The Minnesota Court of Appeals issued a decision this week dealing with urine testing, an issue we’ve blogged about extensively. In State v. Edstrom, the Court said (in dicta) that first void urine testing is generally accepted by forensic toxicologists as a valid measurement for per se intoxication.
Even a casual review of the case, however, demonstrates that this decision carries no real weight. The issues raised in this appeal did not involve “general acceptance” of the urine test (known as the Frye-Mack test); the issue was whether the lower court improperly suppressed the urine test as being “unduly prejudicial” (a standard rule of evidence that is not specific to scientific tests, like Frey-Mack).
Despite the fact that the Frye issue wasn’t even presented or briefed, the court took a walk in the woods and addressed whether evaluation of a urine sample with gas chromatography is generally accepted by the scientific community. Here’s the thing - it is. In fact, in the dozens of cases we have pending around the state we waived the issue of whether the evaluation is generally accepted. Instead, we require the state to meet its burden to demonstrate that the administration of the test is generally accepted.
Because the issue wasn’t properly raised in the lower court, the Edstrom court completely failed to understand the actual issue. The issue, of course, is that every forensic test has two separate but equal components - the collection of the forensic sample, and the subsequent analysis of that forensic sample (as the saying goes, “garbage in = garbage out”). While the Edstrom Court went out of its way to try and rule on an issue that it was not asked to address, it did not even address the full issue in this decision.
It is Minnesota’s method of collecting urine samples that render the results unscientific, not the subsequent analysis. Imagine if every DWI blood draw performed in Minnesota was done after the nurse had used an alcohol swab on the donor’s arm. Would you trust the analysis of any of those samples? Of course not - it’d be downright stupid to do so (especially when its almost as easy to use a non-alcohol swab instead). What’s outrageous is that first void urine testing is a far worse method of sample collection than our alcohol swab example. And that’s not my opinion - that’s the opinion of almost every single peer-reviewed article in existence, alongside the institutional opinions of SOFT, the NRC, NHTSA, and the Borkenstein Institute.
The entire basis for the Court’s determination that first-void urine testing passes the Frye test was one incredibly illogical sentence: “And there is no evidence to suggest that gas headspace chromatography is any less accepted by the scientific community when it is used on a first-void, as opposed to a later-void, urine sample.” Edstrom, page 10.
When we hold a Frye-Mack hearing, we present volumes of evidence that directly contract the above cited one-liner. In fact, no fewer than four major, renowned scientific bodies have made it clear that first void urine testing should not be used to determine a per se level of impairment:
All in all, the Edstrom decision stands for nothing unique, and the holding simply places a rubber stamp on something we already agree about - gas headspace chromatography is a great way to analyze fluid samples. We’ve held numerous Frye hearings where we have made it crystal clear that we are challenging the collection, not the analysis, of the urine samples in question, and despite the holding in Edstrom,we plan on holding even more hearings in the future. We’ll continue to do everything within our power to demonstrate why every forensic scientist (except those employed by the State of Minnesota) reject urine testing.
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Once the groundwork had been laid, we pulled together a truly impressive coalition of defense attorneys to help foot the enormous costs that go into a detailed review of an embedded system like the Intoxiliyzer. And now, finally, after years of preparation and litigation, the evidence we’ve been demanding for years has been presented in open court, and we’ve reached the calm before the storm. 
