuing education seminar.

I was surprised given the fact that it advertised one of courses would include “Tips from judges … on how to proceed with your case.” I wonder which judges will present the (secret) tips and if they know the MCAA is precluding defense lawyers from hearing the inside information?

Should your government keep secrets? Maybe when it comes to matters of national security. But not when it comes to “science” that puts innocent people behind bars. 

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link

Almost every client that calls us for legal advice and representation will ask it at some point. Most clients who retain us will hear the question from their friends and family. The government and the media have done a great job of making the “science” of DWI prosecutions seem unbeatable.

Which always begs the question: is it even possible to beat a DWI charge?

The answer, our answer, and the correct answer, is always “YES!”

A good criminal defense attorney will help guide anyone through the hoops, traps and pitfalls that make up our complex DWI laws. A great defense attorney will have a proven track record to demonstrate their ability and desire to make sure that you get the best effort and the best outcome possible. But the truly top-notch defense attorneys are the ones who understand that the “science” surrounding DWI prosecutions is little more than smoke and mirrors - and like any illusion, once you see the “science” for what it really is, your attorney is in the best position to reveal how shaky the State’s case really is.

A recent situation that arose in Colorado highlights the fact that any test - blood, breath, or urine - can successfully be challenged in court by top-notch attorney. In Colorado, over 200 blood tests were found to have been horribly botched - some tests reported a blood alcohol concentration 40% higher than the actual concentration should have been! Everyone here at Ramsay Law Office shuddered a little bit at that statistic, but what really gets to us is that the crime lab still can’t explain how so many tests came back with such inaccurate results.

Many people convince themselves that, “if the State’s test says I was over the legal limit, I must have been over the legal limit.” I’m sure that the vast majority of all of the improperly analyzed samples in Colorado went unchallenged in court. And that is the only real way to lose a DWI case - to not examine the evidence, to take the State’s word at face value.

At Ramsay Law Office, we’ve won many “unbeatable” cases, and we’ve done it by staying current with the scientific literature and never taking the State’s evidence at face value. If you’ve been charged with a DWI, and the State has a blood, breath, or urine test up their sleeve, don’t buy into the hype. Contact Ramsay Law Office - we don’t buy into the hype either. We get results.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Last week we published our blog series demonstrating how independent testing and independent analysis of the state’s blood and urine samples may help drivers beat DWI urine or DUI blood tests. After we concluded the series, we ran into an interesting wrinkle when we sought to have two urine samples independently analyzed. 

The prosecutor informed us the government had destroyed the urine samples!

I believe the state has a duty to retain such critical evidence until the case has concluded. It should not destroy any blood or urine test samples unless and until the driver has actual knowledge the state intends to destroy the sample and waives the right to examination.

In response, we amended our motions to suppress admission of the test results and to dismiss the DWI charges. We filed the following motions:

1)            Dismissing the Complaint based on the State’s destruction of the evidence.  Specifically, admission of the urine test report violates Defendant’s constitutional rights to Confrontation, pursuant to Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), because the state intentionally destroyed the evidence, thereby denying Defendant the opportunity to independently inspect, evaluate and test his alleged urine sample;

2)         Dismissing the Complaint based on the State’s destruction of the evidence.  Specifically, admission of the urine test report violates Defendant’s constitutional rights to Due Process, pursuant to California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528 (1984), because the state intentionally destroyed the evidence, thereby denying Defendant the opportunity to independently inspect, evaluate and test his alleged blood sample;

3)         The State has violated the Minnesota Rules of Criminal Procedure and Defendant’s Due Process rights by failing to provide Defendant with his blood sample as part of his requested discovery;

4)         The law of spoilation of evidence is inconsistent with the Minnesota Rules of Criminal Procedure and cannot be applied in light of the rights of Defendant to Due Process and Confrontation; and

5)          Dismissing the charges against Defendant as the State’s destruction of Defendant’s urine sample impermissibly shifts the burden of persuasion onto Defendant for a key element of the offenses with which he is charged.

A judge had previously ruled in our favor when presented with these issues. In a DWI case we brought to jury last July, the judge had ordered the blood test suppressed because the state had destroyed the blood sample. We had challenged admissibility based our client’s right to confrontation, among other things. 

In his order, the judge explained why due process required him to suppress the state’s evidence:

Due process requires that a criminal defendant have the same access to information as the State when the State offers the result of a scientific test. The State did not give Defendant an opportunity to stop destruction of this evidence. If the State offers into evidence the blood-test report, the State must also call the person who prepared the blood-test report, and a person who can testify as to the chain of custody. Without access to the blood sample, Sickmann is denied the right granted in the rules of discovery to reproduce the state's test results. The reproducibility of scientific test results is an important factor when considering the reliability of the test results.

The judge also explained why the Sixth Amendment’s Confrontation Clause requires suppression:

The BCA's policy of destroying the blood or urine sample, therefore, eliminates [Defendant]'s ability to reproduce the blood test results and limits the methods available to him to challenge the reliability of those results. The scope of the [Defendant]'s cross-examination of the witnesses who prepared the test report is unconstitutionally limited.

The Sixth Amendment's guarantee that an accused shall enjoy the right to be confronted by his accusers is vindicated only upon effective and adequate cross-examination of those witnesses. The BCA's policy of destroying the blood sample after a predetermined period of time renders [Defendant]'s opportunity to cross-examine the state's witnesses inadequate and ineffective. Because [Defendant]'s cross-examination of the witnesses who prepared the blood test report is inadequate and ineffective in light of his inability to reproduce the results, his rights under the Confrontation Clause are violated and this violation precludes admission of the blood test report.

Accordingly, this Court must conclude that at subsequent trial of this matter, the blood test report of the BCA is inadmissible.

We will see if other judges understand the constitution as Judge A.P.

Check out our other postings on this issue.

Part 1: Freedom through Independence: Crises in Our Nation’s Forensic Science System

Part 2: Freedom through Independence: Erroneous DWI Blood Test Results

Part 3: Freedom through Independence: Erroneous DWI Urine Test Results

Part 4: Freedom through Independence: Erroneous DWI Intoxilyzer 5000 Breath Test Results

• Email This
• Print
• Comments
• Trackbacks
• Share Link

MINNESOTA SOCIETY FOR CRIMINAL JUSTICE

The Premier Minnesota Criminal Defense Lawyers Organization Representing Those Charged with DWI

The DWI Defense Seminar for Minnesota

FRIDAY, JUNE 11, 2010

CHATEAU AT MEDICINE LAKE

To enroll: Download the MSCJ DWI CLE Brochure

10715 South Shore Drive, Medicine Lake, MN 55441

To enroll: Download the MSCJ DWI CLE Brochure

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Today we conclude our four part blog series on independent testing and analysis. In parts two and three we discussed how independent analysis of the state’s blood and urine samples revealed inaccurate BCA test results. Today our series concludes with our posting of the administration of independent testing. We describe a case litigated last month where our client’s independent blood test refuted the state’s breath test.

INACCURATE DWI BREATH TESTS

We have revealed numerous problems with Minnesota’s Intoxilyzer 5000 breath test machine in this blog and elsewhere. Yet the BCA continues to claim the breath test machine yields accurate, valid and reliable results. With a little foresight, leading to the administration of an independent blood test, we are able to demonstrate the inaccurate breath test results.

The Intoxilyzer 5000 is designed to retain a portion of the breath sample collected in an apparatus called a “tox trap”, a silicon device that attaches to a connection on the back of Intoxilyzer. After a subject has supplied a breath sample, the machine blows the sample out an ejection port, to which the the tox trap is affixed. The operator then seals the tox trap, keeping the air within the tox trap so that it can be independently analyzed in the future.

Although Minnesota breath test machines have this capability, the Minnesota Bureau of Criminal Apprehension (BCA) decided against using a tox trap to preserve breath samples. As a result, we are unable to obtain an independent analysis of a subject’s breath as we are able to do with blood and urine samples. 

We don’t let the BCA’s decision to discard critical evidence prevent us from fully representing our clients. While we can’t independently analyze a breath sample, we are able to obtain an independently collected sample under Minn. Stat. sec. 169A.51, subd 7 (b). The statute states:

The person tested has the right to have someone of the person's own choosing administer a chemical test or tests in addition to any administered at the direction of a peace officer; provided, that the additional test sample on behalf of the person is obtained at the place where the person is in custody, after the test administered at the direction of a peace officer, and at no expense to the state.

Mark’s DWI Breath Test Case & Independent Blood Test 

In a case I litigated last month, we introduced the results of my client’s independent blood test to demonstrate the breath test results were inaccurate. My client was arrested for DWI. He had called me before giving a breath test. During the “midnight call” I arranged for him to obtain an independent blood test.  Mark submitted to the breath test which showed his alcohol concentration was .11, well above the legal limit. His independent blood test, administered two hours and 20 minutes later was .04. 

The two test results cannot be reconciled.

The average burn off rate recognized by forensic scientist (including the Minnesota Bureau of Criminal Apprehension) is .015/hour. Multiplying .015 by 2 1/3, we had a total “burn off” of .035 during the time between the breath test and the blood test. Subtracting the burn off of .035 from .11, the breath test result should have been .075 at the time the blood was drawn – under the legal limit! The breath test result was very inaccurate.

Conversely, if we were to add the total burn off of .035 to the .04 blood test result, we would see that my client’s actual alcohol concentration by blood at the time of the administration of the breath test was .075!

We are well aware of Minnesota’s Intoxilyzer 5000 software problems. The problems deal with sampling, volume measurement and specificity. The BCA continues to insist the test is accurate. This demonstrates the Intoxilyzer 5000’s problems are well beyond source code issues, it does not provide accurate test results. Only by obtaining an independent blood test were we able to prove the breath test inaccurate.

Part 1: Freedom through Independence: Crises in Our Nation’s Forensic Science System

Part 2: Freedom through Independence: Erroneous DWI Blood Test Results

Part 3: Freedom through Independence: Erroneous DWI Urine Test Results

Part 4: Freedom through Independence: Erroneous DWI Intoxilyzer 5000 Breath Test Results

• Email This
• Print
• Comments
• Trackbacks
• Share Link

This week we present our blog series about the value of obtaining independent tests and conducting independent analysis to reveal inaccuracies in government testing. This year alone our firm discovered cases where the Minnesota BCA has reported inaccurate DWI test results. 

Yesterday, we told you how independent analysis of the state’s blood sample in a case last month revealed that it was inaccurate. The BCA reported our client’s blood alcohol concentration was over the legal limit of .08 and independent analysis by a local reputable lab showed it was actually .078 – under the legal limit. 

Today our series continues with urine testing. We describe two separate cases from this year where the prosecutors agreed to dismiss charges as a result of our independent analysis of the state’s sample. In one of the cases, however, the results were actually higher than what the BCA reported.

INACCURATE DWI URINE TESTS

We have blogged extensively that urine testing is not generally accepted by the scientific community as a valid and reliable means of measuring impairment or determining the amount of alcohol in a person’s body. That is another topic. This blog posting addresses analyses of the samples. 

When a urine sample is collected for DWI prosecution, the lab must ensure the evaluation of the sample conforms to those procedures necessary to ensure the test results are valid, accurate and reliable. It appears that the Minnesota BCA does not share this view. 

Eric’s Urine Test Case

In January we tried Eric’s urine case to jury. Before trial we had the state’s urine sample analyzed by an independent lab. The Minnesota BCA had reported the urine alcohol concentration as more than .08. The independent test result was a .07, below the legal limit. 

The information was sufficient to convince the prosecutor to dismiss the .08 charge. The key evidence in most DWI trials – the state’s DWI alcohol sample – became irrelevant. With the critical evidence removed from the case, we easily prevailed on the impaired charge and the jury acquitted Eric. See, First Not Guilty Verdict of 2010: Hennepin County Jury Acquits Man of DWI Charges. I don’t know if the outcome would have been the same without the independent analysis of Eric’s urine sample.

James’ Urine Test Case

While we are unaware of the precise reason for the discrepancy between test results in Eric’s case, we are aware the BCA procedures are lacking as they do not ensure the test results are scientifically valid, reliable or inaccurate. For example, glucose – a sugar found in one’s urine – may ferment, artificially increasing an alcohol concentration test result. Reputable labs promulgate procedures to check for glucose and avoid reporting tests that may be contaminated with the sugar. 

Nationally recognized forensic scientis, Dr. Staubus, recently provided me with the State of Wisconsin’s procedures it implemented to ensure test samples are not contaminated with glucose. Wisconsin, unlike Minnesota, employs significant requirements to ensure glucose does not interfere with valid and reliable test results. They include lab technicians to:

1.            Check all ethanol-positive urine specimens for the presence of glucose with a Keto-diastix reagent strip.  Record the Keto-diastix result on the sample submission form (implied consent specimens) or internal tracking form (MVD, death investigation specimens).

2.            If a urine specimen is glucose-positive, store a room temperature for at least two days and re-analyze for ethanol concentration.  If the ethanol concentration has increased by 5% or more, the ethanol result is not reported and an appropriate comment is placed on the report.

The BCA claims that because each urine kit contains sodium fluoride, it need not promulgate procedures for collection, storage and transportation of urine samples to prevent fermentation. For the same reason, it need not promulgate procedures to check for glucose. 

We proved the BCA wrong. James was arrested for DWI and given a urine test.  The BCA reported the alcohol result as .16.  James was adamant the result could not be correct. We sent the sample to an independent lab to be retested.  The independent test result was .18. The urine alcohol concentration had increased by more than 12 percent! As I explained in a previous blog post, More Issues with DWI Urine Testing: Fermentation, we demonstrated that fermentation can and does occur. Once we provided the prosecutor documentation of our independent analysis, he dismissed all the DWI charges. 

In both Eric’s and James’ cases, we were able to prove the state’s tests results were inaccurate due to independent analysis of the state’s samples. We were able get the .08 DWI charges dismissed and prevailed in both cases.

Tomorrow in the final post of our four part series, we address a different method of checking the accuracy of the state’s alcohol test. Unlike the previous posts where we covered independent analysis of the state’s samples, we will discuss how administering an independent test at the time of arrest may provide valuable information in the defense of a DWI breath test case.  

See our previous postings in the series:

Part 1: Freedom through Independence: Crises in Our Nation’s Forensic Science System

Part 2: Freedom through Independence: Erroneous DWI Blood Test Results

Part 3: Freedom through Independence: Erroneous DWI Urine Test Results

Part 4: Freedom through Independence: Erroneous DWI Intoxilyzer 5000 Breath Test Results

• Email This
• Print
• Comments (2)
• Trackbacks
• Share Link

Yesterday, we blogged about the serious deficiencies of our nation’s forensic science system.  We noted that although Minnesota’s crime lab has escaped wide spread scandal (notwithstanding the source code debacle), anecdotal evidence has emerged indicating the Bureau of Criminal Apprehension (BCA) is not immune from shoddy work.

Using independent analysis and independent testing, our firm discovered specific cases this year where the Minnesota BCA has reported inaccurate Driving While Impaired (DWI) test results.  The BCA’s errors apply to all three DWI alcohol tests – blood, breath and urine.  Today, we report on an erroneous BCA blood test result.

INACCURATE DWI BLOOD TESTS

Our client (“JM”) was arrested in February, 2010 for suspicion of driving while intoxicated in Ramsey County, Minnesota.  The police asked JM to submit to a blood test and she complied.  A paramedic withdrew the blood at the police station and mailed the blood sample to the Minnesota BCA for analysis.  The BCA reported JM’s alcohol concentration to be .08, over the legal limit.  The state revoked JM’s license to drive and charged her with Fourth Degree DWI.

We believe that good DWI defense attorneys never assume that government tests results are accurate.  To verify JM’s BCA test results my firm had her blood retested by a reputable, independent lab.  The results were astounding.  The independent lab’s analysis revealed the BCA test results were inaccurate.  The independent lab results were .078 – below the legal limit!

We have already had JM’s driver’s license reinstated and the incident removed from her driving record.  With the benefit of the independent lab results of JM’s blood sample, I fully expect we will be successful in the criminal DWI case as well. 

Blood testing is widely recognized as the “gold standard” for DWI alcohol testing.  But a test is only as good as those who conduct the testing and only as reliable as the procedures they follow, including reporting the uncertainty in the test results (for an excellent article about metrology and reporting uncertainty, see The Truth About Forensic Science by Pennsylvania attorney, Justin McShane).

When investigating a blood test case, DWI lawyers should obtain not only the final lab reports, but also such information as all Quality Control tests used; all Quality Control tests performed on the test kit; any and all records relating to the test results; Chain of Custody records; the actual Gas Chromatograms; and Proficiency Records or results of proficiency tests for the BCA lab and the analyst who conducted the test.

Finally, attorneys should consider having the government’s DWI blood test results independently evaluated.  In many cases, your clients may gain their freedom through independence.

Tomorrow in part three of our series on independent testing and analysis:  DWI urine test results.

Part 1: Freedom through Independence: Crises in Our Nation’s Forensic Science System

Part 2: Freedom through Independence: Erroneous DWI Blood Test Results

Part 3: Freedom through Independence: Erroneous DWI Urine Test Results

Part 4: Freedom through Independence: Erroneous DWI Intoxilyzer 5000 Breath Test Results

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Our society has a blind faith in government forensic test results. The public’s confidence is particularly fervent in drunken driving cases. This confidence in government tests, however, is unfounded. 

In 2009, the National Research Council reported serious deficiencies in the nation's forensic science system and called for major reforms and new research. It discovered that mandatory certification programs for forensic scientists were lacking, as were strong standards and protocols for analyzing and reporting on evidence. It found a scarcity of peer-reviewed studies establishing the scientific bases and reliability of many forensic methods.

Media reports provide support for the 2009 study. Major crime labs around the country have been exposed for unscrupulous behavior, resulting in erroneous, untrustworthy forensic testing. For example: 

• In Washington, a judge found “ethical lapses, systemic inaccuracy, negligence and violations of scientific principles” in the state’s crime lab and threw out hundreds of breath tests.
• The mayor completely shut down the Detroit crime lab after voluminous errors were discovered.
• The Houston crime lab has had numerous failures.
• Colorado Springs metro crime lab’s blood alcohol results were just plain wrong.
• San Francisco’s crime lab is in the midst of a scandal which jeopardizes “thousands of cases.”

Minnesota’s crime lab, the Bureau of Criminal Apprehension (BCA), has thus far escaped wide spread scandal (notwithstanding the source code debacle). Still, it is not immune. Anecdotal evidence has emerged, signaling similar problems exist in Minnesota. 

This year, our firm has discovered the Minnesota BCA has reported inaccurate test results in specific cases with all three of its DWI alcohol tests: blood, breath and urine. In the following three parts of our series, we will provide information about these cases demonstrating that individual drivers can help protect themselves through both administering independent tests and performing independent analysis of the state’s DWI alcohol samples.

Part 2: BCA Reports Inaccurate Blood Test Results

Part 3: BCA Reports Inaccurate Urine Test Results

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link