Breaking News: Review Granted in Consolidated Source Code Litigation

Posted on April 29, 2011 by Dan Koewler

The thousands of consolidated DWI cases stemming from tests on the Intoxilyzer 5000EN, previously heard by Judge Abrams in the First Judicial District, have officially been accepted for review by the Minnesota Court of Appeals.

In an Order filed April 28, 2011, the Court of Appeals held that there were “compelling reasons” to grant review of Judge Abrams’ Order. While this case might ultimately be forwarded directly to the Minnesota Supreme Court, we are currently preparing to present our arguments to the Court of Appeals.

 

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Going Into Effect July 1: The Law of Unintended Consequences

Posted on April 29, 2011 by Chuck Ramsay

Minnesota’s expansion of ignition interlock devices this summer may cause more problems than state officials anticipated. You might remember our previous blog about the earlier stages of this program, but now the “pilot” project is official. As of July 1, 2011, first time DWI arrestees may be required to install the devices in their vehicles in order to get their drivers’ licenses back in a reasonable period of time.

State officials might see the interlock device as a panacea for repeat DWI offenders (see below), but what I see are all of the potential problems that will arise. 

Minnesota Lawyer’s front page story this week, headlined, “DWI Law Changes Worry Lawyers,” cited Bill Lemons, the traffic safety resource prosecutor from the Minnesota County Attorneys Association, as saying,

[T]he program helps offenders get their lives back on track sooner because they can drive right away, and the ignition interlocks will mean safer roads for everyone else. In addition, it ensures offenders will drive legally instead of driving with a revoked license.

“We would like to see all [of those offenders] get the ignition interlock,” said Lemons. “The research shows that the program is only effective when the device is in the car. Absent that behavior changing program, the likelihood to re-offend goes right back to where it was.”

Defense attorneys paint a less-rosy picture. Jeff Sheridan, a criminal defense attorney from Eagan, told the paper the law fails to take into account that not every other state has an ignition interlock program. 

“What about the guy who is up here on business and gets arrested and his state doesn’t do interlock?” Sheridan said. “Is his home state is required to enforce the revocation? Is he supposed to put [a device] on his car anyway?

“I encourage the interlock device [with my clients] but assuming that there are going to be no problems is a bit of a step,” he said.

Kelly Keegan, an Anoka defense attorney, pointed out other limitations to the program, including the hefty price of participating - costs that may prevent many from using the device at all.

Minnesota Lawyer asked me about a bill pending before the legislature which would significantly increase the driver’s license revocation period for repeat offenders and for those with an alcohol concentration .16 or more.  As I told the weekly publication, the legislature’s tinkering will have unintended consequences. As just one example, the current version of the bill acts as an incentive for drivers to refuse testing, which is something that State undoubtedly wants to avoid.

Attorney Mike Bryant, a fellow blogger, brought up other interesting questions earlier this week, including:                   

                        -How well do these ignition interlock devices actually work?

-Who gets these government contracts? As Mike writes, “It can be a nice money making monopoly for some companies.”

I will be watching this issue very closely, including how other states have handled the problems that go hand in hand with ignition interlock. But for now, I agree with Minnesota Lawyer reporter Patrick Thornton, “Come this summer, DWI defense lawyers are going to be busy.”

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DWI Urine Testing Under Review by Supreme Court.

Posted on April 28, 2011 by Dan Koewler

We were probably the first attorneys in Minnesota to start bringing Frye-Mack challenges against the practice of using urine tests to prosecute drivers for DWI.  

Now, one of the first cases where we raised this argument has finally made its way to the Minnesota Supreme Court, which just accepted review of our case, State v. Boeder.

This is part of a clear trend - the Minnesota Supreme Court seems ready and willing to address head-on the basic fact that scientists worldwide reject urine testing for DWI cases. Stay tuned . . . things are about to get even more interesting.

 

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Minnesota Intoxilyzer Source Code Victory: Why Deficient Samples Must Be Dismissed.

Posted on April 21, 2011 by Chuck Ramsay

Judge Abrams ruled at the conclusion of the consolidated source code hearings that the Intoxilyzer cannot reliably determine deficient samples. Unlike most Intoxilyzer test results, which were deemed admissible, Judge Abrams ruled that test results reporting a sample as “deficient” should not be allowed into evidence. Specifically, he stated that:

In cases in which the Intoxilyzer 5000EN ... reported a “Deficient Sample,” the Source Code of the instrument does impact the reliability, solely, of this result. Evidence of such cases of a “Deficient Sample” test report should not be allowed unless other evidence exists which provides reasons and/or observations of testing which supports the sample being deficient.

Order, para. 2 (our emphasis).

Judge Abrams explicitly found that the Intoxilyzer cannot properly determine a deficient sample - and therefore does not support a charge of test refusal. In the order, it appears that the door has been left open for the government to bolster this faulty test result with “other evidence” that the test subject “refused” to provide a valid sample. However, the actual state of the law in Minnesota says the opposite - under Minnesota law, only a breath test machine that determines a deficient sample, not the officer.

Minnesota’s DWI laws make it a crime to “refuse” alcohol testing, which is defined as a “failure of a person to provide two separate, adequate breath samples in the proper sequence . . .” Minn.Stat. § 169A.51, subd. 5(c) (2010). A sample is defined as “adequate” if, “the instrument analyzes the sample and does not indicate the sample is deficient.” Id., subd. 5(b). A plain reading of these statutes means that only the Intoxilyzer test result, and not the opinions of an officer, determine if a person actually “refused” to provide an adequate sample.

We know, because we recently won on this issue in front of the Minnesota Court of Appeals, in Hansen v. Comm’r of Pub. Safety. In Hansen (a “deficient sample” case) the trial court judge ruled that the source code was irrelevant, because “other evidence” besides the Intoxilyzer test result proved that our client refused to provide a valid sample. We disagreed, and appealed. The Court of Appeals reversed the trial judge’s decision in favor of our client.

In Hansen, the Minnesota Court of Appeals said,

We have held that an identically worded statute “makes it clear that the Intoxilyzer, not the police officer, is to determine the adequacy of a breath sample.” Genia v. Comm'r of Pub. Safety, 382 N.W.2d 284, 286 (Minn.App.1986). And we found no statutory authority that, once the breath test began, “a refusal can be based on an officer's conclusion that a driver is not making a good-faith effort to provide an adequate sample.” Id.

Hansen at *4.

So, it’s clear that only a breath test machine (for now, the Intoxilyzer 5000EN) can determine whether a breath sample is deficient. Any officer’s subjective opinions are irrelevant. What this means is that the government can only prove a “refusal by conduct” charge by presenting a test result that lists the sample as “deficient.” And as long as the State continues to use the outdated, broken and error-prone Intoxilyzer, any “deficient” result cannot be admitted into evidence.

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Minnesota Continues to Utilize Broken Intoxilyzer

Posted on April 20, 2011 by Chuck Ramsay

Judge Abrams noted that Minnesota officials and the BCA have been aware of the broken Intoxilyzer since at least 2006, but have refused to install corrected software.

The slope detection software … does reject under somecircumstances samples which are valid. … In situations where this result has been reported due to slope acceptance criteria in the 240 version of the software, the BCA could have implemented corrective software but chose not to update the instruments. This conclusion is confirmed by the testimony of the BCA witnesses.

 

Now that Judge Abrams has made official findings that the Intoxilyzer 5000 software does not work properly and that the BCA has a fix to correct the problem, it would be reasonable to believe we would stop using these broken machines for DWI alcohol testing. 

[T]he BCA was aware from the fall of 2006 onward that a change in the Source Code was made that caused, under some circumstances, previously acceptable breath samples to be rejected. This software, version 240, continues to be used with knowledge of this problem and without change or correction by the BCA.

Surprisingly, Minnesota continues to use these fatally flawed machines to revoke drivers’ licenses and put innocent people in jail. 

Why?

Perhaps the answer lies in the arrogance of state officials responsible for the use of the Intoxilyzer 5000EN. According to Judge Abrams:

There is a general perception that perfection and flawless operation is present in the Intoxilyzer and its test results. Those responsible for the operation and maintenance of the device have been defensive and at times outright hostile to the suggestion that problems may exist….

Luckily, we now have the evidence we need to suppress every Intoxilyzer test that reports a “deficient sample,” no matter how long the State continues to use this broken machine. Be sure to stick around for tomorrow’s blog, where we detail how every case where the Intoxilyzer reported a deficient sample should be dismissed . . . and why.

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Intoxilyzer Source Code Victory: Judge Rules Machine Cannot Reliably Determine Deficient Samples.

Posted on April 19, 2011 by Chuck Ramsay

Minnesota continues to use Intoxilyzer 5000 Despite Hundreds of Defective Breath Cases Annually.

Last month, Judge Abrams issued his consolidated Intoxilyzer source code order. In a case directly affecting more than 4,000 Minnesota DWIs – and thousands more indirectly – the court decided that the Intoxilyzer, while suffering from many defects, is not so flawed as to prevent the test results from being admitted into evidence in most cases. In other words, the test results are “close enough for government work,” but drivers’ attorneys are still free to present evidence attacking the results (even this conclusion is currently under appeal).

Few people realize that Judge Abrams did not find that all test results are admissible. He actually highlighted the fatal errors in the source code that wrongly reject perfectly valid samples, stating that, “In cases in which the Intoxilyzer 5000EN … reported a ‘Deficient Sample,’ the Source Code of the instrument does impact the reliability, solely, of this result. Evidence in such cases of a ‘Deficient Sample’ test report should not be allowed ….”

In the order’s Conclusion, the court indicates the machine reports a deficient sample even when the sample is not actually deficient.

There is one limited situation, as discussed earlier, in which the labeling of a sample as “deficient” arises from multiple causes. At least one of these causes is a consequence of the Source Code's instructions to the microprocessors and has little, if anything, to do with whether the sample is actually deficient.

Under my cross examination, BCA experts were forced to openly admit that the current version of the source code has more than three times the number of deficient samples as the prior version. According to the BCA’s own data, hundreds of drivers each year who provide a sample greater than 1.1 liters are deemed to have provided a deficient sample!

And “deficient samples” are almost always worse than outright failing the breath test. Under Minnesota law, it is a crime to refuse to submit to DWI alcohol testing. The statutes define test refusal as when a machine determines a driver has given a “deficient sample”. We have previously analyzed the crime of DWI test refusal, explaining how it is treated much more harshly than having an alcohol concentration of .08 or more.

We’ve been striving for years to bring these issues into the public spotlight. Now, with Judge Abrams’ order, we finally have the evidence we need to successfully debunk the myth that every driver who provided a “deficient sample” was somehow at fault.

Of course, now that we’ve unmasked these fatal errors in the source code, the State will stop using the Intoxilyzer . . . right? If only life were that simple: stay tuned for tomorrow’s blog, explaining just how long the State has known about these errors, and why they plan to keep on using the broken Intoxilyzer, regardless of its known flaws.

Then be sure  to check back on Thursday, when we will discuss exactly why Judge Abrams' order should results in the dismissal of almost any case where a "deficient sample" was reported.

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Not So Fast! Will Minnesota Supreme Court Stop the Flow of Unscientific DWI Urine Alcohol Tests?

Posted on April 13, 2011 by Chuck Ramsay

Many believed challenges to DWI alcohol urine testing were finished last December after the Minnesota Court of Appeals issued a series of decisions. Recent orders issued by the Minnesota Supreme Court, however, provide hope for those accused of DWI based on a urine test.

In State v. Edstrom – a case with a shaky and dubious procedural posture – the Minnesota Court of Appeals affirmed a lower court’s finding that DWI urine alcohol testing is generally accepted by the scientific community. 

The following week the court of appeals held in State v. Tanksley that the trial court erred by denying a Frye hearing in a urine test case, but – based on Edstrom – the court held the error harmless. The court also upheld the district court’s suppression of expert testimony challenging the validity, reliability and accuracy of the urine test result. 

Shortly thereafter the court of appeals again affirmed a trial court’s decision prohibiting a driver from offering expert evidence on the reliability of urine testing to measure alcohol concentration in State v. Dixon. The court justified denying the driver his fundamental right to present a complete defense because, “Minnesota recognizes urine testing as a reliable method of measuring alcohol concentration.” 

Minnesota Supreme Court Grants Review.

Last month the Minnesota Supreme Court accepted review of State v. Tanksley and State v. Dixon (the parties in Edstrom did not seek review; it appears that had they done so, it likely would have been granted).

In its order granting review of Dixon, the Supreme Court provided insight on at least one of the issues that it felt required review:

IT IS HEREBY ORDERED that the petition of Matt Dixon, Jr., for further review be, and the same is, granted on the issue concerning exclusion of defense evidence challenging the reliability of urine testing, and all proceedings are stayed pending final disposition in State v. Tanksley, No. A10-392. The petition is denied on all remaining issues.

Judges across the state have denied drivers the right to tell the whole story to a jury: that urine testing is junk science. With the Minnesota Supreme Court reviewing the issue on appeal, we hope that will change.

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Minnesota Intoxilyzer Source Code Update: Responses to the Appeal.

Posted on April 4, 2011 by Chuck Ramsay

Today, the Office of the Minnesota Attorney General on behalf of the Commissioner of Public Safety and Prosecution Liaison Counsel for the State of Minnesota filed responses to the Appeal of Judge Abrams’ Order. The defense trial team appealed Judge Abrams’ Order on March 28, 2011.

You can view the State’s Response and Commissioner of Public Safety’s Response here.

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