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

The Minnesota Supreme Court has accepted accelerated review of the appeal that was made of Judge Abrams' Order as part of the consolidated Source Code litigation. This means that rather than arguing this case to the Minnesota Court of Appeals before appealing to the Minnesota Supreme Court, the case is being immediately sent to the highest court in the land.  This should ensure the speediest possible resolution to the consolidated challenge to the Intoxilyzer 5000EN.

A copy of the Order can be seen here.

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The use of urine tests for DWI’s in Minnesota received yet another endorsement from the Court of Appeals today. At issue in the case of Ellingson v. Comm’r of Pub. Safety was the question of whether urine tests fell into the “single factor exigency” doctrine that permits law enforcement to collect other types of samples (blood and breath) without first obtaining a warrant.

What makes the issue compelling - and highlights another reason why Minnesota is pretty much the only place in the world that is still using urine tests - has to do with the basic fact that the alcohol in a person’s bladder is fundamentally different than the alcohol in a person’s bloodstream.

The argument, simply put, is that while your average person’s blood alcohol steadily decreases over time (due to action by the liver and kidneys) the same doesn’t hold true for alcohol in a person’s bladder. In fact, we’ve presented unrebutted expert testimony in court that urine alcohol, compared to blood alcohol, doesn’t decrease at all.

In the Ellingson case, the court was only presented with the testimony of a government-paid, government employed lab technician, who convinced the court that urine alcohol “could” rapidly change in concentration. However, if you ask a toxicologist who isn’t employed by the Minnesota Bureau of Criminal Apphrension, they’ll tell you that any change in urine alcohol concentration could affect, at most, the third digit (example: a sample that would test at .105 could, over an hour, change by about .002).

Thus, the “single-factor exigency” doctrine, which was designed to apply in blood and breath test cases where alcohol concentration can go down by .015 in an hour, now applies to situations where any alcohol concentration may be decreasing by a comparatively minuscule amount.

This issue is far from finished. The Ellingson court based its finding on a very lenient standard of review (it gave great deference to the lower court’s opinion of the testimony it was presented with). In another case, with more accurate testimony, the courts will still be free to find that urine alcohol concentration doesn’t diminish rapidly enough to permit a warrantless intrusion. This is just another example of bad facts making for bad law. 

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Far too often we field calls from people who were recently arrested for DWI and just want to “plea and get it over with.” Now, don’t get me wrong – pleas and plea negotiation are a huge part of being a successful attorney. But going into a case expecting to immediately plea to the first available offer is a surefire way to end up being punished far more harshly than the law typically allows.

Some of these calls are a direct result of the “overzealous prosecutor.” This is the prosecutor who is willing to push every case as far as they can, without regard to any individual circumstances or facts that could lead to a reduced charge or sentence. A good example of this type of case was recently published by our Court of Appeals. In State v. Brown, someone was charged with DWI while operating a motor scooter. Not just any motor scooter – this scooter topped out at around 5 miles per hour and was necessary because the “driver” was disabled. Unable to walk, this scooter was his only way to get around.

Now, why would a prosecutor charge someone with DWI while they were, in effect, just walking around? The simple answer is because they thought they could get away with it. Out of shame or embarrassment, many people are willing and able to plea to whatever crime they’ve been charged with, regardless of the facts and the law (and sadly, too many attorneys who are ethically bound to zealously represent their clients are more than willing to take their money and let them).

In Brown, the Court of Appeals quickly determined that DWI doesn’t apply to someone who relies on their scooter for day-to-day mobility needs. Which makes me wonder – how many other individuals pled guilty in the past to this exact same offense rather than question whether the charge was even valid?

Our clients are continually surprised at the sheer volume of meritorious defenses that can be raised to defend against a charge of DWI. Before you give in and plead to a criminal charge, it is always a good idea to speak with an attorney first. In most cases, the only way to counter an overzealous prosecutor is to have an equally zealous defense attorney in your corner.

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Recognizing that Minnesota’s DWI test refusal law is more complicated that meets the eye, this week the Minnesota Supreme Court reversed the conviction of a man convicted of refusing to submit to a DWI test in State v. Koppi. The Court ruled that the trial court had given an erroneous jury instruction which did not accurately convey the law. The Court granted the driver a new trial as the error was not harmless. 

The case supports our law firm’s position that the criminal test refusal law is not as simple as, “did the person refuse to submit.” Just look at some of our previously blogs, including Refusing to Submit to a Blood Test Not Always a Crime In Minnesota. 

There are numerous other facts that a jury must find as well before a driver can be convicted of test refusal. Koppi says that the criminal refusal law, Minnesota Statute section 169A.20, subdivision 2, incorporates the requirements from section 169A.51, of the Implied Consent Law. It specifically held, “Refusing a chemical test is not a crime, therefore, unless it can be proven beyond a reasonable doubt that an officer had ‘probable cause to believe the person was driving, operating, or in physical control of a motor vehicle’ while impaired.”

Koppi held that Minnesota’s standard jury instruction for DWI test refusal does not accurately convey the law. The trial court in Koppi read the following to the jury:

Probable cause means that the officer can explain the reason the officer believes it was more likely than not that the defendant drove, operated or was in physical control of a motor vehicle while under the influence of alcohol.

10A Minn. Dist. Judges Ass‘n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 29.28 (5th ed. Supp. 2009).

The jury instruction contains three flaws:

1.            It does not require the officer to recite actual observations and circumstances supporting a finding of probable cause;

2.            It fails to include the requirement that the jury evaluate the totality of the circumstances from the viewpoint of a reasonable police officer;

3.            The instruction erroneously requires that an officer believe a driver was “more likely than not” driving while impaired, rather than the proper “honest and strong suspicion” standard.

Some defense attorneys may believe that amending the jury instruction from “probable cause” to “honest and strong suspicion” may be detrimental to the driver. But the new standard does not lower the standard; it merely gives greater guidance to the jury, taking away mathematical probabilities. 

Although the court did not provide an actual jury instruction to be used, the court’s guidance on developing a new standard included the requirement of “probability.”

The “honest and strong suspicion” standard requires more than mere suspicion, but less than the evidence required for a conviction. Probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.

The court left for another day whether the trial court could substitute its own determination for that of the jury whether the driver had been given sufficient time to consult with an attorney.  Meanwhile, the defense will continue to challenge Minnesota's test refusal law, including whether the statute is unconstitutionally vague and ambiguous.  See Minnesota's Test Refusal Law: Findings a Loophole in a "Knotty" Law.

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