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

One problem that most people arrested for DWI will quickly encounter is that Minnesota judges think that they are required to set bail in DWI cases. This means that before you are found guilty - sometimes before you even appear in court - the State will require to you pay them for the privilege of being allowed to go home, go back to work, see your family, etc. So much for “innocent until proven guilty!”

Bail in a DWI case can range up to $12,000 (and can reach $100,000 or more in felony DWI cases). This can be an incredible financial burden for the average citizen, which is why you have the option to pay a bail bondsman. A good bail bondsman will charge you about 10% of the bail amount (e.g. if your bail was set at $6,000, you would pay about $600), and allow you to be on your way - as long as you promise to make all future court appearances.

If you don’t think you can afford bail, there is a second option that is often made available that appears like a good idea, but is actually far inferior to posting bail. Many judges will set bail, and as an alternative order that you go on “pre-trial monitoring.” This typically means that you are locked into an ankle-bracelet to ensure that you don’t use alcohol for the duration of your criminal case. What isn’t made clear to you is that you have to pay for the “privilege” of having this ankle bracelet - typically $10 - $15 per day. Thus, after 60 days, you’ll have paid at least $600; if your case takes longer than four months (very typical) you will have already “paid” the maximum bail amount of $1,200 . . . and you’ll still be wearing that ankle bracelet. And be careful - if the ankle bracelet even thinks you’ve consumed alcohol, it’ll report you, and you’ll end up facing an arrest warrant in the near future.

Whenever it is financially possible, we advise all of our clients to post bail rather than shackle themselves to an ankle bracelet. Posting bail is almost always cheaper in the long run, and you don’t have to worry about false positive readings or other errors that can put you back in jail.

Of course, being a good attorney doesn’t just mean giving advice, it means knowing how to fight for our clients rights. It’s always better to convince a judge not to order any bail at all, rather than have to decide between the lesser of two evils. Our next post will discuss some of the arguments we’ve successfully used in court to make sure that our clients were not saddled with expensive pre-trial bail amounts - the fact that Minnesota’s bail statute is unconstitutional, and the added fact that judges incorrectly apply the statute in a vast majority of cases where it doesn’t even apply.

Part 2 - Adding Insult to Injury: Why Minnesota’s DWI Bail Statute is Unconstitutional.

Part 3 - Adding Insult to Injury: Why Minnesota’s DWI Bail Statute Doesn’t Apply to Your Case

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Today the Court of Appeals issued a decision that clarifies the current scope of Minnesota’s vehicle registration laws. In the case of State v. Carter, the Court held that it is illegal to drive a vehicle on Minnesota roads unless you have renewed your registration - and that you must renew your registration by the end of the month that it expires in.

The confusion arises from the fact that Minnesota law appears to give drivers a ten-day “grace period” to renew their license tabs. The average person, when reading this statute, would likely think that if their tabs expire at the end of August, they would actually have until September 10 to actually renew their registration.

The Court made it clear that this is not the case. The ten-day “grace period” only allows drivers extra time to display the tabs they already purchased. You still have to buy your new tabs by the end of the month that they expire in. If you’ve been putting off renewing your tabs because you thought you had until the 10^th of the next month to do so, think again, and then renew your tabs. If you don’t, you’re just giving law enforcement one more reason to pull you over.

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Among the many decisions recently issued by the Minnesota Court of Appeals was the troubling case of Van Note v. 2007 Pontiac, A09-2311. This case is a perfect example of why our vehicle forfeiture laws are so absurd, and why the first thing you need to do when charged with a DWI is find a knowledgeable attorney.

In the Van Note case, the driver was arrested for 2^nd degree DWI while driving his girlfriend’s vehicle. The driver was not on the title . . . the vehicle was not registered in his name . . . and yet the State immediately seized the vehicle for forfeiture.

The State made a half-hearted effort to notify the actual owner (the driver’s girlfriend) that it had every intention of keeping her 2007 Pontiac G6 (with a bluebook value well over $10,000). Eventually, the innocent owner tried to convince the court to return her vehicle by filing a petition for review. However, because the girlfriend of the driver convicted of a DWI didn’t file the appropriate paperwork within the correct period of time, the Court of Appeals basically told her “tough luck.”

So, because this innocent vehicle owner did not understand the complex laws surrounding vehicle forfeiture, the State gets to sell her vehicle for profit, even though the law requires the State to return the vehicle to her!

This type of situation happens far too often. In the traumatic and often shame-filled period following a DWI arrest, many people do not take the immediate steps they need to in order to preserve their rights. Because we work every day hammering the State on all aspects of a DWI case, we would have immediately recognized that the innocent owner defense applied, and filed a prompt petition for review. In the end, our client should have gotten her vehicle back. Instead, she’s in the market for a new vehicle . . . and out a lot of money.

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One Hennepin County judge wrote in a source code order that it may be malpractice for a lawyer not to seek breath test software.  That remains to be seen and depends primarily on the outcome of our experts' analysis.  Practically speaking, however, the source code coalition has prepared matters to point where it requires little effort from attorneys to take advantage of this issue. 

The upside is obvious -- drivers' DWI breath tests could be thrown out.  There is little down side -- a minimal contribution from each lawyer and a delay necessitated by the review. 

So the question is: is your lawyer a member of the Minnesota Intoxilyzer 5000 Source Code Coalition. 

If not, get another lawyer. 

I've listed of all members below as of today.  In addition to this, all state public defender cases are included. 

A special thanks goes to Pennsylvania attorney, Justin McShane of the McShane Firm, LLC.  Although Justin represents none of the Minnesota litigants, he generously donated a hefty sum in an effort to support the cause.  Justin, recognized as one of the top criminal defense attorneys in the country, probably has more scientific knowledge in the criminal defense arena than any other lawyer.

Once others learn of Justin McShane's leadership here, other lawyers from around the country will soon follow his lead with their kind contributions.

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The common perception among the public is that “you can’t beat a DWI.” We’ve proved that bit of conventional wisdom as dead wrong, time and time again. However, it’s just as frustrating to hear someone claim that they were charged with “test refusal” and that it’s all but impossible to win a test refusal case. The average attorney might not be able to win a test refusal case, but we’re not average attorneys.

Minnesota is one of only a few states that actually make test refusal a crime. So how do you win a test refusal case? We win by knowing the law, knowing your rights and through experience. We recently convinced an Aitkin county judge to dismiss the test refusal charges against our client, and we did it by following these three simple steps.

Know the Law: Minnesota’s Implied Consent Law and criminal test refusal law are confusing and counterintuitive to all but the most experienced attorneys. The average person would be surprised at how many defenses are available to a person who just said “no” when the State attempted to coerce them into submitting to a chemical test.

For example, an officer needs probable cause to arrest you before they can even properly demand that you submit to testing - you can’t “refuse” a test that the police had no right to request. And while the police won’t tell you this, you actually have the RIGHT to refuse a urine or blood test - without consequences. If you refuse to submit to a blood test, the officer MUST offer you a urine test before you can be charged with refusal. In other words, unless you refuse both a urine and a blood test, you’re not guilty of test refusal.

Know your Rights: Everyone in Minnesota has the right to consult with an attorney before deciding whether or not to submit to a test. If your right to counsel is denied by the police, you can’t be found guilty of test refusal. You also have the right to “change your mind.” We’ve successfully defended clients in situations where the officer was too quick to claim that our client “refused,” when in reality our client was ready and willing to submit to testing, and was just nervous.

Rely on Experience: Experience and imagination can get test refusal cases thrown out of court as well. There are powerful arguments to be made that the refusal law violates the basic Constitutional right against self-incrimination, and that the statute itself is so vague and ambiguous (there is no actual, clear cut definition of “refusal” in the criminal context, and civil refusal is also loosely defined) so as to offend the Constitution. Likewise, the Implied Consent advisory that every Minnesota officer reads to every alleged drunk driver actually mis-informs those drivers about the consequences of refusal!

All of these legal strategies can and do result in the dismissal of criminal charges that resulted from an alleged “refusal to test.” If you’ve been charged with test refusal, don’t assume your case is hopeless. There are many defenses available to attorneys who know the law, know your rights, and have the experience to put that knowledge into practice.

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Today, Judge Abrams issued an order extending the timeline for the consolidated Minnesota Intoxilyzer 5000 source code cases.  In his order, the judge set the final hearing to start on December 18, 2010. 

The source code coalition requested this extension about a month ago, due to delays caused by CMI, the manufacturer of the breath test machine. Most troubling was the fact that CMI recently notified the Source Code Coalition that it had provided us with the “wrong” source code. Instead of reviewing the actual source code used in Minnesota, coalition experts had been reviewing different code for nearly two months at CMI’s headquarters in Owensboro, Kentucky. 

If this wasn’t absurd enough, our experts also discovered the state had improperly “burned” the source code onto the Intoxilyzers’ microprocessors.  It appears that in its haste to convict Minnesota drivers, government scientists included unintended machine code on the chips which govern the machines’ testing of Minnesota drivers.  Our experts now have the added task of determining if and how this unintended code affects the validity, reliability and accuracy of DWI breath tests – tests dating all the way back to 2004. 

To date, nearly 3,000 DWI breath test cases have been consolidated by the Minnesota Supreme Court.  Some expect that number to rise to more than 5,000 cases before the end of the year.

Here is Judge Abrams’ Intoxilyzer 5000 DWI Consolidation Order from today.

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The latest numbers are in.  As of August 4, 2010, nearly three thousand cases have been consolidated in Minnesota's consolidated source code challenge.  A total of 3,830 are attempting to consolidate according to Christina LeClaire from the Minnesota Courts. 

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Yesterday a reader posted the following question on our blog:

Allen L. - August 4, 2010 5:04 PM

If the State replaces the Intoxilyzer 5000 with the Datamaster, doesn't this start everything all over again? Requesting the source code. Why doesn't the State just eliminate the breath test machines altogether and strickly go with blood tests?

Attorney Dan Koewler responds:

Scientifically, it would make perfect sense to discard breath testing altogether, and rely strictly on blood sample testing. Breath testing has numerous problems completely independent of possible software errors. That being said, there is no way that the State would discard such an “easy” test method just because of a few measly scientific concerns. Remember, the State measures its success rate by how many convictions it can rack up, and it wants those convictions as fast as possible.

Additionally, National Patent (the manufacturer of the Datamaster) is a drastically different creature than CMI (the manufacturer of the Intoxilyzer). Datamaster has a track record of actually working with defense attorneys, rather than stonewalling them. In fact, we already know that their source code is available – for about $250, they’ll put the code on a disk and send it directly to us. Compare that attitude with CMI, where it took four years of litigation and hundreds of thousands of dollars just to get a chance for our experts review some of the source code, in a remote location, under some pretty ridiculous terms.

Given National Patent’s history of being rather transparent, there likely won’t be much to gain by a protracted source code challenge. The real challenges will remain with how the State chooses to implement the Datamaster; our State has spent years pretending that its breath test machines were flawless, with the full support of CMI. With National Patent, I expect the State will have to find better explanations for its failure to have a regular maintenance schedule for its machines, among numerous other scientific safeguards that have been ignored with the use of the Intoxilyzer.

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Yesterday, the Minnesota Court of Appeals issued an incredibly troubling decision in the case of State v. McIlraith. In that case, the defendant was arrested for boating while intoxicated. He took an Intoxilyzer test that reported an alcohol concentration over a .08. He immediately attempted to exercise his right to have an independent test (we’ve won numerous cases after having our clients obtain an independent test). Six hours after being arrested, the defendant was finally allowed to submit a urine sample for independent analysis.

The defendant’s attorney successfully suppressed the Intoxilyzer test result, which usually results in a victory. However, the State made a motion to use the Defendant’s own independent test against him! The judge agreed that this was legal, and the Defendant suddenly found himself being prosecuted by evidence that he himself had obtained.

There is a lot about this case that is troubling. I won’t even get into the absurdity of convicting someone of boating above a .08 alcohol concentration based on a urine test taken six hours after driving. What I do want to point out is that the Court, in upholding the admission of a defendant’s independent test against the defendant, has turned independent testing into a double-edged sword.

We routinely tell all our clients to get an independent test - sometimes, it’s the only way to challenge the validity and reliability of the “State’s test.” However, with this new ruling, the Court has made it acceptable for the State to use our own investigative work against our own clients. Now, if we try to use an independent test result to question the validity of the State’s test, the State gets a second bite at the apple. This seems to directly violate all sorts of bedrock Due Process principles: the right to present a complete defense, attorney-client privilege, the statutory right to obtain an independent test, and half a dozen others. Again, a very disturbing decision.

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In a totally unsurprising about face, the State of Minnesota announced that it will soon replace every Intoxilyzer 5000 in Minnesota with a machine, the “Datamaster”, manufactured by National Patent Analytical Systems.

The State’s decision to give over $1.5 million dollars to a company other than CMI, Inc. of Kentucky (the manufacturer of the Intoxilyzer) is hardly surprising to us, but is an interesting decision that speaks volumes about the State’s lack of faith in the Intoxilyzer machine.

The State has repeatedly claimed that it has absolute faith in the accuracy, validity, and reliability of the Intoxilyzer 5000. However, it’s difficult to believe these claims when the State made the clear decision to abandon the Intoxilyzer altogether (they could have purchased the “state of the art” Intoxilyzer 8000).

Check back soon for more information.

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"To: Coalition Members,

 The State has requested discovery of all independent alcohol tests taken in conjunction with Intoxilyer tests at issue in the consolidated source code matter. 

 While the coalition opposes this request, we will need them in the event Judge Abrams orders the coalition to turn them over to the state as part of either the consolidated civil implied consent cases or the consolidated criminal cases.

Please send any independent test results taken in your cases and the corresponding Intoxilyzer test result to Liason Counsel Lee Orwig,  by email, fax or mail:

3800 American Blvd. W.

Suite 1590

Bloomington, MN 55431

fax:  952-224-4840

(952) 844-3333: direct

lorwig@halbergdefense.com

You may contact Lee, me or the other lead counsel with any questions. "

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