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

Today, the Minnesota Court of Appeals issued a much-needed decision that clarifies the scope of Minnesota’s DWI Vehicle Forfeiture law. In the case of Laura Patino v. One 2007 Chevrolet, the Court took full advantage of the opportunity to correct previous case law that had led to far too many erroneous forfeitures, holding that when a vehicle is seized for committing a forfeitable offense, but the driver is never convicted of that offense, they have every right to get their vehicle back.

The prior law was laid out in the case of Mastakoski v. 2003 Dodge Durango, 738 N.W.2d 411 (Minn. App. 2007). That case, in a nutshell, stood for the proposition that if the police seize a vehicle after someone commits a “designated offense,” they get to keep the vehicle even if the person is never convicted of that “designated offense.” After finely parsing the language of Minn. Stat. §169A.63 (the DWI Forfeiture Statute), the Mastakoski court concluded that just being arrested and charged for a “designated offense” is enough to support a vehicle forfeiture, and pleading guilty to an offense other than the originally charged “designated offense” would not save the vehicle from forfeiture.

If that decision seems counter-intuitive to you, you’re right. You’d think that if the police seize your vehicle for second degree DWI, and you (or whoever was driving the vehicle) is never convicted of second degree DWI, you should get your vehicle back . . . right? Well, that’s exactly what the Patino court determined today. The Court relied upon a portion of the forfeiture statute that went ignored by the Mastakoski court, Minn. Stat. §169A.63, subd. 9(f). And that section makes it clear that a person does need to be convicted of a “designated offense” before the state can finally and forever seize their vehicle.

This ruling will have an immediate impact on how both forfeiture cases are handled and also how underlying criminal cases are handled. It also emphasizes how important it is to have an experienced attorney handle both the criminal and the civil forfeiture case - both cases provide opportunities to get your vehicle back from the state. Above all, the Patino case indicates that some semblance of sanity is returning to our DWI Vehicle Forfeiture Law, and that in the future we can hope for less draconian enforcement of this especially harsh law.

UPDATE (April 3, 2012): DWI Automobile Forfeiture Case Set for Oral Argument.

UPDATE (February 12, 2012): The Minnesota Supreme Court has granted the motions of the MSCJ and MACDL to file an amicus curiae brief.  See Supreme Court Grants Amicus Status in DWI Forfeiture Case.

UPDATE (January 26, 2012): The Minnesota Supreme Court has accepted review of this case.  See Supreme Court to Review Minnesota's DWI Forfeiture Statute.

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We blogged last week regarding yet another problem that affects first void urine alcohol tests (F-VUAT) that are tested by the Minnesota Bureau of Criminal Apprehension. In one case, we re-tested a urine sample that was reported to have an alcohol concentration of .09. Our retest, performed at an accredited laboratory, reported a result of .05 – significantly lower than .09, and well below the legal limit of .08.

Via sworn testimony at an Implied Consent hearing, we were told the following two tidbits:

1)    The open admission that BCA forensic scientists routinely botch the handling of crucial evidence in about half of all DWI urine cases, resulting in destruction of the evidence; and,

2)      The revelation that this mishandling of evidence, a problem that was announced to have been “solved” in a 2003 study by the BCA toxicology supervisor, has actually continued non-stop since that day, and that the BCA does not think that it is necessary to inform anyone about it.

So why the discrepancy?

Although the BCA forensic scientist who analyzed the sample was unable to account for the differences, the Commissioner called a second BCA employee to justify the discrepancy. His explanation was alarming.

He claimed that after testing our client’s sample, the BCA froze what was left to “preserve” it. He then speculated that the freezing (instead of refrigerating) the sample caused it to lose alcohol. This, despite the fact that the 2003 peer-reviewed study addressed this issue and determined that the use of a different type of storage container would correct any problems like this.

Strangely, while acknowledging the BCA continues to use the same containers that were previously found to correctly preserve these urine samples, he then testified that the conclusions of the previous 2003 peer-reviewed study are wrong – despite the fact that 1) he was an employee of the BCA at the time the study was published, 2) neither he nor the BCA has taken steps to correct the published article, and 3) he is of the personal opinion that the BCA has no duty to actually preserve these samples for retesting, because his lab results are good enough!

Not only does he disagree with the published 2003 peer- reviewed study, he openly speculated that shoddy work forensic scientists at the BCA are responsible for this discrepancy. Specifically, his “conjecture” is that the forensic scientist who analyzed our client’s urine test failed to properly seal the urine container - which then purportedly allowed the alcohol to evaporate. He also believes that an analyst’s failure to properly secure the lid on the urine samples occurs in about ½ of all the urine test samples at the BCA lab! Under his version of the truth, literally thousands of samples are being destroyed (from an evidentiary standpoint) because analysts can’t be bothered to tighten the lids properly.

If this explanation holds up in court, the BCA has stumbled upon a dramatic new way to forever prevent any other lab from reviewing their results. If a retested sample produces the same results, they can claim that this just supports the fact that they did everything right the first time. If a retested sample produces different results, they can keep on saying that they did everything right the first time, and blame that tricky sample for changing on them!

Last week we rhetorically asked when would a courageous BCA employee come forward and blow the whistle on BCA practices. We did not think it would happen like this! Ironically, it is the “whistleblower’s” attempt to explain the discrepancy between two test results that reveals not only widespread incompetence and fraud by omission, but as a panel of judges in the State of Washington put it, it may also reveal a culture of “‘culture of compromise’ with so many “ethical lapses, systemic inaccuracy, negligence and violations of scientific principles.”

Are we just beginning to scratch the surface in Minnesota? 

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A senior forensic scientist at Minnesota’s Bureau of Criminal Apprehension (BCA) has come forward with shocking revelations. According to the sworn testimony of the 25-year veteran:

1)      BCA forensic scientists routinely botch the handling of crucial evidence in about half of all DWI urine cases, resulting in destruction of the evidence; and,

2)      A 2003 BCA study published in a prestigious publication includes misleading results and inaccurate conclusions; the BCA has refused to publicly correct its findings and conclusions with the scientific community.

Unfortunately, these revelations come not from a courageous government servant blowing the whistle on shoddy forensic work and unethical conduct. Instead, it’s just another attempt by the Minnesota BCA to justify - at all costs – a truly shocking lack of scientific accountability.

The Rest of the Story…

The two revelations listed above came to light during a civil implied consent hearing. The State revoked our client’s driver’s license when the BCA reported a urine test result as .09. We had the same sample analyzed by an independent lab, which reported a .05! (See more on independent analysis of urine samples). Now, before you jump to any conclusions, you need to know that two separate BCA witnesses and our privately retained forensic scientist all agreed that the independent lab’s test result was valid, reliable and accurate.

The parties presented two equally valid samples with widely disparate results. One result supported the license revocation (being slightly above a .08) while the other (well below .08) did not.

This situation underscores just one of the many, many problems that surround the use of first void urine alcohol tests (F-VUAT) for DWI purposes. Not only can two separate urine samples, taken minutes apart, produce dramatically different results, but now we see that the same sample, tested on different days, can also produce shockingly inconsistent results.

How did we get to this point? Did the BCA, faced with such baffling evidence, agree that their procedures were faulty? Did the State admit error, and tell our client she could have her license back? Sadly, when you live and drive in one of the only states in the world who still use F-VUAT, you’re not dealing with a state that is likely to admit that it made a mistake.

Instead, what was revealed was the startling revelations revealed above. Next week, we’ll relay to you exactly what was said, and why it’s so troubling.

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We’ve told you about problems with the Intoxilyzer 5000, Minnesota’s breath test machine. In 2008, Minnesota Lawyer reported on how we even uncovered a state secret that errors in the breath test machine’s software wrongly convicted people of test refusal. The State tried to keep it secret and continued to use the machine. 

This type of conduct occurs, not only in Minnesota, but in other states as well. Unfortunately, officials are rarely held accountable. It seems a group of Texans are changing that in Houston.

INTOXILYZER TECHNICIAN BLOWS WHISTLE

When a technician blew the whistle on Houston’s breath testing program – which, coincidentally, also uses the Intoxilyzer 5000 – her supervisors did nothing. So she quit, putting many breath test cases in jeopardy.

According to the blog, Life at the Harris County Criminal Justice Center -- An Insider’s View of What is Really Happening in the Harris County Criminal Courts, the Harris County District Attorney’s Office didn’t like this. They went after the former breath technician by convening a Grand Jury in an attempt to indict her for a crime.

GRAND JURY EXCLUDES PROSECUTORS FROM TESTIMONY!

Something went wrong along the way for the prosecutors. The Grand Jury ordered the bailiffs to keep the prosecutors out. As Murray Newman writes,

In legal terms, the proper response to this is "Holy Catfish, Batman."

Prosecutors are always in the room with Grand Jurors when they are interviewing witnesses. The only part they are excluded from in a Grand Jury is when the grand jurors deliberate. The Grand Jurors excluding the prosecutors from the testimony is kind of the equivalent of the President being booted out of a Cabinet meeting. It just doesn't happen. I mean, ever.

The prosecutors freaked and brought a motion before a judge to order the jury to allow them in. After the judge refused, the prosecutors appealed. Last week the court of appeals denied the motion!

GRAND JURY: ARREST THE PROSECUTORS!

It seems the Grand Jury wanted the prosecutors arrested according to the prosecutors’ briefs to the appellate court:

Just prior to being escorted out of the grand jury room by the bailiff, I observed the bailiff in her office and overheard the bailiff speaking in a telephone conversation. The bailiff said to the person on the phone, "They told me to arrest the DAs." From that, I assumed that the grand jury had instructed the bailiffs to arrest Mr. Hobbs, Mr. Morris and me if we remained in the grand jury room while the grand jury was attempting to question the witness.

See the local ABC television story for more details.

Amanda Culbertson, the breath testing employee who blew the whistle on shoddy maintenance of the breath test machines, is a hero and so are those on the Grand Jury. The prosecutors are scared, and may be guilty of criminal behavior themselves. At a minimum they’re guilty of dereliction of duty. Instead of ensuring that justice is served by seeking to convict the guilty based only on forensically sound evidence, they make a mockery of the judicial system and embarrass themselves and other good prosecutors by failing to uphold their constitutional duties.

Meanwhile in Minnesota, we await someone like Amanda Culbertson to step forward….

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The last source code brief is in! The Source Code Coalition filed its reply brief on behalf of thousands of Defendants and Drivers with the Minnesota Supreme Court on October 17, 2011.  This is the last of the briefs to be submitted to the Minnesota Supreme Court on this issue. We anticipate the Supreme Court will schedule a date for oral argument soon. 

Here are the other briefs filed in this matter pending before the Supreme Court:

Appellant’s Brief and Appellant’s Appendix and Index, filed August 29, 2011;

Brief and Appendix of Respondent (State of Minnesota Prosecution Liaison Counsel), filed September 28, 2011;

Respondent’s Brief and Appendix (Commissioner of Public Safety), filed October 3, 2011;

Brief and Appendix of Amicus Curiae, CMI of Kentucky, Inc., filed October 10, 2011; and,

Appellant’s Reply Brief, filed October 17, 2011. 

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Minnesota finally is using its new breath test machine, the DataMaster DMT. The state has produced no public information about these machines, so my office contacted the Minnesota Bureau of Criminal Apprehension (BCA) on two occasions last week in attempt to obtain documentation for the machine.

BCA employees initially claimed the DataMaster breath test machine was not yet “deployed” and therefore no manuals are available. After we told them that we are aware of several instances where police officers used the machine for DWI testing to revoke several drivers’ licenses, they admitted the machines were being used only in a “pilot program.”

One of my firm’s employees spoke to a supervisor. We specifically requested the DataMaster DMT manual, documents used to train operators and any other documents related to the breath test machine. The supervisor said the BCA would not provide any of the documents, and insisted we go through the Office of the Attorney General and obtain them through formal discovery in an actual DWI case.

This is disturbing. Because discovery is specifically limited by Minnesota’s Implied Consent Act, the BCA’s position requires a court order to obtain the public documents in a DWI case with the Attorney General.

The relevant part of the implied consent law says:

Judicial reviews must be conducted according to the Rules of Civil Procedure, except that prehearing discovery is mandatory and is limited to:

(1) the notice of revocation;

(2) the test record or, in the case of blood or urine tests, the certificate of analysis;

(3) the peace officer's certificate and any accompanying documentation submitted by the arresting officer to the commissioner; and

(4) disclosure of potential witnesses, including experts, and the basis of their testimony.

Other types of discovery are available only upon order of the court.

Minnesota Statute section 169A.53, Subd. 2(d).

This is a change from the way the BCA has traditionally handled such requests. Previously the BCA was much more open to requests for information.

This is not the first time the BCA’s toxicology section has copped an attitude. As Judge Abrams wrote in his source code order:

Those responsible for the operation and maintenance of the [Intoxilyzer 5000 at the BCA] have been defensive and at times outright hostile to the suggestion that problems may exist, which has in turn led to the instant challenge. … A less defensive posture and access to the [information] at an earlier time would likely have increased confidence in results and reduced the need for this protracted litigation.

Minnesota Intoxilyzer Source Code Order #20, P. 115, March 7, 2011 (italics supplied).

While we hope the government learns from its mistakes, it seems the BCA is unaware of the Minnesota Government Data Practices Act which requires disclosure as well. Failure to turn over the documentation under the act could likely result in payment of sanctions.

While we will be filing a formal data practices request this week, we are disappointed the BCA would again entrench itself in secrecy.

What do you think the BCA is afraid of?

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There are two types of punishment the state can impose on a driver who allegedly operated a motor vehicle while impaired by alcohol or a controlled substance – although not all controlled substances are viewed equally. In Minnesota, the state cannot revoke your license to drive (one type of punishment) based solely on a positive blood or urine test for marijuana under Minnesota’s Implied Consent laws. However, if a prosecutor charges you with the crime of driving while impaired (the second type of punishment) you will lose your license if convicted.

Minnesota has two methods of taking your license in this situation: through the Minnesota Implied Consent Act (civil driver’s license revocation) and as a direct consequence if you are convicted of a crime. 

Civil Driver’s License Revocation

Minnesota’s Implied Consent Act permits the state to revoke a driver’s license to drive when a driver’s alcohol concentration is .08 or more or when a blood or urine test detects any amount of most drugs or their metabolites, including prescription medications. As we discussed recently, the state may take the license even before the driver goes to court under the Implied Consent Act.

However, Minnesota treats marijuana differently from other drugs and alcohol. It cannot take away a person’s license to drive under this law when blood or urine tests detect the presence of marijuana under any circumstances.

Criminal DWI Laws

So, in Minnesota, it is not, under the Implied Consent Laws, automatically a crime to drive a vehicle with marijuana in your blood or urine. Unlike other drugs, Minnesota does not make it a crime to have marijuana in a driver’s system – meaning that there is no “per se” limit for marijuana. While the legal driving limit for alcohol is .08, and any amount of methamphetamine will provide a basis to charge someone with DWI, there is no minimum (or even a maximum) amount of marijuana that you can have in your system before it is illegal to drive.

This isn't to say you can feel free to toke up prior to driving, because it is still a crime to drive while "under the influence " of marijuana. If a person is actually impaired by the use of marijuana at the time they are driving, they can and probably will be charged with DWI.  However, unless you plead guilty to such a charge, it is extremely difficult for a prosecutor in most cases to meet the burden of proving guilt beyond a reasonable doubt. If the matter goes to a jury, a good defense attorney can often suppress the results of any blood or urine tests, as the scientific community is in agreement that evidence of prior marijuana consumption simply does not have any bearing on whether or not  someone was actually impaired by marijuana. And without those test results, the prosecutor's case is usually pretty weak. While it is never a good idea to drive a vehicle while tired, texting, after consuming alcohol, or with any sort of "hard" narcotic in your system, Minnesota has crafted its laws in such a way so as to make it easier to avoid a license revocation for those drivers who may have recreationally used marijuana in the past (which, let me make clear, is a crime in Minnesota) but who were not impaired at the time they were actually driving.

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