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

Many people believe that it is impossible to beat a drunk driving criminal charge or the DWI driver’s license case. The public believes this for a number of reasons. 

First, ill informed police and prosecutors believe DWI science is beyond reproach. 

Second, attorneys who are ill prepared to handle complex DWI cases will often merely exacerbate the problem. In most cases they take their client’s money, then hold their hand as they plead them guilty. 

Finally, the personal guilt that many people feel when charged with DUI crimes can be overwhelming, even if they thought that they were okay to get behind the wheel. They either hire a “dump truck lawyer” or plead guilty. 

We’ve busted these DWI myths time after time. It takes hard work, dedication, and a heartfelt desire to vigorously defend our clients, but in the end, the effort pays off. Here’s a sampling of some of our more recent successes, accumulated over the last few weeks. These victories demonstrate our commitment to our clients and our never-ending crusade to debunk the myth that DWI’s are “unbeatable.”

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“B Card Violation” – Judge Order Driver’s License Reinstated

The Department of Public Safety cancelled my client’s license to drive. They claimed that he was driving in violation of his restricted driver’s license (which prohibited him from consuming ANY alcohol while behind the wheel).

Our client was involved in an accident in Hennepin County. After reporting to the scene, the police officer claimed to smell an order of alcohol, said our client failed the Horizontal Gaze Nystagmus test, and reported my client’s alcohol concentration was .06 on the preliminary breath test. 

Many attorneys believe such “B card” cases are impossible to win – after all, the government just has to prove that our client had a drink (not that he was impaired). Despite the common misconception that this type of case is unwinnable, we won! We challenged the DPS’ evidence in court and convinced the judge to overturn the license cancellation and reinstate my client’s driver’s license. 

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DWI – Police Officer Coerced Driver’s “Consent” to take DWI alcohol test

In another case we challenged how the police officer obtained our client’s “consent” to a urine test. As we’ve blogged about before, we believe Minnesota’s implied consent law is unconstitutional as it unlawfully coerces all drivers to submit to DWI alcohol testing. 

The judge disagreed with our argument, and we lost at the district court level. That didn’t slow us down – we simply took the fight to the next level, and we appealed to the Minnesota Court of Appeals. After we submitted our appellate memorandum, we received a stunning letter from the government – they would agree to give our client his license back (a victory) if we withdrew the appeal.   Thus, solely on the strength of our written memorandum (before we even had to argue the case in front of the appellate court) we won the case!

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Prostitution Sting: Soliciting Prostitution – Case Dismissed

Our firm practices only criminal defense and related civil cases, e.g., automobile forfeitures. Although the majority of our case load is Minnesota DWI cases, we regularly represent people charged in other types of cases as well. 

In Ramsey County, our client was arrested as a result of a St. Paul Police prostitution sting. He was charged with Loitering with Intent to Solicit Prostitution. After we obtained the police reports, video & audio recordings, and other documents, we started pushing the government hard – and were able to obtain a complete dismissal of the charges.

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Fifth Degree Criminal Sexual Conduct – Case Dismissed

In another criminal case in Ramsey County, the government charged our client with Fifth Degree Criminal Sexual Conduct. We challenged the criminal charges and showed the prosecutor the weaknesses in its case. Again, they dismissed all of the criminal charges.

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DWI – Bad Seizure– Judge Orders License Reinstated after Urine Test

In a Scott County case, our client was charged with a DWI after he was arrested and given a urine test. The results were .11, well over the legal limit. 

Through experience and a desire to fully defend our client, we were able to get the state to dismiss the DWI charges against our client. Shortly thereafter, we convinced the judge in the implied consent case to rule in our favor as well, and restore our client’s driver’s license. 

The end result of this “unbeatable” DWI charge? All criminal charges were dismissed, and our client’s driving record doesn’t even reflect being pulled over for a DWI offense.

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DWI – Judge Grants Motion for Post-Conviction Hearing

A judge granted our motion for a post-conviction hearing in our efforts to get a new trial in a highly publicized case that we took to trial more than four years ago. In that case, our client was charged with “test refusal” on the Intoxilyzer 5000 because she was unable to provide an “adequate sample.” She begged for the chance to take another test, but wasn’t allowed to. Because we had not yet uncovered the critical flaw in the Intoxilyzer that causes such errors, the jury found our client guilty of test refusal.

Since that trial, our client’s conviction was overturned by the Minnesota Court of Appeals, and then reversed again by the Minnesota Supreme Court. 

Now, four years later, the trial court judge is granting us a new hearing based on the evidence we discovered concerning the faulty source code that runs Minnesota’s breath test machine, the Intoxilyzer 5000. The case is scheduled to be heard next month.

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DWI – Judge Grants Motion for Unprecedented Access to the Source Code

In a civil license revocation case involving the same driver as above, a judge granted our motion for the source code to the Intoxilyzer 5000. However, this case is a good example of what can happen if you reach for the stars; we not only asked for the source code, but also demanded key pieces of source code information well beyond that which was provided in the federal court settlement last year. After listening to our arguments, the court granted our motion, further opening the door to prevent our client from being wrongfully charged as a “test refusal.” 

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DWI – .19 Blood Test Dismissed

DWI – .19 Breath Test Dismissed (Source Code)

DWI – .10 Breath Test Dismissed (Source Code)

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“Can’t Win ‘em All . . . But Can’t Win Any If You Don’t Try”

A prosecutor in Ramsey County did manage to hand us our first DWI trial loss in years, in a case where the judge admitted into evidence a .14 urine test result.   After careful consultation, our client decided that he wanted his case tried to a jury, despite the prejudicial test result. That jury ultimately found our client guilty.

Fortunately, the judge gave our client the exact same sentence he would have handed down had our client pled guilty without going to trial. As long as there is no disincentive to go to trial, we’ll do just that!

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DWI –Just Reinstates License to Drive – Right to Counsel – .14 Breath Test

In a huge win in a difficult case, a Hennepin County judge ruled in our favor and reinstated our client’s driver’s license after an implied consent hearing (we had already beat the DWI charge on the criminal case). This was a difficult situation where our client was deaf, and had repeatedly begged the arresting officer for either an interpreter or the advice of a lawyer. Although the officer did make some attempts to communicate with our client, he did not know American Sign Language, and the court agreed that her right to counsel was not vindicated. 

This is a huge win not only because our client got her driver’s license back, but because this case also resulted in the police department installing a TTY communication device, for hearing-impaired persons.

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Finally, Chuck was named, “Geek of the week” by nationally renowned attorney, Justin McShane of Pennsylvania. The “Truth About Forensic Science”, McShane’s forensic blog, named Ramsay winner of his weekly forensic science quiz, aptly entitled, “Geek of the Week.”

Okay, so it is not a Nobel, but it's a good distraction for Chuck.

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 If you follow our blog, you noticed that we recently exposed the fact that the State was charging drivers with DWIs based upon incorrect urine test results. It now appears that this error was due to a systematic failure to implement proper procedures. Simply put, the lab wasn’t performing a routine calculation on its urine samples to ensure that the results were being properly reported.

Here is the Minnesota Bureau of Criminal Apprehension's carefully-worded explanation of this error.  It can also be read below.

Bureau of Criminal Apprehension
1430 Maryland Avenue E., St. Paul, Minnesota 55106
Phone: 651/793-7000 FAX: 651/793-7001 TTY: 651/282-6555
Internet: http://www.dps.state.mn.us/bca/

July 1, 2010

Sgt. Steven Johnson
Anoka County Sheriff’s Office
Tri County Regional Forensic Laboratory
325 East Main Street
Anoka, MN 55303-2489

Re: Summary of an onsite visit to Tri County Regional Forensic Laboratory

Anoka – Sherburne – Wright Counties

BCA Forensic Scientists Dr. Edward Stern and Brent Nelson visited the Tri County Regional Forensic Laboratory located at 13301 Hanson Blvd NW in Andover, MN. The laboratory requested an outside assessment of their alcohol-testing program after a client raised a concern about urine alcohol results. Mr. Nelson and Dr. Stern met with Lieutenant Steve Johnson, Crime Laboratory Director, in the presence of Sergeant Andy Knotz, Quality Assurance Manager, Lead Forensic Scientist Steve Banning, and Forensic Scientist Miranda Thurmer.

Lt. Johnson advised that there was a concern by one of their clients regarding the reported alcohol result and the alcohol results obtained via preliminary breath test results (PBT). While there are explainable situations that would lead to discrepancies with a PBT result conducted roadside versus the evidential test performed such as mouth alcohol effects, possible slight matrix differences, calibration of the PBTs, as well as the time the tests were conducted, the concern raised by the client was taken very seriously. Testing and reporting of the alcohol results was suspended while the root cause of the discrepancies was investigated. This investigation in part consisted of an inquiry to the Bureau of Criminal Apprehension in regards to reporting parameters for alcohol results. It was initially thought the discrepancy involved the application of a conversion factor to convert the results that were obtained in a concentration of grams per 100 milliliters (g/100mls) to the Minnesota statutory value for urines of grams per 67 milliliters (g/67mls).

Review of the of the Quality Control results obtained from the analytical runs from 10/8/09 to 6/23/10 demonstrated acceptable performance across the various analytical levels of 0.05 g/100ml to 0.20 g/100mls. The R- Squared values obtained for all the calibration curves during this time period also demonstrated acceptable values. Also reviewed was the external proficiency performance from the samples provided from the College of American Pathologists (CAP) as well as the CTS proficiency exams. These results all demonstrated this laboratory’s ability to quantify alcohol within the acceptable parameters in accordance with these proficiency tests.

Evidence of quality assurance was also demonstrated by the documentation and maintenance of instrument performance checks, instrument and temperature maintenance logs, as well as the certificates of analysis of the reference standards used demonstrating traceability.

Their Quality Manual was also reviewed in part and states in Section 5.4.7.1 (pertaining to control of data, calculations and data checking) “Each laboratory section is responsible of developing and documenting procedures to ensure that the data is free from calculation errors and quality control measures are reviewed and evaluated before that data is reported.” A review was conducted on their current procedure entitled “Alcohols by Headspace Gas Chromatography” Version 1, November 2009. A draft revision, version 2, also reviewed, contains a new section entitled “Calculations” which defines the application of the conversion factor to convert the urine alcohol results obtained in the concentration units of grams per 100 mls to grams per 67 mls. This proposed change to the procedure should help ensure that the urine alcohol result is converted properly to the units of concentration in accordance with the current statute requirements. It should be noted that even though this laboratory is not currently accredited under ISO 17025 standards, it contains the components of the key elements regarding customer service and quality of results.

The procedure “Preparation of Whole Blood and Urine Controls- version 1, Jan. 2010.” was reviewed. This procedure defines the preparation of in house blood and urine controls. The procedure was found to be correct to produce the desired concentrations, however the urine control proportion resulted in a concentration expressed as grams per 100 mls not grams per 67 mls. It was recommended to either covert the expected value to grams per 67 mls or more appropriately change the procedure to target a urine alcohol of 0.08 grams per 67 mls.

The laboratory was challenged with three spiked urine alcohol specimens previously prepared and examined at the BCA Laboratory. These specimens were analyzed during the site visit and all produced acceptable results when the applicable conversion factor of 0.67 was applied.

The issue was that the urine alcohol results obtained in grams per 100 milliliters were not converted to grams per 67 milliliters in accordance with the statute. The documentation presented demonstrated this laboratory’s ability to quantify alcohol. It is recommended that amended reports be issued for the urine alcohol results conducted during this time period. The amended urine alcohol results that were obtained in grams per 100 milliliters must have the applicable conversion factor of 0.67 applied to the value obtained.

Sincerely,
Staci A. Bennett
Toxicology Section Supervisor – BCA Laboratory
CC: Debra Springer – Assistant Laboratory Director

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This is part two of our two-part discussion of Minnesota’s strange forfeiture scheme. At this point, you’ve been arrested for DWI. You haven’t been found guilty (you haven’t even been to court yet) but the State has already told you that it’s taking your car. Forever. What can you do to stop this vehicle forfeiture?

Most people assume that they’ll be able to take this case to court, where they are presumed innocent until proven guilty. That seems fair, right? Too bad that’s now how forfeitures work.

You see, you’re already presumed guilty when the State seizes your vehicle. Without any court hearing, merely on the say-so of the arresting officer, the State has seized your vehicle, and is likely planning on selling it off for profit.

Do you think this is unfair? Well, you have exactly thirty days to file a petition in court to contest this forfeiture - and you’d better be quick, because 31 days later you lose ALL RIGHTS TO YOUR VEHICLE. The criminal charges against you could be dismissed on the 31^st day after your arrest, and the State would STILL keep your vehicle!

We hear this type of horror story far too often. A country that once fought a war to prevent government seizure of personal property no longer seems to care that the government routinely grabs the property of citizens for its own profit.

Ironically, even though you have less than a month to file a petition to get your car back, you won’t even see a judge until after your criminal case is resolved - and unless you plead guilty, that could take a year or more (especially if you took a test on the awful Intoxilyzer 5000).

If this sounds like an unconstitutional get-rich-quick scheme, you’re right. We’re working hard to convince judges statewide that this scheme is blatantly illegal. Unfortunately, in order to even use this argument, we need to file a petition within 30 days.

Please read about part one of this blog post here.

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Today is the first blog in a two-part series regarding Minnesota’s forfeiture laws. As any polished attorney knows, most DWI arrests included numerous “collateral” punishments. You will lose your license; you may become ineligible for car insurance; you may even lose your job. However, what few people know is that it’s also likely that the State is going to seize your car and sell it for profit.

These “vehicle forfeitures” aren’t just reserved for the five-time repeat offenders that make the news. In fact, even a first time DWI arrest can result in vehicle forfeiture . . .

Example: you and your significant other are driving to the babysitter’s after going out for dinner with friends. You had two glasses of wine with your meal, but don’t feel the slightest bit tipsy. You pick up your 8 year old child, and head for home. However, before you get there, the police pull you over for “weaving within your own lane.”

The officer asks if you had anything to drink, and you honestly answer “yes.” (It’s not a crime to drink and then drive in Minnesota - it’s only a crime to be impaired). You are told to step out of your car and perform some field sobriety tests. You do fine, but the officer thinks otherwise, and arrests you for DWI - in front of your family.

You get taken down to the police station and told that you need to submit to a breath test on the Intoxilyzer 5000. You’re nervous, but at the same time anxious to pass the test and rejoin your family. However, no matter how hard you blow, that Intoxilyzer won’t “accept” your sample. The officer is yelling in your ear to “blow harder” but no matter what you do, the machine keeps calling your sample “deficient.” After four minutes, the officer tells you that he’s going to charge you with “refusal to test.”

You can cry, plead and beg at this point, but the fact is that you are going to be charged with a crime - and not just any old crime - an enhanced crime. Because you had someone under the age of 16 inside your vehicle, and because you “refused” to test, you are going to be charged with a gross misdemeanor, 2^nd degree DWI.

And woe to someone who has even one DWI conviction already on their record. With one conviction on your record, it’s very easy for a DWI arrest to turn into a situation where the State is going to sell your car for profit.

Now, wait. The police officer that chose to arrest you can take your car, immediately, and can then sell that car for profit before you even get to complain to a judge? That’s right . . . although if you have a good attorney in your corner, you can still get your car back.

Be sure to check back Monday for an explanation of what you can do to protect your rights to your vehicle.

Please read part 2 of the blog here.

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While recently working on one of our clients DWI cases, we noticed something interesting: the client’s urine sample hadn’t been tested at the Minnesota Bureau of Criminal Apprehension, as is nearly every sample collected in Minnesota. Instead, the sample had been sent for analysis to the TriCounty Regional Forensics Laboratory in Anoka, Minnesota.

It didn’t take long to uncover a truly massive problem - this lab wasn’t reporting accurate test results. In fact, it was making huge mistakes.

As if there weren’t enough problems with urine testing, we discovered another error unique to this type of test. Under Minnesota law, a driver is per se intoxicated if either their blood alcohol concentration or their urine alcohol concentration is above .08. However, whenever a urine sample is tested, the final result needs to be multiplied by .67 to take into account the fact that alcohol levels are naturally higher in urine than in blood. (Therefore, if a urine test result comes back at a .11, the forensic lab must be multiply that by .67 to get the “actual” alcohol concentration, which would actually be .07!)

When the BCA reports a urine alcohol concentration, it automatically does this routine, elementary-school math before sending its results to the prosecutor. However, in this case TriCounty Regional Forensics Laboratory forgot to perform a simple math exercise, and reported our client’s alcohol concentration 50% higher than it should have been!

Because we constantly scrutinize all of the evidence that the State is bringing against our clients, we caught this error before it could permanently affect our client’s rights. However, seeing this mistake on one urine test makes us wonder . . . how many other urine tests were also reported incorrectly? How many people pled guilty to DWI based on a urine test that they just “assumed” was accurate?

The lesson to be learned? Never, ever fall for the myth that the scientists working for the State are infallible. Mistakes can and do happen - more often than anyone will admit - and not catching a mistake like this can mean the difference between an acquittal and going to jail.

Update: Download the pdf of the Crime Lab's Report of Urine Test Errors

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Today CMI, the Intoxilyzer manufacturer, faxed a letter to Federal District Court Judge Frank, Magistrate Boylan and Judge Abrams disclosing "that the software that is presently installed in the ... Intoxilyzer 5000EN instruments in service in Minnesota does not ... match the 75_0240 software that was preserved at CMI at the time it was created for use in Minnesota."

CMI admits in the letter that neither CMI nor the State knows the reason for the difference. 

Will ALL tests be suppressed using this software? 

For more information, please read DWI lawyers say Intoxilyzer software code is wrong.

Below is the text of CMI's letter and the PDF of CMI's letter to Judges Abrams, Frank and Boylan.

The Honorable Donovan W. Frank
United States District Court
District of Minnesota
316 North Robert Street
St. Paul, Minnesota 55101

The Honorable Jerome B. Abrams
Scott County Courthouse
200 Fourth Avenue W.
Shakopee, Minnesota 55379

The Honorable Arthur J. Boylan
United States Magistrate Judge
334 Federal Building
316 N. Robert Street
St. Paul, MN 55101

RE: State of Minnesota v. CMlof Kentucky, Inc.
Court File No. 08-CV-603 (DWFIAJB)

In re: Source Code Evidentiary Hearings in Implied Consent Matters
Consolidated File No. 70-CV-09-19459

In re: Source Code Evidentiary Hearings in Criminal Matters
Consolidated File No. 70-CR-09-19749

Dear Judges Frank, Boylan and Abrams:

As the Courts may recall, the Intoxilyzer 5000EN breath-alcohol test instrument contains two
memory chips (EPROMs), which contain software that performs distinct functions within the
instrument. One EPROM, often referred to as the "master," contains software identified as
"1408.62." The other EPROM, sometimes called the "slave" or "side processor," is loaded with
different software, identified as "7502.40" or "75_0240."

In accordance with the July 16, 2009 Consent Judgment and Permanent Injunction, CMI has
been providing Authorized Minnesota litigants access to all Source Code files for the current
version of Intoxilyzer 5000EN software (1408.62 and 75_0240) in both native electronic and
printed, hardbound (redacted) book format.

However, it has recently come to CMI's attention that the software that is presently installed in
the side-processor EPROMs in the Intoxilyzer 5000EN instruments in service in Minnesota does
not identically match the 75 0240 software that was preserved at CMI at the time it was created
for use in Minnesota.

At present, neither CMI nor the State is certain of the cause of this difference, or of its impact, if
any, on the Source Code review currently underway. I assure the Courts that CMI and the State
are working cooperatively and diligently to resolve this issue as quickly as possible.

Very truly yours,

WINTHROP & WEINSTINE, P.A.
William A. McNab
WAM/lm

cc: Counsel of RecordiLiaison Counsel (via e-mail)

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The Minnesota Department of Public Safety (DPS) announced its “2010 DWI Enforcer All-Stars” today and will introduce them before the Minnesota Twins’ baseball game at Target Field. 

The group is comprised of 30 law enforcement officers from the Twin Cities' metro area and Greater Minnesota. The DPS says they were chosen “for outstanding service in enforcement and in prosecution of impaired driving.” 

As I’ve noted previously, the DPS seems concerned more with quantity than with quality of service. According to the Minnesota DPS press release, “Minnesota State Patrol Trooper Jack Tiegs is the state’s Most Valuable Enforcer, leading all law enforcement with 133 DWI arrests in 2009.”

As with previous lists, this list recognizes officers with the greatest number of stops and arrests. This troubles me. The criteria should be based on the quality of the officers’ performance, rather than mere numbers.

A good example of this occurred last week during a hearing in Red Wing, Goodhue County. The arresting officer was very candid in his testimony, admitting to the weaknesses in the case. It was apparent that he felt his job is not solely to lock up people who have been drinking and driving and to take their licenses to drive, but to uphold the constitution. I do not know how the case will turn out for my client, but I as I told the officer after the hearing, he should be commended either way for his professionalism. Unfortunately, not all cops would have testified similarly. Many would have fudged the facts or their testimony to make the case stronger against my client and to make themselves look better.

The majority of Minnesota officers perform their jobs better than expected under harsh conditions. Yet they do so go about their duties putting justice and service to the public first, relegating their own interests second.

These officers are the true ALL-STARS!

They are polite with the public while ensuring that justice is served. These police officers understand their arrest numbers don't ensure public safety. They testify truthfully, and take their jobs seriously. Unfortunately, they go unrecognized. This "honor" by the department of public safety discourages such behavior, while encouraging injustice and promoting further distrust of our valuable peace officers.

The DPS also recognized three prosecutors as part of the 2010 DWI Enforcer All-Stars. While it appears the DPS chose the officers with the greatest number of DWI arrests, it did not reveal the criteria for the prosecutors. My guess is that the DPS did not recognize them for using common sense in exercising their discretion whether to pursue a criminal conviction, license revocation or vehicle forfeiture.

According to the DPS press release, the following were named based on the number of their 2009 arrests:

Twin Cities Police Officer “DWI All-Stars” and the number of 2009 DWI arrests:

·                     Danny Bouavichith, Savage Police Department—53 

·                     Officer Bill Hammes, Coon Rapids Police Department—63

·                     Officer Joshua Hunter, Corcoran Police Department—60

·                     Officer John  Kolar, Shakopee Police Department—87

·                     Officer Scott Langner, Maplewood Police Department—72

·                     Officer Gabe Lee, Blaine Police Department—73

·                     Trooper Eric Micek, State Patrol—106

·                     Trooper Pat Miles, State Patrol—110

·                     Trooper Brian Reu, State Patrol—104  

·                     Officer Santiago Rodriguez, St. Paul Police Department—78

·                     Officer Richard Schwab, South St. Paul Police Department—102

·                     Officer Dan Schyma, Apple Valley Police Department—57

·                     Officer Nic Stevens, Lakeville Police Department—89

·                     Trooper Jack Tiegs, State Patrol—133

·                     Trooper Ben Uzlik, State Patrol—121

Greater Minnesota DWI Enforcer All-Stars and number of 2009 DWI Arrests:

·                     Trooper Scott Barstad, State Patrol—82

·                     Officer Anthony Bermel, Pike Bay Police Department—23

·                     Trooper Garret Bondhus, State Patrol—118 

·                     Deputy Tom Coulter, Blue Earth County Sheriff’s Office—54

·                     Trooper Jason Engeldinger, State Patrol—51

·                     Officer Steve Estey, Virginia Police Department—39   

·                     Deputy Lyan Karger, Beltrami County Sheriff’s Office—80 

·                     Officer Adam Kladivo, Hibbing Police Department—46

·                     Officer Scott Kostohryz, Moorhead Police Department—42  

·                     Officer Brian Martin, Blue Earth County Sheriff’s Office—61

·                     Trooper Lucas McArthur, State Patrol—96

·                     Deputy Dan Mott, Mille Lacs County Sheriff’s Office–53

·                     Officer Ryan Sayre, Hutchinson Police Department—44  

·                     Officer Jean Valere, Rochester Police Department—48 

·                     Officer Darin Vossen, Worthington Police Department—51

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Dan Koewler, a regular contributor to this blog, just received the prestigious “Up and Coming Attorney” Award by Minnesota’s premiere legal publication, Minnesota Lawyer. “I was astounded,” said Koewler in one interview. “Most attorneys who receive this award have two or three times more experience than I have, so it was truly an honor.”

Koewler was selected in large part due to his broad range of experiences (he’s a regular figure in State court, while also practices in Federal court and in front of Minnesota’s Court of Appeals) but also because of his key role in the recent legal challenges to both the Intoxilyzer 5000 and Minnesota’s urine testing regime.

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