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

Last week we told you that the Minnesota Supreme Court accepted review of State of Minnesota v. Retzlaff. In Retzlaff, the driver may escape felony DWI prosecution because a provision in the DWI Felony Law erroneously cites to the wrong provision of the Criminal Vehicular Operation Law.

Last week, the Minnesota House Public Safety Committee approved HF 2246, a bill that clarifies impaired driving provisions in response to Retzlaff. The bill is now before the House Judiciary Committee. The companion bill, SF1825, was approved by Senate Judiciary Committee and sent to the Senate floor.

I would hope the Supreme Court would reverse the lower courts and dismiss the felony, particularly now that the legislature will soon close the loophole in the law.

UPDATE (3/2/12) - By unanimous vote, the House passed the bill. The Senate bill is now pending before the full Senate.

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In the case of State of Minnesota v. Retzlaff, the defendant submitted a breath sample of .19 on the Intoxilyzer 5000. Because he had previously been convicted of felony criminal vehicular operation in March 2000, was charged with a Felony DWI.

Normally in Minnesota, a person must have three prior qualified driving incidents within the last ten years in order to be charged with a felony. One statute seems to permit enhancement to a felony where a person was previously convicted of a felony under the criminal vehicular operation / criminal vehicle homicide statute.

In Retzlaff, the defendant argued he could not be charged with felony drunk driving because the enhancement provision of the Felony DWI Law refers to a statute numbered differently from his prior conviction. Retzlaff argued that the law as currently written expressly enhances offenses to Felony 1^st degree DWI when the driver had a prior conviction under 609.21, subdivision 1. In fact, he had been convicted of criminal vehicular operation under section 609.21, subdivision 2A. 

The trial court and the Minnesota Court of Appeals found that he could be charged under the statute, despite the obvious discrepancy. The appellate court noted even where the law is clear and unambiguous, further analysis is “necessary if the plain meaning leads to absurd or unreasonable results that depart from the purpose of the statute.”

Because we are convinced that Retzlaff’s literal interpretation would utterly confound the statute’s intent, we affirm his conviction of first-degree driving while impaired.

The Supreme Court granted review on February 14, 2012. We look forward to reviewing the parties’ briefs, watching the oral argument and reading the Supreme Court’s order.

In the meantime, we intend to use “absurd result doctrine” in urine cases to demonstrate that the legislature did not intend to make criminals out of drivers who have zero alcohol in their blood, but are over the legal limit by urine. Watch for our next post in the Minnesota DWI Defense Blog: “Does the Absurd Results Doctrine Preclude First-Void Urine Alcohol Testing?”

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The collateral consequences for a DWI conviction are severe - you not only have the possibility of going to jail, but have to deal with the loss of your driver’s license, needing to use special series “whiskey” plates on your vehicles, court mandated treatment, expensive and exasperating ignition interlock programs . . . the list goes on and on. And these consequences keep getting harsher, year after year.

Surprisingly, one collateral consequence that affects hundreds of Minnesotans annually may have just gotten a little easier to deal with. I’m talking about the fact that, until recently, a DWI conviction usually bars you from entering Canada for up to ten years. While there are ways around the law, none of them are reliable and all of them are expensive.

Many of our clients travel to Canada - for business conventions, to hunt or fish, or to visit relatives. Our advice to anyone charged with a DWI, who still wishes to visit Canada, is the same as always - fight the charges! Canada can’t bar your entry if you are never convicted of a DWI.

However, if that’s no longer an option, there is still hope. That’s because starting March 1 Canada has officially relaxed its border restrictions for those with DWI’s on their record.

Citing the severe economic problems that the old law was causing for Canada’s tourism industry, these new regulations may “change 70-80 percent of the turnbacks at the border for people who now qualify.” This new Tourism Facilitation Action Plan should apply to anyone who served less than six months in jail for their DWI offense, and is good news for anyone who has missed taking week-long fishing trips into Canada, or tried to visit Canada on business.

While Minnesota continues to enact harsher and harsher penalties for even first time DWI offenders, it is heartening to see that our neighbor up north has become more willing to cut many offenders a break, and again permit their entry into Canada.

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Last week Ramsay Law Firm, on behalf of both the Minnesota Association of Criminal Defense Lawyers and the Minnesota Society for Criminal Justice, asked the Minnesota Supreme Court for permission to file an amicus curiae brief in an upcoming case that will interpret a troubling aspect of Minnesota's DWI vehicle forfeiture statute.

The motions were granted. Soon, in our role as amicus curiae, we'll be submitting our legal brief, explaining in detail exactly why our Supreme Court needs to interpret our DWI vehicle forfeiture statute in a way that protects, rather than undermines, the private property rights of everyone driving on Minnesota's roadways.

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

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The Minnesota Supreme Court issued a decision today in the case of State v. Tanksley. In this case, the Court held that the appellant was not entitled to a first-prong Frye-Mack hearing to contest the scientific reliability of first-void urine alcohol tests (F-VUAT), stating that appellant had not properly raised a “relevant reason for holding a [Frye-Mack] hearing” and denying Tanksley’s attempt to raise further arguments for the first time on appeal. On these facts, the Supreme Court held that the general acceptance of F-VUAT testing by the scientific community was irrelevant when someone was charged with the per se crime of driving with an alcohol concentration over .08g per 67 mL of urine.

At first blush, this decision is a harsh blow to anyone charged with a DWI based upon widely-discredited F-VUAT tests. However, Tanksley is as important for what it does say as for what it does not.

This decision makes it clear that our courts will not subject F-VUAT tests to the scrutiny of the fist-half of the Frye-Mack test. But remember . . . the Frye-Mack standard asks two questions. First it asks if a test has gained “general acceptance” (for the last time, it certainly has not, but the Court has ruled that the very question is irrelevant). Secondly, and most importantly, the Frye-Mack test asks whether or not the test has foundational reliability. Those two words are some of the most loaded words in the legal language, and go to the heart of our argument against F-VUAT testing.  And that question - “Does F-VUAT testing have foundational reliability?” - was never even addressed by counsel for Tanksley and thus was not addressed in the Tanksley decision.

We have that very question up on appeal, and are prepared to argue it to the Supreme Court in the wake of the Tanksley decision. And while the Tanksley decision made it clear that their decision was based upon a fear that any other ruling would force them to “add an element to the alcohol-concentration offense that is not present, ” our challenge to the foundational reliability of F-VUAT tests has nothing to do with statutory language. In other words, challenging the foundational reliability of a F-VUAT urine test does not hinge on the criminalization of .08g of alcohol per 67 mL of urine; instead, the challenge is based upon how we reach that .08 threshold. And the scientific community makes one thing clear - that foundational reliability requires a second void.

Although the Tanksley decision answered one question, it left another one wide open . . . meaning that F-VUAT tests haven’t yet seen the end of their troubles in court.

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It’s been over a year since the Minnesota Supreme Court issued its decision in State v. Hull, which paved the way for further Frye-Mack challenges to Minnesota’s use of first-void urine alcohol testing (F-VUAT). Those challenges have worked their way through the appeals process, and we’re anxiously awaiting decisions on the cases that we currently have before the Supreme Court. The first half of 2012 should see a decision regarding whether or not F-VUAT can be challenged at a Frye hearing in order to determine whether or not the practice is generally accepted in the scientific community.

Alongside our challenges to the general acceptance of F-VUAT (under the first prong of the Frye-Mack standard) is our companion challenge to the foundational reliability of F-VUAT testing (the second prong of analysis under the Frye-Mack standard). While the second prong of the Frye-Mack standard also involves a “general acceptance by the scientific community” component, this particular issue has not yet been raised before the Supreme Court . . . for now, it’s still a battle that will take place county by county, case by case, judge by judge.

Yet another key issue surrounding F-VUAT, which was also accepted for review by the Supreme Court, is whether or not criminal defendants and civil license revocation petitioners are entitled to present expert testimony to challenge the validity and reliability of F-VUAT tests. Resolution of this issue not only implicates the scientific foundation of F-VUAT testing in general, but also involves the key Due Process right of every defendant to present a complete defense.

What is clear is that the Supreme Court is taking a close look at F-VUAT testing, and that 2012 will likely see several decisions from the Court clarifying both the future of the Frye-Mack test with respect to all types of forensic evidence, as well as the specific use (or exclusion) of F-VUAT testing in Minnesota.

What other top issues will we see in 2012? To see the full list, check out Top Ten Issues in Minnesota DWI Law in 2012.

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Our blog is entitled, “Minnesota DWI Defense – Cutting Edge DWI/DUI News ... Providing Tomorrow’s Issues & Defenses Today.” Consistent with our title, we’re going to give you the top ten issues of DWI and DUI law you will hear about in 2012. Some you would expect, others may be a surprise and still others you may never have heard about before . . . that is, until reading our blog.

Read on to educate yourself on the following topics:

#1 Ongoing Problems With DWI First-Void Urine Alcohol Tests (F-VUAT)

#2 The New Kid In Town – Breath Tests on the DataMaster DMT-F

#3 Don’t Let the Door Hit You on the Way Out– Breath Tests on the Intoxilyzer 5000 EN

#4 Uncertainty of Measurement in Blood, Breath, and Urine Test Cases

#5 On the Ropes – Fresh Concerns Regarding Minnesota’s DWI Refusal Law

#6 DWI Bail and Bond Issues

#7 Minnesota’s Unconstitutional Implied Consent Law

#8 Warrantless Searches and Seizures for DWI Drug Arrests

#9 Paying Attention to the Man Behind the Curtain: Independent Analysis, Storage, Testing of DWI Biological Samples

#10 Scientific Standards in the Twilight Realm: Problems with DWI Blood Testing

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