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

In this final chapter in our three part series regarding bail, we’re going to debunk the common myth that Minnesota judges are required by law to set bail in DWI cases. We’ve already explained what you need to consider when you’re ordered to post bail, and analyzed why Minnesota’s bail statute is largely unconstitutional.

Unfortunately, few judges are willing to put their own necks on the line and completely ignore Minnesota’s DWI bail laws. However, many judges will listen to (and agree with) the argument that the bail statute itself does not even apply to many DWI defendants. I’ve used this argument many times in a situation where the court was going to charge my client $12,000 bail, and instead chose to release him or her without requiring any bail.

The DWI maximum bail statute defines when maximum bail is required. It supposedly requires maximum bail ($12,000) in all cases where a defendant is charged with second degree DWI (a DWI with two aggravating factors), whenever a test result reports an alcohol concentration at or above .20, or whenever someone under the age of 16 is in the vehicle. Other situations are also covered, such as when someone under the age of 19 is charged with third degree DWI, or when someone was caught driving with a canceled driver’s license.

The statute supposedly “requires” that anyone charged with a DWI under these situations be arrested immediately, and held until their first court appearance. This is the key - the requirement that these offenders be both arrested and held in custody. Put another way, if the officer does not have an offender held in custody until their first court appearance, the maximum bail statute, by its own terms, does not apply.

This situation comes into play all the time, especially in blood or urine test cases. These tests typically take at least a month to complete, so there is rarely a basis to hold someone in custody until their first court appearance. What happens instead is that the person is notified, a month or more after their arrest, that their test result came back above the legal limit. Then, overzealous prosecutors issue an arrest warrant, and expect people to post $12,000 bail long after they had already been released from custody!

It sounds absurd, but it happens, it happens regularly, and it happens in situations where defense attorneys should know better. Time and time again potential clients call our office, upset that they were forced to post thousands of dollars in bail after they had already been released from custody. It’s frustrating, because if we had been involved earlier, we likely could have prevented any bail from being ordered at all. All it takes is a careful argument to the judge, explaining why the maximum bail statute doesn’t cover situations where someone has already been released from custody!

If you’ve been arrested for DWI, and are awaiting the results of a blood or urine test, you need an attorney before, not after, the test results come back. Waiting will often be an expensive mistake - and a mistake that, with a little legal experience, can be completely avoided.

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Earlier this year our series “Freedom Through Independence” told of the benefits of re-testing the state’s alcohol samples in DWI cases.

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

Part 2: Erroneous DWI Blood Test Results

Part 3: Erroneous DWI Urine Test Results

Part 4: Erroneous DWI Intoxilyzer 5000 Breath Test Results

Our “Freedom Through Independence” series chronicled our ability to use retested samples to win DWI cases for our clients. Since then, the government has repeatedly thrown in the towel and dismissed our DWI cases whenever our retest has contradicted the state’s alcohol test result. After publishing our blog series, more and more lawyers followed our advice and began retesting DWI blood and urine samples. 

As a result, the state faced many more cases where the state’s DWI test results were contested, forcing the government to change its tactics. Now, the government is actually trying to fight back in cases where our independent retest refutes the state’s own test. 

The Judge Rules: Two Different Test Results = State Loss

The state is now finding out the hard way that if they try to fight against retested samples, the end result is no different than if it had just dismissed its case from the outset. Last week a judge rendered the first written decision in years on this issue, and clearly held that if a retested sample produces different results than the state’s test, the state is going to lose.

In that case, the driver submitted to a urine sample after being arrested for DWI. The officer collected the sample, and submitted it to the Minnesota Bureau of Criminal Apprehension ("BCA") for analysis. The BCA’s analysis resulted in an alcohol concentration of 0.08. 

Several months after the BCA performed its analysis, the driver’s frozen sample was independently analyzed by Regions Hospital. Regions Hospital’s analysis resulted in an alcohol concentration of .06. The difference between .08 and .06 is huge, for two reasons. First, a difference of .02 between the samples proves that urine testing fails one of the main tenets of the scientific method: the ability to consistently reproduce statistically reliable results. Second, one test is above the legal limit, while the other is clearly below that limit.

A nervous BCA employee testified, offering several possible explanations for the dramatically different test results:

1)            A difference in testing methods between the BCA and Regions Hospital (The BCA does not contest Regions Hospital’s independent lab results, and in fact has approved its methods and procedures for testing urine for alcohol concentration.) 

2)            Evidence was destroyed when the BCA froze the urine sample after testing; and/or,

3)            An improper seal on the sample container permitted ethanol to escape the container.

All these “explanations” make the BCA look bad, but the driver’s attorney noted a fourth, even more troubling possibility; that the analysis performed by the BCA was inaccurate and the analysis performed by Regions Hospital was accurate.

The judge wrote in his order:

In this case the Court has been presented with two equally valid samples with disparate results. One result supports the revocation of the Petitioner's license while the other does not.

…

The Commissioner, however, bears the burden of proving it is more likely than not that the Petitioner was operating a motor vehicle with an alcohol concentration of 0.08 or more. The evidence presented is not sufficient to overcome this burden. It is equally possible the Petitioner had an alcohol concentration of 0.08 or 0.06767. The Commissioner has therefore failed to prove the requisite alcohol concentration justifying revocation of the Petitioner's license.

The judge correctly ordered the government reinstate the driver’s license and remove any reference to the license revocation from his driving record. 

More Questions:

This case raises as many questions as it answers. Had this been a criminal case, what would a jury have decided? We think that a court should not even permit the state to present this evidence to a jury, since no reasonable juror could find the state could meet its burden of proof beyond a reasonable doubt.

This raises other questions as well, such as “how long will the BCA continue to freeze DWI test samples after testing?” “What are the differences between the BCA and Regions’ testing methods?” and “Whose testing method is more accurate?”

And of course, all of these questions lead directly to the one question I’ve been asking for years. It’s a simple question, and yet it has gone unanswered for far too long.  

Why does our state remain as one of the only places in the world that still use urine testing?

Congratulations to defense attorney, Ed Cohen, for his work against the Office of the Attorney General in the implied consent case.

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 As we blogged about in part one of this three-part series on bail arguments, most Minnesota judges think that they are required by law to set bail in DWI cases. It turns out that the majority of people arrested for DWI are supposedly required to pay the State thousands of dollars for the privilege of being allowed to go home, go back to work, see their families, and try to bring some semblance of normalcy to their lives.

Generally, bail serves an important purpose.  It ensures that criminal defendants who may be likely to flee prosecution have an incentive to show up for court. However, determining who is and is not likely to flee is a very fact specific inquiry, and can differ from person to person. Whether a specific person is a risk to “public safety” is another reason to require bail - another factor that depends on the character and background of each individual.

One purpose bail can not serve is to “punish” someone before trial. Bail only exists to ensure that defendant’s appear in court, while allowing them to continue to lead their lives until their court case is resolved. This is why every Minnesotan has a constitutional right under Article 1, Section 7 to post bail, and cannot be held “without bail.”

This is one of two reasons why Minnesota’s DWI Bail Statute is unconstitutional.  It assumes that every person arrested for DWI is a flight risk, and automatically requires bail for all but some types of first time offenders. For example, if you are arrested for DWI and have one prior offense within the past ten years, an alcohol concentration above a .20, or someone in your vehicle under the age of 16, the law states that you must post $12,000 bail in order to be released without other conditions.  It is absurd to assume that anyone who fits into these categories is automatically a flight risk, and then arbitrarily stating that $12,000 will eliminate the risk of flight.

The other reason why this statute is unconstitutional is that the legislature simply doesn’t have the authority to pass this type of law - our Constitution is one that is based upon the separation of powers.  Bail is an area that is constitutionally delegated to the judicial branch; thus, regulation of bail can be done through the judicially-approved Rules of Criminal Procedure, but not through legislatively passed statutes.  The Rules of Criminal Procedure make it clear that a judge should presume each defendant can be trusted to appear, and does not need bail assigned. The legislature simply does not have the power under our Constitution to pass a law that overrides that presumption and replaces it with the command that every defendant post bail.

Unless there is a strategic reason not to, we raise these arguments at every bail hearing. That bail hearing is often our first chance to “go to bat” for our clients, and is our only opportunity to convince the court not to punish our client with excessive and unnecessary bail while they are still presumed innocent.

Up next in our three part bail series: Why Minnesota’s DWI bail statute simply doesn’t apply in most cases - regardless of whether it is actually constitutional or not. 

Part 1 - Adding Insult to Injury: Should You Post Bail When You’re Charged with a DWI?

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

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I’ve blogged about the unscientific nature of DWI urine testing for years and years. Being at the forefront of defense challenges to urine testing has brought numerous successes for our clients, but we’ve never had a Minnesota Appellate court rule with finality that urine tests are inadmissible. Change is in the air, however, and the ruling from the Minnesota Supreme Court yesterday will likely change our position for the better.

DWI Urine Testing: Rejected by Scientists

The primary issue with urine tests is that the scientific community simply does not accept urine testing in DWI cases as a valid means of determining alcohol concentration. Most states don’t use it at all. Fewer than a dozen periodically use the method, but don’t test the “first void.” It appears Minnesota stands alone as the only state to utilize solely “first void” testing.

A brief refresher for those new to our blog: Alcohol collects in the bladder and does not “burn off” like alcohol in the blood or breath. Instead, it remains in the bladder until voided. Without voiding the bladder and waiting 20-30 minutes before collecting a “second void,” there is no relationship between the amount of alcohol in the urine and the amount of alcohol in the blood. In fact, Minnesota BCA scientists concede that under “first void” testing, a person may have no alcohol in the blood, but be over the legal limit by urine.

Frye-Mack Standard

Under Minnesota law, before a scientific method or test can be admitted as evidence, a judge must find it to be “generally accepted by the relevant scientific community.” The Minnesota Supreme Court held in 2002 (State v. Roman Nose) that trial courts must grant motions for a Frye hearing unless and until the Supreme Court upholds a lower court finding of general acceptance for the specific scientific testing or method (for those unfamiliar with the Frye-Mack standard, check out our previous post).

We continually present scholarly articles, learned treatises and expert opinion from forensic toxicologists proving that urine testing is not “generally accepted in the scientific community.” If the judge listens to the evidence, this can and will lead to suppression of the test result. However, because the State has no real evidence supporting the use of urine tests, they use a different argument altogether - they try to claim that the Frye-Mack “general acceptance” test doesn’t even apply to urine tests, so there is no need to even prove general acceptance. Since urine testing for alcohol concentration was implemented nearly a century ago, many courts have rejected our motion for a Frye hearing simply because they believed that urine testing is not a “novel” test, and doesn’t need to be scrutinized. That’s about to change . . .

Minnesota Supreme Court Clarifies When Courts are Required to hold Frye Hearings

The Minnesota Supreme Court issued an opinion yesterday that rejected the State’s “it’s not novel science if it’s old science” argument this week in State v. Hull.

In State v. Hull, the jury found Jeremy Hull guilty of murder. Before the trial, the defense challenged whether fingerprint evidence and handwriting analysis was admissible under the Frye “general acceptance” standard. The trial court refused to hold a Frye-Mack hearing on the scientific validity of the fingerprint evidence, concluding (without reviewing any evidence) that “fingerprints have been generally accepted as scientifically reliable for a long time.” Similarly, it denied the motion on the handwriting analysis by summarily finding, it too, is generally accepted, again without a hearing.

Analyzing whether the trial court correctly rejected a defense motion for a Frye hearing of fingerprint evidence, Justice Paul Anderson wrote,

“[L]engthy use of a method by law enforcement, and even lengthy unquestioning acceptance by courts, does not [by itself] exempt expert evidence from scrutiny under the first prong of Frye-Mack….”

Justice Anderson also cited with approval a report issued by the National Research Counsel of the National Academies (NRC), which stated, “In a number of forensic science disciplines, forensic science professionals have yet to establish either the validity of their approach or the accuracy of their conclusions, and the courts have been utterly ineffective in addressing this problem.”                          

Justice Meyer filed a concurring opinion, “because [precisely defining the Frye-Mack standard] has wide-ranging implications for future cases, we do a disservice to district courts and the administration of criminal justice in this state by declining to decide the issue on its merits” (she said this because the majority refused to actually state a rule, holding that the evidence against Hull was so overwhelming so as to make the issue irrelevant).

Justice Meyer went on to state, “The NRC Report states in no uncertain terms that the state and federal courts’ longstanding acceptance of traditional forensic science expert opinions is simply not supported by good science.”

She concluded by noting that, “in order to present expert conclusions based on these methods to a jury, the proponent of the evidence must first meet its burden under the first prong of Frye-Mack to show that its forensic evidence methods produce accurate and reliable results. The district court erred in this case when it relieved the State of that burden.” (Emphasis added).

“But We’ve Always Done It That Way” Falls Short

The Court’s message is crystal clear: The State can no longer rely on the “long-standing use” of a scientific method to prevent a Frye hearing. Longevity alone is insufficient; the State can’t be permitted to “grandfather” junk science past the rigorous safeguards of the Frye-Mack test. Instead, the Supreme Court has again made it clear that the government must prove in a Frye hearing that a test if generally accepted by the relevant scientific community.

So how does this affect urine testing? Many courts have succumbed to prosecutors’ argument, “But we’ve always done it that way” in denying motions for a Frye hearing. Thanks to the Hull case, I’m hoping this will also bring an end to another government adage, “Good enough for government work” which has allowed urine testing to be used against innocent citizens for years.

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Urine testing has no place in determining whether or not a state’s DWI laws have been violated. Despite near universal rejection of urine specimens for DWI enforcement, the folks at the Minnesota Bureau of Criminal Apprehension (BCA) stand nearly alone in continuing to use this junk science to put people behind bars.

Our firm has been at the forefront of the fight against urine tests, demonstrating again and again exactly why urine testing has no place when it comes to enforcing DWI laws. In every case we present decades of scholarly articles and learned treatises rejecting urine testing. 

Because of our success, the BCA has come up with some new “evidence” in an effort to build support for DWI urine testing in Minnesota. Last week the state presented a single piece of paper drafted by one BCA scientist that we’ve lovingly dubbed the “Urge to Purge” memorandum. This memorandum attempts to overcome the obvious fact that when you are given a urine test, the sample demonstrates a “pooled” or average alcohol concentration, and not your actual alcohol concentration from the time you were driving. Basically, a urine test can report – at best – an average alcohol concentration since the subject had last voided his or her bladder.

The “Urge to Purge” memorandum tries to imply that the diuretic effect of alcohol (the well-known fact that drinking makes you have to pee) means that anyone who is drinking is also peeing non-stop, and so any urine sample will be “accurate enough.” What the data doesn’t take into account is simple science; specifically, the well-documented fact that the alcohol only has a diuretic effect during the absorptive phase of alcohol (which stops about an hour after drinking) and not during the post-adsorptive phase (after the alcohol has been fully absorbed).

It appears the state seeks to use their new “science” to refute the well-founded legal position that the police need a search warrant to force a urine test. Because alcohol doesn’t dissipate in the bladder, there is no immediate need to obtain a sample, as in the case of breath tests. The state’s “urge to purge” memorandum implies that a person will wet their pants before a cop can get a warrant. There is no science to back up the state’s claim.

To make a long-story short, the “Urge to Purge” memorandum that the BCA is now touting is about as relevant to urine testing as a chart explaining how blondes have more fun. It just doesn’t matter.

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The Chief Justice for the Supreme Court penned an incredibly articulate and devastating attack against Minnesota’s test refusal law today. In the case of State v. Larson, the Court held that:

"Larson also argues that his due process right to a fair trial was violated because the State was allowed to introduce evidence that he had refused to submit to voluntary . . . testing, and that the State used his refusal as evidence of his guilt. It is uncontested that Larson refused to allow the police to take a . . . sample . . . until the police produced a warrant. At trial, the district court ruled, over Larson’s objection, that Larson’s refusal to submit voluntarily to . . . testing could come before the jury. The court acknowledged that, while Larson “had that right to refuse to cooperate,” he did not see that “any constitutional rights of [Larson’s] are violated by that fact being told to the jury.” This ruling was erroneous. See Jones, 753 N.W.2d at 687 (“It is a violation of the defendant’s right to due process for a prosecutor to comment on a defendant’s failure to consent to a warrantless search.”)." (Emphasis added)

I’ve never read a more damning attack against Minnesota’s DWI test refusal law.

There is one problem: the above quote doesn’t refer to blood, urine, or breath samples for alcohol concentration - it refers to blood samples for DNA testing. Thus, the legal conclusion that our current test refusal law is unconstitutional can be craftily avoided by simply invoking the DWI exception to the Constitution.

We’ll be bringing the Larson case to the attention of every judge that is presiding over a test refusal case, and it will be very, very interesting to see how they can “distinguish” (legalese for “ignore) this case from the line of cases mysteriously holding that charging someone for test refusal is constitutional.

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