"Enhancement" of First Time DUI Offenses


Many drivers are shocked when they learn the consequences of their DUI arrest – it is an all-too-common misconception that a “simple” DWI conviction is not a “big deal.”

In Minnesota, even drivers who have no previous DWI arrests may be treated as harshly as those with previous DWI convictions, something that wasn't always the case. How is this possible?

Minnesota’s DWI laws permit prosecutors to “enhance” a DUI charge when:

1.      A driver's alcohol concentration as measured by blood, breath or urine is .20 or more;

2.      A driver is charged with “test refusal”;

3.      A child under 16 is in the vehicle;

4.      A person is injured (criminal vehicular operation or criminal vehicular homicide);

5.      A person has one or more prior “convictions” for DWI (in this state or in another); or,

6.      A person has a previous “implied consent” license revocation, (even if they have no previous DWI or DUI conviction.

These “enhancements” apply not only to criminal cases, but to civil license revocations as well. In fact, one harsh aspect of Minnesota’s new DWI laws is that drivers with an alcohol concentration of .16 or more (not .20 or more) face a one year license revocation – and now no longer have the option of getting a work permit or hardship license.

So, after the shock of being charged with DWI begins to wear off, those same drivers will often ask the next logical question, “Is it worth it to fight the DWI charges?” The answer is that in most cases, it is, particularly where the government is enhancing the charges in the ways described above. No longer is the issue as simple as, “I drank and drove, therefore I must be guilty.” A good defense attorney knows that the government needs to prove more than whether or not you were over the legal limit; the government also has to prove beyond a reasonable doubt the specific facts required to enhance the charge. And while it is more than possible to straight up beat the DWI charges against you; it’s just as likely that those “enhancing factors” can be beaten as well. 


Minnesota's Implied Consent Law: Is It (Again) Unconstitutional?


Shoot First – Ask Questions Later

Under a shoot-first-ask-questions-later philosophy, the Minnesota Commissioner of Public Safety can take away drivers’ licenses without first conducting a hearing on the propriety of the revocation pursuant to the Minnesota Implied Consent Act. Although drivers may challenge the license revocation in court, it can take months before the case goes to court. Even in those cases where a judge ultimately orders license reinstatement, the damage is already done. There is no way to “undo” the loss of a license during the wait. But a major overhaul to the law may have so radically changed the legal landscape that the law is no longer constitutional.

Previous Constitutional Challenges to Minnesota’s Implied Consent Law

The Minnesota Supreme Court has found the basic premise of pre-hearing license revocation to be constitutional. In balancing the interests of public safety against the rights of individual drivers, the Minnesota Supreme Court upheld in Heddan v. Dirkswager (1983) that there were sufficient procedural safeguards to protect the private interest of the driver. At the time those protections included (1) the relatively short revocation period; (2) the immediate availability of a work permit; and (3) a speedy hearing.

After the legislature tinkered with the statute, the Minnesota Supreme Court warned the legislature in the 1994 Davis case not to further erode the procedural safeguards or it would strike down the law as unconstitutional. Although the court upheld the statute, it was troubled by the fact that “a court cannot undo an erroneous revocation,” because “full retroactive relief cannot be provided” and “even a day’s loss of a driver’s license could inflict grave injury upon a person.”

Minnesota Supreme Court: Law Violates Constitution

While it was not “prepared at [that] time to conclude that the legislation in question violate[d] either federal or state due process guarantees,” in 2003 the legislature removed drivers’ right to a prompt hearing. For the first time, the Minnesota Supreme found the law unconstitutional in Fedziuk v. Commissioner of Public Safety (2005), holding that that the law offended the constitution’s right to due process.

New, Radical Changes

Despite the Supreme Court’s early warnings and then later finding the Implied Consent Act unconstitutional, the 2010 legislature radically changed the implied consent law. In doing so, the legislature increased the duration of a first time misdemeanor revocation from 90 days to one year and completely removed the right to a work permit for those with an alleged alcohol concentration of .16 or more.

The legislature attempted to give the appearance of softening the blow to drivers by providing for “zero day eligibility” for ignition interlock. This is just a mirage. First, the administrative process is so unwieldy the Department of Public Safety has been unable to provide anything close to immediate reinstatement, even with the installation of the interlock devices. Second, the cost is prohibitive for most. While the costs vary, drivers must pay hundreds of dollars in fees for installation and monitoring to private carriers. They must pay a $680 reinstatement fee. Finally, they must fork over a four digit amount in advance for a one-year, non-cancellable insurance policy. Presumably, even if a court finds the revocation improper, it would be impossible to undo the erroneous revocation and provide full retroactive relief. Not only would the interim loss of the license inflict injury, but the driver would lose thousands in costs of the ignition interlock program and non-cancellable insurance. 

The Risk of Erroneous License Revocation is Higher Today Than Ever

Finally, the risk of erroneous deprivation is higher today than ever. The state continues to use the Intoxilyzer 5000 for DUI breath testing, which does not always work properly according to the judge in the consolidated source code case. Or, it relies on DUI urine testing using procedures not accepted by the scientific community – and not used at all in any other jurisdiction in the entire country.

Our firm is raising this issue in almost every DUI case.  There is no doubt it will eventually come before the Supreme Court.  Will it find the law unconstitutional? 

DWI Urine Alcohol Testing Case Set for Oral Argument

The Minnesota Supreme Court has set State v. Tanksley for oral argument on October 5, 2011 at William Mitchell College of Law

The issue in the case is whether the trial court erred by denying the driver the right to have a so-called Frye-Mack hearing, to determine whether the scientific community recognizes urine alcohol testing as generally reliable in DWI cases.

Minnesota appears to be the only jurisdiction in the country that routinely uses random sample first void urine testing to determine a specific level of alcohol concentration. Government agencies such as the National Highway Traffic Safety Administration and quasi-government agencies such as National Safety Council, Subcommittee on Alcohol and Other Drugs do not recommend urine testing for such purposes.

Our firm has pioneered this challenge in DWI cases and will be following this case closely. In fact, several of our clients’ cases have been accepted by the Minnesota Supreme Court for review, but have been stayed pending the outcome of Tanksley.  

You can bet we’ll be following this closely and will post an update immediately after the arguments early next month. 

Pt 2: Imprecise DWI Tests: Good Enough for Government Work?

Last week we told you that the scientific community requires blood, breath and urine tests be reported not as a certainty, but with a confidence interval that has a high probability of containing the true alcohol level. (This is not to be confused with results involving mistakes or blunders; uncertainty assumes that no mistakes or blunders have been made.) Therefore, due to the uncertainty in every measurement, the state must report a DWI alcohol test results with a range, not as a single number.

This raises some interesting questions for drivers in Minnesota who face criminal penalties or civil license revocation, or vehicle forfeiture.

Are there established confidence intervals for Minnesota DWI tests? 

Neither the Minnesota Commissioner of Public Safety nor the Minnesota Bureau of Criminal Apprehension (BCA) has published established confidence intervals for any DWI test in Minnesota (blood, breath or urine). 

Despite the 2009 National Academy of Science Report to Congress which requires that each lab analyze and establish confidence intervals for each type of test, Minnesota has failed. Nationally renowned attorney, Ted Vosk, has advocated with some success that no test result should be admitted as evidence unless it meets these criteria. (Note to practicing attorneys, judges and scientists: I highly recommend you read Mr. Vosk’s work along with the NAS report to get a better understanding. See others including Justin McShane.)

How can I use measurement uncertainty in my case?

One well respected scientist has analyzed the data from Minnesota’s Intoxilyzer 5000 to establish a confident interval. Analyzing test data provided by the Minnesota BCA of more than 44,000 breath tests, Rod Gullberg determined that the uncertainty of measurement of a .08 breath test in Minnesota’s Intoxilyzer 5000 EN is approximately nine percent. Rod G. Gullberg, Breath Alcohol Measurement Variability Assessment with Different Instruments & Protocols, 131 Forensic Science International 30 (2003).

This percentage increases with the level of alcohol. At an alcohol concentration of 0.20, the measurement uncertainty is even greater. One must have a thorough understanding of complicated mathematical and scientific concepts to use his formula. For more information, see his work at the Borkenstein Course.

So what does this mean for drivers with alcohol concentrations close to critical levels? The Minnesota legislature has mad .04, .08, .16, .20 critical levels of alcohol concentration.  In addition to other defenses, measurement uncertainty should be employed to defeat blood, breath and urine testing.

Imprecise DWI Tests: Good Enough for Government Work?

Minnesota analyzes drivers’ blood, breath and urine to determine a specific level of alcohol concentration. The manner in which the state reports the results leads us to believe they are very certain that the results are 100% accurate.

This is definitely not the case and is inconsistent with well-established scientific standards.

As with all scientific testing, laboratory analyses conducted by forensic scientists are subject to measurement error. Consider the following situation, based on an example taken from 2009 National Academy of Science Report to Congress:

It’s a DWI case in which the Minnesota Bureau of Criminal Apprehension tests a driver’s blood using “state of the art” instruments. The lab analyzes the blood three times. The instruments’ measurements are 0.08 percent, 0.09 percent, and 0.10 percent.

Minnesota takes the lower of the three measurements, and reports that result – 0.08 – as a certainty. They even try to claim that by taking the lowest number, they’re somehow “helping” the test subject by giving them the benefit of the doubt. This is not only incredibly misleading, but in examples like this, downright wrong. It’s the type of sleight of hand that looks good, but is flat out unscientific. Scientifically speaking, the “conclusion” that should be reached in the above example is that the test result is no higher than .07! (0.09 +- .02 for those of you with statistics training, and further explained below).

As the NAS Report says, the variability in the three measurements may arise from the internal components of the instrument, the different times and ways in which the measurements were taken, or a variety of other factors. These measured results must be reported, along with a confidence interval that has a high probability of containing the true blood-alcohol level (e.g., the mean plus or minus two standard deviations). For this illustration, the average is 0.09 percent and the standard deviation is 0.01 percent; therefore, a two-standard-deviation confidence interval (0.07 percent, 0.11 percent) has a high probability of containing the person’s true blood-alcohol level.

See, 2009 report to Congress of a Committee of the National Academy of Sciences, National Research Council Committee on Identifying the Needs of the Forensic Science Community, Strengthening Forensic Science in the Unites States: A Path Forward, (2009).

In criminal cases the government has the burden to prove beyond a reasonable doubt the driver’s alcohol concentration is over a specific alcohol concentration. When the Intoxilyzer reports an alcohol concentration of .08, juries are left to believe that result is a certainty. It is not.

This becomes even more significant when test results are near .04, .08, .16, .20. The government lab report misleads judges, juries and the Minnesota Department of Public Safety. As a result, drivers are erroneously convicted of drunk driving and may go to jail. They may lose their license to drive and face penalties which include ignition interlock, or vehicle forfeiture and plate impoundment. 

Next: Are there established confidence intervals for Minnesota DWI tests? What are they? How can I use them in my case?