The briefs are in! Today both the state and drivers submitted written closing arguments to Judge Abrams in the consolidated breath test case. The Court will render its decision within 90 days.
Download the State’s Source Code Argument and the Drivers’ Source Code Argument.
Check back soon for feedback about the state’s arguments
We’ve previously blogged about the serious problems that arise when the government tries to enforce its DWI laws with urine testing. Despite these known problems, Minnesota continues to use discredited urine tests. Now, they are starting to take things one step further - using a new, error-prone method of analyzing urine samples to “prove” that someone recently consumed alcohol.
The science behind this post is a little complicated, but the results are easy to explain: scientists are claiming that they can test a urine sample for the presence of ethyl glucuronide (EtG), which is basically a “byproduct” of alcohol consumption - a byproduct that can be detected days after someone consumed any alcohol.
Probation officers and prosecutors alike love this new type of urine test- most people on probation are specifically ordered to abstain from alcohol, and any consumed alcohol has usually left the system before someone can be brought in for a random urinalysis test. With these new tests for EtG, the government can find out if someone drank alcohol three days ago, instead of only three hours ago.
Sounds fa
ir, right? WRONG. We’ve noticed more and more EtG tests being used and spent a great deal of time studying the science behind the testing. We have discovered just how unreliable these tests are. If someone “fails” a test for EtG, it may mean that they consumed alcohol sometime in the previous few days . . . but it can also mean that they used a common hand-sanitizer sometime in the previous few days. Non-alcoholic beer and mouthwash can cause false positive results. So can consuming bananas. Even sauerkraut can generate EtG in a urine sample.
The mes
sage is clear: if you’re prohibited from consuming alcohol as a condition of probation, be sure to avoid sauerkraut and bananas. The State has a new test they may ask you to perform, and your craving for fruit and cabbage may end up putting you behind bars.
For years now, we’ve blogged about problems with the Intoxilyzer 5000 - and one problem in particular. In a typical scenario, a driver is arrested for DWI and told that they have to submit to a breath test. They try - and try, and try - but the machine will not accept the sample, and ultimately reports a “deficient sample.” These people are charged with the crime of Test Refusal (always a gross-misdemeanor, sometimes a felony).
In court, the arresting officer will usually say that the driver was trying to “fool the machine” by blowing around the straw, blocking the straw with their tongue, or not actually blowing any air. This may be true in some cases, but in our experience, its more likely that the driver WAS trying to give a sample - and the machine still rejected it, for reasons unknown.
The question is “who should the judge trust?” The arresting officer, the driver, or the machine? The answer matters, because if the court chooses to trust the officer, the driver is going to lose; if the judge decides to “trust” the machine, it means that the defense needs to have the opportunity to examine that machine’s source code - and the driver can win.
We recently won a huge case at the Court of Appeals that helps settle the matter. In Hansen v. Commissioner of Public Safety, we convinced the Court that it takes more than the testimony of the arresting officer to convict someone of test refusal - the machine itself needs to be analyzed. This is a potentially huge win for our clients and for anyone else charged with “refusal by conduct.” It means that the Courts are finally beginning to accept what we’ve said all along - the Intoxilyzer is not a perfect machine, and one area where it is prone to failure is when it deems otherwise-valid samples “deficient” for unknown reasons.
Minne
sota is one of few states that actually make it a crime to refuse to submit to chemical testing (most simply to increase the duration of any driver’s license revocation). This has huge constitutional implications - such as violating a driver’s Fifth Amendment right against Self-Incrimination - but can also be misleading.
Despite what every Minnesota police officer will tell you, it may NOT be a crime to refuse to submit to a blood test after you’ve been arrested for DWI.
In fact, if you do refuse to submit to a blood test, and the government charges you with test refusal, we might actually be able to get the charges dismissed. That’s because Minnesota law specifically prohibits drivers from being punished for refusing to submit to a blood or urine test unless another test was also offered.
If an arresting officer told you that you’d be charged with test refusal if you did not submit to a blood sample, he or she was not telling you the whole story. If you were charged with test refusal without being offered a blood test AND either a urine or breath test, you’ve got a very good chance of outright winning your case.
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