Many people believe that it is impossible to beat a drunk driving criminal charge or the DWI driver’s license case. The public believes this for a number of reasons.
First, ill informed police and prosecutors believe DWI science is beyond reproach.
Second, attorneys who are ill prepared to handle complex DWI cases will often merely exacerbate the problem. In most cases they take their client’s money, then hold their hand as they plead them guilty.
Finally, the personal guilt that many people feel when charged with DUI crimes can be overwhelming, even if they thought that they were okay to get behind the wheel. They either hire a “dump truck lawyer” or plead guilty.
We’ve busted these DWI myths time after time. It takes hard work, dedication, and a heartfelt desire to vigorously defend our clients, but in the end, the effort pays off. Here’s a sampling of some of our more recent successes, accumulated over the last few weeks. These victories demonstrate our commitment to our clients and our never-ending crusade to debunk the myth that DWI’s are “unbeatable.”
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“B Card Violation” – Judge Order Driver’s License Reinstated
The Department of Public Safety cancelled my client’s license to drive. They claimed that he was driving in violation of his restricted driver’s license (which prohibited him from consuming ANY alcohol while behind the wheel).
Our client was involved in an accident in Hennepin County. After reporting to the scene, the police officer claimed to smell an order of alcohol, said our client failed the Horizontal Gaze Nystagmus test, and reported my client’s alcohol concentration was .06 on the preliminary breath test.
Many attorneys believe such “B card” cases are impossible to win – after all, the government just has to prove that our client had a drink (not that he was impaired). Despite the common misconception that this type of case is unwinnable, we won! We challenged the DPS’ evidence in court and convinced the judge to overturn the license cancellation and reinstate my client’s driver’s license.
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DWI – Police Officer Coerced Driver’s “Consent” to take DWI alcohol test
In another case we challenged how the police officer obtained our client’s “consent” to a urine test. As we’ve blogged about before, we believe Minnesota’s implied consent law is unconstitutional as it unlawfully coerces all drivers to submit to DWI alcohol testing.
The judge disagreed with our argument, and we lost at the district court level. That didn’t slow us down – we simply took the fight to the next level, and we appealed to the Minnesota Court of Appeals. After we submitted our appellate memorandum, we received a stunning letter from the government – they would agree to give our client his license back (a victory) if we withdrew the appeal. Thus, solely on the strength of our written memorandum (before we even had to argue the case in front of the appellate court) we won the case!
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Prostitution Sting: Soliciting Prostitution – Case Dismissed
Our firm practices only criminal defense and related civil cases, e.g., automobile forfeitures. Although the majority of our case load is Minnesota DWI cases, we regularly represent people charged in other types of cases as well.
In Ramsey County, our client was arrested as a result of a St. Paul Police prostitution sting. He was charged with Loitering with Intent to Solicit Prostitution. After we obtained the police reports, video & audio recordings, and other documents, we started pushing the government hard – and were able to obtain a complete dismissal of the charges.
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Fifth Degree Criminal Sexual Conduct – Case Dismissed
In another criminal case in Ramsey County, the government charged our client with Fifth Degree Criminal Sexual Conduct. We challenged the criminal charges and showed the prosecutor the weaknesses in its case. Again, they dismissed all of the criminal charges.
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DWI – Bad Seizure– Judge Orders License Reinstated after Urine Test
In a Scott County case, our client was charged with a DWI after he was arrested and given a urine test. The results were .11, well over the legal limit.
Through experience and a desire to fully defend our client, we were able to get the state to dismiss the DWI charges against our client. Shortly thereafter, we convinced the judge in the implied consent case to rule in our favor as well, and restore our client’s driver’s license.
The end result of this “unbeatable” DWI charge? All criminal charges were dismissed, and our client’s driving record doesn’t even reflect being pulled over for a DWI offense.
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DWI – Judge Grants Motion for Post-Conviction Hearing
A judge granted our motion for a post-conviction hearing in our efforts to get a new trial in a highly publicized case that we took to trial more than four years ago. In that case, our client was charged with “test refusal” on the Intoxilyzer 5000 because she was unable to provide an “adequate sample.” She begged for the chance to take another test, but wasn’t allowed to. Because we had not yet uncovered the critical flaw in the Intoxilyzer that causes such errors, the jury found our client guilty of test refusal.
Since that trial, our client’s conviction was overturned by the Minnesota Court of Appeals, and then reversed again by the Minnesota Supreme Court.
Now, four years later, the trial court judge is granting us a new hearing based on the evidence we discovered concerning the faulty source code that runs Minnesota’s breath test machine, the Intoxilyzer 5000. The case is scheduled to be heard next month.
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DWI – Judge Grants Motion for Unprecedented Access to the Source Code
In a civil license revocation case involving the same driver as above, a judge granted our motion for the source code to the Intoxilyzer 5000. However, this case is a good example of what can happen if you reach for the stars; we not only asked for the source code, but also demanded key pieces of source code information well beyond that which was provided in the federal court settlement last year. After listening to our arguments, the court granted our motion, further opening the door to prevent our client from being wrongfully charged as a “test refusal.”
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DWI – .19 Blood Test Dismissed
DWI – .19 Breath Test Dismissed (Source Code)
DWI – .10 Breath Test Dismissed (Source Code)
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“Can’t Win ‘em All . . . But Can’t Win Any If You Don’t Try”
A prosecutor in Ramsey County did manage to hand us our first DWI trial loss in years, in a case where the judge admitted into evidence a .14 urine test result. After careful consultation, our client decided that he wanted his case tried to a jury, despite the prejudicial test result. That jury ultimately found our client guilty.
Fortunately, the judge gave our client the exact same sentence he would have handed down had our client pled guilty without going to trial. As long as there is no disincentive to go to trial, we’ll do just that!
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DWI –Just Reinstates License to Drive – Right to Counsel – .14 Breath Test
In a huge win in a difficult case, a Hennepin County judge ruled in our favor and reinstated our client’s driver’s license after an implied consent hearing (we had already beat the DWI charge on the criminal case). This was a difficult situation where our client was deaf, and had repeatedly begged the arresting officer for either an interpreter or the advice of a lawyer. Although the officer did make some attempts to communicate with our client, he did not know American Sign Language, and the court agreed that her right to counsel was not vindicated.
This is a huge win not only because our client got her driver’s license back, but because this case also resulted in the police department installing a TTY communication device, for hearing-impaired persons.
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Finally, Chuck was named, “Geek of the week” by nationally renowned attorney, Justin McShane of Pennsylvania. The “Truth About Forensic Science”, McShane’s forensic blog, named Ramsay winner of his weekly forensic science quiz, aptly entitled, “Geek of the Week.”
Okay, so it is not a Nobel, but it's a good distraction for Chuck.
Anyone will be upset after being arrested for DWI. They are usually put in handcuffs, transported in the back of a squad car to a nearby (or not-so nearby) police station, and then told to submit a sample of blood (ouch) urine (embarrassing) or breath (inaccurate). After that, many are thrown in jail; others post as much as $12,000 in bail, while others need to find a ride home and a way to get their car out of an impound lot.
After this incident has robbed them of their dignity, many are then even more shocked to discover that they are being charged with not one crime, but two, based off of this arrest. While this seems illegal, it’s actually common, and a good defense attorney can work this to your advantage.
There are two types of DWI Crimes in Minnesota: 1) “driving while impaired” and 2) “per se intoxication.” There is only one real difference between these two crimes, and that is what type of evidence the State can use to prove guilt.
Driving while impaired means just that: the State must prove beyond a reasonable doubt that you were impaired by alcohol or drugs while you were driving. The type of evidence in this type of case ranges from performance on field sobriety tests to the arresting officer’s “opinion” of your level of impairment to the reason the police office stopped your vehicle. Note that for this type of offense, it’s not necessary to prove an alcohol concentration above a .08 - sometimes a driver’s alcohol test result isn’t even relevant.
Per se intoxication, on the other hand, doesn’t mean that a driver was a danger to anyone on the road. In fact, someone who is per se intoxicated might not even feel the effects of what they drank. Instead, per se intoxication just means that someone’s alcohol concentration was at or above .08, as measured anytime within two hours of driving. You can perform perfectly on a field sobriety test and enunciate every word flawlessly, and still be guilty of per se intoxication - if the State has a test result that “proves” you were above a .08.
Back in the day, the only offense drivers could be charged with was “driving while impaired.” These are the types of drivers that can be the most dangerous. However, in close cases, they are also the types of drivers that are hardest for a prosecutor to convict.
Because it can be hard to convict an otherwise safe driver of driving while impaired, the legislature chose to pass a per se law and create a level of alcohol concentration that automatically renders someone “drunk.” This use of “science” makes it far easier for prosecutors to get convictions. Obviously, any prosecutor would rather just flash a test result in front of a jury, say “this number is higher than .08," and get a conviction, than actually prove that someone was impaired!
Of course, these per se laws were both a blessing and a curse for prosecutors. A blessing, because now it’s so much easier to convict people who otherwise do not appear impaired - just look at the test result! However, it’s also a curse, because if they don’t have a test result to rely on, most prosecutors won’t even bother to litigate a driving while impaired case.
That’s where we come in: we often gear our defensive strategy towards getting that test result suppressed, which forces the prosecutor to try their case the “old fashioned” way. Whether that test result is an example of junk science, flawed logic, or the secretive workings of the incomprehensible Intoxilyzer 5000 breath test machine, if there is a way for us to get it suppressed, we will get it suppressed. And without a test result, the vast majority of prosecutors will lose interest in gaining a conviction, and seriously consider settlement or dismissal.
You can feel stone sober and still commit the crime of driving while per se intoxicated. Winning your case means hiring an attorney who knows every possible way to attack the State’s best evidence - a test result - and get it suppressed. If you’ve been charged with driving while impaired, driving while over a .08, or both, contact Ramsay Law Office as soon as possible. We’ll carefully explain the legal process to you and answer your questions.
Many people believe our government should have secrets, at least when it comes to our national security. But scientists agree that forensic testing should be open. Their formulas, procedures and test results must be reproducible in order to be good science. But government scientists and the companies that supply them disagree.
CMI, the manufacturer of the Intoxilyzer 5000 and Intoxilyzer 8000, is holding its 26th Annual Meeting of the Intoxilyzers Users Group in Providence, Rhode Island on August 15-19, 2010. Although I own my own Intoxilyzer 5000 and am certified to operate the breath test machine, I am not permitted to attend. CMI is guarding the program’s agenda, only saying “This conference promises to be an exciting one with many new things, courses, and information to share.”
CMI is notorious for its secretiveness. It has shunned its customers – numerous states including Arizona, Florida, Georgia, Michigan and Minnesota – by refusing to provide access to the software that runs its breath test machines. Only after we obtained a federal court order, was CMI forced to permit us access to its source code. (Our experts are currently in Kentucky at CMI’s headquarters examining the Intoxilyzer 5000 software).
Intoximeters, another breath testing company which produces the EC/IR II and the alco-sensor, also conceals the science behind its breath test machine. It is holding its 2010 Users Group Meeting in its home town September 12-15, 2010. Intoximeters program will include the “’Thomas Workman’ Update” and “Source Code Challenges”. Apparently it felt it was being to open, however, as it recently revised its program omitting the above and instead chose the more generic “Legal Challenges.”
It, too, however, will not permit me or defense experts to attend.
Under our government’s leadership, it’s not surprising breath test manufacturers are so secretive about their breath test machines, the science they use and the software that runs their machines. The Minnesota County Attorneys Association (MCAA) is one of those organizations that perpetuates the covert treatment of DWI law enforcement.
The MCAA describes itself on its internet page:
The Minnesota County Attorneys Association is an independent, voluntary organization of County Attorneys dedicated to improving the quality of justice in the State of Minnesota. The Association is a not-for-profit corporation governed by a Board of Directors elected annually by the membership.
The members of the Association are dedicated to the accomplishment of this Mission by developing consensus on legal and public policy issues of statewide significance to County Attorneys. The Mission will be implemented competently and professionally while adhering to the highest ethical standards of the legal profession.
The MCAA closely follows my work. On its home page, it tracks my issues including the consolidated source code case, urine testing cases (see “Matthys Order”), and obtains transcripts (see “Implied Consent Transcript Bank”) of my expert witnesses and case issues. It will not give me access to its indexed transcript data base.
MCAA’s clandestine treatment of DWIs is particularly troubling. Its annual DWI Program includes:
Initial contact, probable cause and preconditions to a test request
Testing and refusal issues
Right to counsel and additional testing issues
Tips from judges and prosecutors on how to proceed with your case
The impact of administrative rules
The program, entitled “Impaired Driving: New Laws, New Issues, New Decisions” will be held June 25, 2010 at the Minnesota Bureau of Criminal Apprehension in St. Paul.
To help satiate my thirst for knowledge, I thought it would be beneficial to attend. I registered and paid my fee. However, the MCAA told me that defense lawyers are not welcome at the continuing education seminar.
I was surprised given the fact that it advertised one of courses would include “Tips from judges … on how to proceed with your case.” I wonder which judges will present the (secret) tips and if they know the MCAA is precluding defense lawyers from hearing the inside information?
Should your government keep secrets? Maybe when it comes to matters of national security. But not when it comes to “science” that puts innocent people behind bars.
Almost every client that calls us for legal advice and representation will ask it at some point. Most clients who retain us will hear the question from their friends and family. The government and the media have done a great job of making the “science” of DWI prosecutions seem unbeatable.
Which always begs the question: is it even possible to beat a DWI charge?
The answer, our answer, and the correct answer, is always “YES!”
A good criminal defense attorney will help guide anyone through the hoops, traps and pitfalls that make up our complex DWI laws. A great defense attorney will have a proven track record to demonstrate their ability and desire to make sure that you get the best effort and the best outcome possible. But the truly top-notch defense attorneys are the ones who understand that the “science” surrounding DWI prosecutions is little more than smoke and mirrors - and like any illusion, once you see the “science” for what it really is, your attorney is in the best position to reveal how shaky the State’s case really is.
A recent situation that arose in Colorado highlights the fact that any test - blood, breath, or urine - can successfully be challenged in court by top-notch attorney. In Colorado, over 200 blood tests were found to have been horribly botched - some tests reported a blood alcohol concentration 40% higher than the actual concentration should have been! Everyone here at Ramsay Law Office shuddered a little bit at that statistic, but what really gets to us is that the crime lab still can’t explain how so many tests came back with such inaccurate results.
Many people convince themselves that, “if the State’s test says I was over the legal limit, I must have been over the legal limit.” I’m sure that the vast majority of all of the improperly analyzed samples in Colorado went unchallenged in court. And that is the only real way to lose a DWI case - to not examine the evidence, to take the State’s word at face value.
At Ramsay Law Office, we’ve won many “unbeatable” cases, and we’ve done it by staying current with the scientific literature and never taking the State’s evidence at face value. If you’ve been charged with a DWI, and the State has a blood, breath, or urine test up their sleeve, don’t buy into the hype. Contact Ramsay Law Office - we don’t buy into the hype either. We get results.
Last week we published our blog series demonstrating how independent testing and independent analysis of the state’s blood and urine samples may help drivers beat DWI urine or DUI blood tests. After we concluded the series, we ran into an interesting wrinkle when we sought to have two urine samples independently analyzed.
The prosecutor informed us the government had destroyed the urine samples!
I believe the state has a duty to retain such critical evidence until the case has concluded. It should not destroy any blood or urine test samples unless and until the driver has actual knowledge the state intends to destroy the sample and waives the right to examination.
In response, we amended our motions to suppress admission of the test results and to dismiss the DWI charges. We filed the following motions:
1) Dismissing the Complaint based on the State’s destruction of the evidence. Specifically, admission of the urine test report violates Defendant’s constitutional rights to Confrontation, pursuant to Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), because the state intentionally destroyed the evidence, thereby denying Defendant the opportunity to independently inspect, evaluate and test his alleged urine sample;
2) Dismissing the Complaint based on the State’s destruction of the evidence. Specifically, admission of the urine test report violates Defendant’s constitutional rights to Due Process, pursuant to California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528 (1984), because the state intentionally destroyed the evidence, thereby denying Defendant the opportunity to independently inspect, evaluate and test his alleged blood sample;
3) The State has violated the Minnesota Rules of Criminal Procedure and Defendant’s Due Process rights by failing to provide Defendant with his blood sample as part of his requested discovery;
4) The law of spoilation of evidence is inconsistent with the Minnesota Rules of Criminal Procedure and cannot be applied in light of the rights of Defendant to Due Process and Confrontation; and
5) Dismissing the charges against Defendant as the State’s destruction of Defendant’s urine sample impermissibly shifts the burden of persuasion onto Defendant for a key element of the offenses with which he is charged.
A judge had previously ruled in our favor when presented with these issues. In a DWI case we brought to jury last July, the judge had ordered the blood test suppressed because the state had destroyed the blood sample. We had challenged admissibility based our client’s right to confrontation, among other things.
In his order, the judge explained why due process required him to suppress the state’s evidence:
Due process requires that a criminal defendant have the same access to information as the State when the State offers the result of a scientific test. The State did not give Defendant an opportunity to stop destruction of this evidence. If the State offers into evidence the blood-test report, the State must also call the person who prepared the blood-test report, and a person who can testify as to the chain of custody. Without access to the blood sample, Sickmann is denied the right granted in the rules of discovery to reproduce the state's test results. The reproducibility of scientific test results is an important factor when considering the reliability of the test results.
The judge also explained why the Sixth Amendment’s Confrontation Clause requires suppression:
The BCA's policy of destroying the blood or urine sample, therefore, eliminates [Defendant]'s ability to reproduce the blood test results and limits the methods available to him to challenge the reliability of those results. The scope of the [Defendant]'s cross-examination of the witnesses who prepared the test report is unconstitutionally limited.
The Sixth Amendment's guarantee that an accused shall enjoy the right to be confronted by his accusers is vindicated only upon effective and adequate cross-examination of those witnesses. The BCA's policy of destroying the blood sample after a predetermined period of time renders [Defendant]'s opportunity to cross-examine the state's witnesses inadequate and ineffective. Because [Defendant]'s cross-examination of the witnesses who prepared the blood test report is inadequate and ineffective in light of his inability to reproduce the results, his rights under the Confrontation Clause are violated and this violation precludes admission of the blood test report.
Accordingly, this Court must conclude that at subsequent trial of this matter, the blood test report of the BCA is inadmissible.
We will see if other judges understand the constitution as Judge A.P.
Today we conclude our four part blog series on independent testing and analysis. In parts two and three we discussed how independent analysis of the state’s blood and urine samples revealed inaccurate BCA test results. Today our series concludes with our posting of the administration of independent testing. We describe a case litigated last month where our client’s independent blood test refuted the state’s breath test.
INACCURATE DWI BREATH TESTS
We have revealed numerous problems with Minnesota’s Intoxilyzer 5000 breath test machine in this blog and elsewhere. Yet the BCA continues to claim the breath test machine yields accurate, valid and reliable results. With a little foresight, leading to the administration of an independent blood test, we are able to demonstrate the inaccurate breath test results.
The Intoxilyzer 5000 is designed to retain a portion of the breath sample collected in an apparatus called a “tox trap”, a silicon device that attaches to a connection on the back of Intoxilyzer. After a subject has supplied a breath sample, the machine blows the sample out an ejection port, to which the the tox trap is affixed. The operator then seals the tox trap, keeping the air within the tox trap so that it can be independently analyzed in the future.
Although Minnesota breath test machines have this capability, the Minnesota Bureau of Criminal Apprehension (BCA) decided against using a tox trap to preserve breath samples. As a result, we are unable to obtain an independent analysis of a subject’s breath as we are able to do with blood and urine samples.
We don’t let the BCA’s decision to discard critical evidence prevent us from fully representing our clients. While we can’t independently analyze a breath sample, we are able to obtain an independently collected sample under Minn. Stat. sec. 169A.51, subd 7 (b). The statute states:
The person tested has the right to have someone of the person's own choosing administer a chemical test or tests in addition to any administered at the direction of a peace officer; provided, that the additional test sample on behalf of the person is obtained at the place where the person is in custody, after the test administered at the direction of a peace officer, and at no expense to the state.
Mark’s DWI Breath Test Case & Independent Blood Test
In a case I litigated last month, we introduced the results of my client’s independent blood test to demonstrate the breath test results were inaccurate. My client was arrested for DWI. He had called me before giving a breath test. During the “midnight call” I arranged for him to obtain an independent blood test. Mark submitted to the breath test which showed his alcohol concentration was .11, well above the legal limit. His independent blood test, administered two hours and 20 minutes later was .04.
The two test results cannot be reconciled.
The average burn off rate recognized by forensic scientist (including the Minnesota Bureau of Criminal Apprehension) is .015/hour. Multiplying .015 by 2 1/3, we had a total “burn off” of .035 during the time between the breath test and the blood test. Subtracting the burn off of .035 from .11, the breath test result should have been .075 at the time the blood was drawn – under the legal limit! The breath test result was very inaccurate.
Conversely, if we were to add the total burn off of .035 to the .04 blood test result, we would see that my client’s actual alcohol concentration by blood at the time of the administration of the breath test was .075!
We are well aware of Minnesota’s Intoxilyzer 5000 software problems. The problems deal with sampling, volume measurement and specificity. The BCA continues to insist the test is accurate. This demonstrates the Intoxilyzer 5000’s problems are well beyond source code issues, it does not provide accurate test results. Only by obtaining an independent blood test were we able to prove the breath test inaccurate.
This week we present our blog series about the value of obtaining independent tests and conducting independent analysis to reveal inaccuracies in government testing. This year alone our firm discovered cases where the Minnesota BCA has reported inaccurate DWI test results.
Yesterday, we told you how independent analysis of the state’s blood sample in a case last month revealed that it was inaccurate. The BCA reported our client’s blood alcohol concentration was over the legal limit of .08 and independent analysis by a local reputable lab showed it was actually .078 – under the legal limit.
Today our series continues with urine testing. We describe two separate cases from this year where the prosecutors agreed to dismiss charges as a result of our independent analysis of the state’s sample. In one of the cases, however, the results were actually higher than what the BCA reported.
INACCURATE DWI URINE TESTS
We have blogged extensively that urine testing is not generally accepted by the scientific community as a valid and reliable means of measuring impairment or determining the amount of alcohol in a person’s body. That is another topic. This blog posting addresses analyses of the samples.
When a urine sample is collected for DWI prosecution, the lab must ensure the evaluation of the sample conforms to those procedures necessary to ensure the test results are valid, accurate and reliable. It appears that the Minnesota BCA does not share this view.
Eric’s Urine Test Case
In January we tried Eric’s urine case to jury. Before trial we had the state’s urine sample analyzed by an independent lab. The Minnesota BCA had reported the urine alcohol concentration as more than .08. The independent test result was a .07, below the legal limit.
The information was sufficient to convince the prosecutor to dismiss the .08 charge. The key evidence in most DWI trials – the state’s DWI alcohol sample – became irrelevant. With the critical evidence removed from the case, we easily prevailed on the impaired charge and the jury acquitted Eric. See, First Not Guilty Verdict of 2010: Hennepin County Jury Acquits Man of DWI Charges. I don’t know if the outcome would have been the same without the independent analysis of Eric’s urine sample.
James’ Urine Test Case
While we are unaware of the precise reason for the discrepancy between test results in Eric’s case, we are aware the BCA procedures are lacking as they do not ensure the test results are scientifically valid, reliable or inaccurate. For example, glucose – a sugar found in one’s urine – may ferment, artificially increasing an alcohol concentration test result. Reputable labs promulgate procedures to check for glucose and avoid reporting tests that may be contaminated with the sugar.
Nationally recognized forensic scientis, Dr. Staubus, recently provided me with the State of Wisconsin’s procedures it implemented to ensure test samples are not contaminated with glucose. Wisconsin, unlike Minnesota, employs significant requirements to ensure glucose does not interfere with valid and reliable test results. They include lab technicians to:
1. Check all ethanol-positive urine specimens for the presence of glucose with a Keto-diastix reagent strip. Record the Keto-diastix result on the sample submission form (implied consent specimens) or internal tracking form (MVD, death investigation specimens).
2. If a urine specimen is glucose-positive, store a room temperature for at least two days and re-analyze for ethanol concentration. If the ethanol concentration has increased by 5% or more, the ethanol result is not reported and an appropriate comment is placed on the report.
The BCA claims that because each urine kit contains sodium fluoride, it need not promulgate procedures for collection, storage and transportation of urine samples to prevent fermentation. For the same reason, it need not promulgate procedures to check for glucose.
We proved the BCA wrong. James was arrested for DWI and given a urine test. The BCA reported the alcohol result as .16. James was adamant the result could not be correct. We sent the sample to an independent lab to be retested. The independent test result was .18. The urine alcohol concentration had increased by more than 12 percent! As I explained in a previous blog post, More Issues with DWI Urine Testing: Fermentation, we demonstrated that fermentation can and does occur. Once we provided the prosecutor documentation of our independent analysis, he dismissed all the DWI charges.
In both Eric’s and James’ cases, we were able to prove the state’s tests results were inaccurate due to independent analysis of the state’s samples. We were able get the .08 DWI charges dismissed and prevailed in both cases.
Tomorrow in the final post of our four part series, we address a different method of checking the accuracy of the state’s alcohol test. Unlike the previous posts where we covered independent analysis of the state’s samples, we will discuss how administering an independent test at the time of arrest may provide valuable information in the defense of a DWI breath test case.
Yesterday, we blogged about the serious deficiencies of our nation’s forensic science system. We noted that although Minnesota’s crime lab has escaped wide spread scandal (notwithstanding the source code debacle), anecdotal evidence has emerged indicating the Bureau of Criminal Apprehension (BCA) is not immune from shoddy work.
Using independent analysis and independent testing, our firm discovered specific cases this year where the Minnesota BCA has reported inaccurate Driving While Impaired (DWI) test results. The BCA’s errors apply to all three DWI alcohol tests – blood, breath and urine. Today, we report on an erroneous BCA blood test result.
INACCURATE DWI BLOOD TESTS
Our client (“JM”) was arrested in February, 2010 for suspicion of driving while intoxicated in Ramsey County, Minnesota. The police asked JM to submit to a blood test and she complied. A paramedic withdrew the blood at the police station and mailed the blood sample to the Minnesota BCA for analysis. The BCA reported JM’s alcohol concentration to be .08, over the legal limit. The state revoked JM’s license to drive and charged her with Fourth Degree DWI.
We believe that good DWI defense attorneys never assume that government tests results are accurate. To verify JM’s BCA test results my firm had her blood retested by a reputable, independent lab. The results were astounding. The independent lab’s analysis revealed the BCA test results were inaccurate. The independent lab results were .078 – below the legal limit!
We have already had JM’s driver’s license reinstated and the incident removed from her driving record. With the benefit of the independent lab results of JM’s blood sample, I fully expect we will be successful in the criminal DWI case as well.
Blood testing is widely recognized as the “gold standard” for DWI alcohol testing. But a test is only as good as those who conduct the testing and only as reliable as the procedures they follow, including reporting the uncertainty in the test results (for an excellent article about metrology and reporting uncertainty, see The Truth About Forensic Science by Pennsylvania attorney, Justin McShane).
When investigating a blood test case, DWI lawyers should obtain not only the final lab reports, but also such information as all Quality Control tests used; all Quality Control tests performed on the test kit; any and all records relating to the test results; Chain of Custody records; the actual Gas Chromatograms; and Proficiency Records or results of proficiency tests for the BCA lab and the analyst who conducted the test.
Finally, attorneys should consider having the government’s DWI blood test results independently evaluated. In many cases, your clients may gain their freedom through independence.
Tomorrow in part three of our series on independent testing and analysis: DWI urine test results.
Our society has a blind faith in government forensic test results. The public’s confidence is particularly fervent in drunken driving cases. This confidence in government tests, however, is unfounded.
In 2009, the National Research Council reported serious deficiencies in the nation's forensic science system and called for major reforms and new research. It discovered that mandatory certification programs for forensic scientists were lacking, as were strong standards and protocols for analyzing and reporting on evidence. It found a scarcity of peer-reviewed studies establishing the scientific bases and reliability of many forensic methods.
Media reports provide support for the 2009 study. Major crime labs around the country have been exposed for unscrupulous behavior, resulting in erroneous, untrustworthy forensic testing. For example:
In Washington, a judge found “ethical lapses, systemic inaccuracy, negligence and violations of scientific principles” in the state’s crime lab and threw out hundreds of breath tests.
The mayor completely shut down the Detroit crime lab after voluminous errors were discovered.
Colorado Springs metro crime lab’s blood alcohol results were just plain wrong.
San Francisco’s crime lab is in the midst of a scandal which jeopardizes “thousands of cases.”
Minnesota’s crime lab, the Bureau of Criminal Apprehension (BCA), has thus far escaped wide spread scandal (notwithstanding the source code debacle). Still, it is not immune. Anecdotal evidence has emerged, signaling similar problems exist in Minnesota.
This year, our firm has discovered the Minnesota BCA has reported inaccurate test results in specific cases with all three of its DWI alcohol tests: blood, breath and urine. In the following three parts of our series, we will provide information about these cases demonstrating that individual drivers can help protect themselves through both administering independent tests and performing independent analysis of the state’s DWI alcohol samples.
Part 2: BCA Reports Inaccurate Blood Test Results
Part 3: BCA Reports Inaccurate Urine Test Results
Part 4: Intoxilyzer 5000’s Inaccurate Breath Test Results
Minnesota uses three types of chemical test to investigate DWI cases. There are breath tests on the Intoxilyzer 5000EN. Then Minnesota has its unique take on urine testing. The third type of test is the blood test; a type of test used in nearly every state for DWI prosecutions and considered the “gold standard” with respect to value as evidence.
Despite the massive problems with the Intoxilyzer, and the overwhelming criticism of its urine testing regime, the Minnesota Legislature passed a bill and signed into law by Governor Pawlenty, seriously undermining its last, best chance at equitably enforcing our DWI laws. Starting July 1, 2010, it appears that almost anyone a police officer chooses can draw a driver’s blood - not just registered nurses, EMTs, and the other specifically listed persons currently authorized by statute. The law protects them from civil suit if they were to cause infection or other injury.
This is troubling for numerous reasons, the least of which is the fact that blood draws, if improperly performed, can be painful, traumatic, and can transfer infectious diseases. Moreover, the current law is likely unconstitutional.
Currently, blood tests for evidentiary purposes are deemed constitutional - but not by much. In the Supreme Court case that first authorized these types of blood draws, the Court clearly explained that such a test is only reasonable where it is “taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions that would arise is a search . . . were made by other than medical personnel or in other than a medical environment.”
Police officers with limited training have routinely drawn blood in Cottage Grove, Woodbury and a few other jurisdictions. We expect that to expand. Soon, that Supreme Court’s warning 45 years ago will be ignored, at least in Minnesota. The Legislature just legalized a practice that has opened the door to roadside blood tests by officers. Instead of blood drawn “in a hospital environment according to accepted medical practices,” we fully expect cops to routinely suck drivers’ blood on the hood of a filthy squad car at the side of the road. Rest assured, we plan on fighting this law at the first available opportunity.
At Ramsay Results, part of our job is to keep current on the latest changes in the law, so that we can effectively represent our clients. If you’re arrested for a DWI - especially if the arrest involves a blood test - contact Ramsay Law Firm immediately.
Minnesota’s DWI law (Chapter 169A) consumes 186 pages on Westlaw. By comparison, the entire First Degree Murder law easily fits on a single page.
Without an attorney who has the experience, knowledge and skills in the field of DWI law, you run the serious risk of losing what otherwise should be a winning case. This is especially true when it comes to the some of the arcane and obscure rules that apply in the civil “Implied Consent” case that trails along with almost every criminal DWI case.
In the context of a criminal case, any attorney worth his or her salt should know that the government must prove that an allegedly intoxicated driver was either driving, operating, or in “physical control” of a motor vehicle.
What most attorneys don’t know - probably because it isn’t even listed in a Minnesota statute - is that the State is alsorequired to prove that a person was driving, operating or in physical control of a vehicle in the civil Implied Consent case. This is an issue that can win cases, but first you have to recognize that the issue exists!
The civil implied consent law seems to limit the issues a driver may raise at the implied consent hearing. Note that none of the Implied Consent Statute does not permit a driver to challenge whether he or she was actually driving. Instead it permits a driver to challenge only whether the police officer had “probable cause.”
The scope of the hearing is limited to the issues in clauses (1) to (10):
(1) Did the peace officer have probable cause to believe the person was driving, operating, or in physical control of a motor vehicle or commercial motor vehicle in violation of section 169A.20 (driving while impaired)?
(2) Was the person lawfully placed under arrest for violation of section 169A.20?
(3) Was the person involved in a motor vehicle accident or collision resulting in property damage, personal injury, or death?
(4) Did the person refuse to take a screening test provided for by section 169A.41 (preliminary screening test)?
(5) If the screening test was administered, did the test indicate an alcohol concentration of 0.08 or more?
(6) At the time of the request for the test, did the peace officer inform the person of the person's rights and the consequences of taking or refusing the test as required by section 169A.51, subdivision 2?
(7) Did the person refuse to permit the test?
(8) If a test was taken by a person driving, operating, or in physical control of a motor vehicle, did the test results indicate at the time of testing:
(i) an alcohol concentration of 0.08 or more; or
(ii) the presence of a controlled substance listed in schedule I or II or its metabolite, other than marijuana or tetrahydrocannabinols?
(9) If a test was taken by a person driving, operating, or in physical control of a commercial motor vehicle, did the test results indicate an alcohol concentration of 0.04 or more at the time of testing?
(10) Was the testing method used valid and reliable and were the test results accurately evaluated?
Despite the statutory limitations to the contrary, drivers can and should challenge whether the state can prove they were driving when appropriate. Many attorneys miss this since the statute does not seem to permit it.
Too many attorneys give a passing glance to the maze of DWI statutes, shrug their shoulders, and decide to plea their clients and outright waive the right to a hearing. At Ramsay Results, we’re always one step ahead, looking beyond the law to make sure that any issue that can be raised, will be raised. It’s how we practice law - and it’s how we get results.
Many consider the test refusal law to be unbeatable. The law is not straightforward and is difficult to understand. A lawyer well versed in the law, science and facts of your case can beat the crime of test refusal.
The law as it exists today came about to close a loophole in Minnesota’s DWI law. Decades ago, people refused to submit alcohol testing which limited the evidence available to the state. Then, the state passed the "Implied Consent Law." Under the original law, upon refusing to test the state would revoke a person’s license for one year. This caused most people to submit to testing. To increase those numbers, the state made it a crime to refuse testing under the Minnesota Implied Consent Act. This crime was treated the same as taking the test and failing. Later, when the state amended the criminal DWI law making the consequences more severe for those over .20, many drivers began to refuse to take the test rather than risk facing enhanced charges for a high alcohol test result.
Once drivers became more aware of the enhanced charges for a .20 or greater, more drivers again began refusing DWI tests rather than risk facing the more serious consequences. The state closed that loophole earlier this decade by making test refusal a crime more serious than merely failing a DWI alcohol test over .08 or more.
As a result of the piecemeal amendments to Minnesota’s Impaired Driving Laws, the laws have become an unconstitutional, knotted mess.
The refusal provision states:
“It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation of license).” Minn. Stat. § 169A.20, subd. 2 (2008).Under the law, the refusal crime is more serious than taking and failing the test.
Is Minnesota’s DWI Test Refusal Law Constitutional?
Minnesota is one of fifteen states that make it a crime for a driver to refuse to submit to blood, urine or breath testing after being arrested for a DWI.The rationale behind the criminal law is obvious: to coerce drivers into providing an alcohol test to increase the likelihood of conviction.
I believe the law is unconstitutional as it compels citizens to waive their right to warrantless searches and seizure.I argued this before the Minnesota Supreme Court last year, but the Court sidestepped the issue in State v. Netland.The court left undecided one question, as articulated by the dissent.
Minnesota Intoxilyzer 5000: Using Science to Beat a Test Refusal
Fortunately, DWI lawyers who are particularly skilled and knowledgeable about Minnesota’s Implied Consent DWI law may be able to beat a DWI test refusal charge when the driver submits to the Intoxilyzer 5000 breath test.
The local twin cities media has reported on how I’ve exposed flaws in the breath test software causing the Intoxilyzer 5000 to erroneously deem a person to have refused to submit to a breath test.The documents I’ve discovered and the testimony I’ve elicited have resulted in a federal judge ordering CMI to disclose the source code to Minnesota defense attorneys.
A driver is not likely to beat a breath test refusal charge without a Minnesota lawyer who knows the scientific flaws of the Intoxilyzer 5000, the issues involving the source code and how the state’s experts will testify in court.
Blood Tests and Urine Tests: Using the DWI Law’s Provisions to Beat the Refusal Law
A client hired me last month in a blood test refusal case.I thought the facts from the case can help explain how to beat a test refusal to test charge.
My client was stopped by police and arrested on suspicion of driving while intoxicated.The officer took her to a hospital for a blood test.The officer asked my client if she would submit to a blood test and my client agreed.
Here are relevant facts from the officer’s police report:
I began to read the Implied Consent document to “Kim.” Kim agreed to take a blood test.An RN assisted me with the blood draw.I opened the blood kit and began filling out the paper work. Kim was physically pulling away from the nurse when she put the tourniquet on her arm. Kim said she didn't like needles. I explained to Kim that this was a registered nurse and she will be fine.Kim would not let the nurse touch her.
Kim would physically pull away every time the nurse would touch her arm. I explained to Kim that she already agreed to take the blood test and that if she did not allow the nurse to take blood that it will be considered a refusal.
Another nurse was called to assist. The nurse said she will hold her arm straight for her while the other nurse inserts the needle. Kim lifted her feet off the floor almost kicking the nurse in the stomach, RN told Kim that the other nurse was pregnant and that she needed to settle down. Kim said “just do it.”RN attempted again to draw blood and Kim pulled away swinging her arms. RN said that she would attempt one more time because she was making it dangerous with the needle. Kim again physically pulled away from the nurse, RN said she would not draw blood because she was physically uncooperative and it was dangerous.Due to Kim’s aggressive behavior all testing was stopped.
Kim refused to test.
Does this violate Minnesota’s Implied Consent/DWI Test refusal law?No.
Under the Statute, “action may be taken against a person who refuses to take a blood test only if an alternative test was offered and action may be taken against a person who refuses to take a urine test only if an alternative test was offered.Minn. Stat. § 169A.51, subd. 3 (emphasis added).
It is clear that the legislature never intended for a person to be subject to criminal charges simply for refusing a blood test or urine test without being offered an alternative.
In this example, although Kim said she would submit to a blood test, she prevented the RN from withdrawing blood and she refused the test.However, the officer should have offered Kim the opportunity to submit to a urine test before declaring, “Kim refused to test.”
Because no action can be taken against a person for refusing to submit to a blood test unless an alternative test is offered, the judge should dismiss the test refusal charge.As a footnote, the state took my client’s car in this very real case.Once the judge dismisses the refusal charge the state will be forced to return my client’s car to her.
If you have been charged with DWI, DUI or Refusal to Submit to Testing, call Chuck Ramsay immediately.
Today, Judge Abrams issued his Case Management Order (CMO) for Minnesota's First Judicial District's Intoxilyzer 5000 Source Code litigation. The order sets a final hearing on the source code issue for May 10-21, 2010.
WHEREAS, the Court has determined that this Case Management Order
("CMO") is appropriate and will be of assistance in the efficient management of this litigation; IT IS HEREBY ORDERED, that this CMO be and hereby is entered as follows:
1. Case Designation
Every filing shall contain, in its caption, the Master File Number 70-CV-09-19459.
In addition, for each separate case the individual originating County file number assigned to each case must also be included in the caption for any filing which pertains to an individual case. Filings in the Master Court File shall be made as set forth in the following paragraph. Attached hereto as Exhibit A is a listing of the original file numbers and other pertinent information for each case which is subject to this Order.
Allcases and all filings for the Master Case File herein shall be directed to the attention of Lori Brandon, Court Administration Scott County. Regardless of where the case was initially filed, all cases Subject to the Consolidation Orders issued in the First District by the Honorable Edward Lynch, as attached in Exhibit A, are to comply with the terms of this CMO. All filings for the individual matters shall be filed with the Court Administrator's Office in the originating county.
2. Applicability of Order
This Case Management Order ("CMO") applies to all pre trial, and trial proceedings concerning the "Source Code" issue in the Implied Consent Master Case and in all cases listed in Exhibit A. Upon resolution of the "Source Code" issue, each case shall be returned to its originating County for such further trials or hearings as may be required.
3. Filing and Service of Papers
a. Master Service List.
Except as otherwise provided for herein, all papers or pleadings filed with the Court or served upon a party shall be served as described in this CMO on counsel for all parties to this action in accordance with the Master Case List, attached hereto as Exhibit A. For the purposes of economy, it shall be sufficient to state in a certificate of service that the relevant document was served on counsel for all parties and on unrepresented parties listed on the Master Case List current as of that date. The Master Case List may be incorporated by reference with express reference to the revised date thereof, and need not be attached to the certificate of service. The document served must be addressed to the individual attorney(s) or unrepresented party(ies) on the Master Case List.
b. Method and Timing of Service.
Service of all pleadings, motions, deposition notices, requests for discovery and other papers required to be served upon counsel for the parties or unrepresented parties (collectively "papers") shall be affected upon the parties with copies to all persons on the Master Case List by electronic mail. Papers served by electronic mail shall be attached to emails as Adobe Acrobat (.pdf) files or Microsoft Word (.doc) files. To the extent a party is unable to effect service by electronic mail to counsel for any party or any party not represented by counsel, service may be affected by facsimile, overnight mail, or regular mail. Large exhibits, affidavits, declarations, or other supplemental documents may be served by overnight mail. With respect to any papers served as described in this paragraph 3b, three (3) days shall be added to any time computed under the Minnesota Rules of Civil Procedure or the Minnesota General Rules of Practice for any party to respond to any such papers.
All Orders of the court in connection with this case shall be posted on the First Judicial District Website at http://www.mncourts.gov/districU1/?page=3753 and shall also be simultaneously transmitted to Liaison Counsel for service upon parties in accordance with the procedures set forth herein.
c. Filings.
The original of every pleading and motion shall be filed with this Court along with proof of service on all counsel and unrepresented parties. The original of each filing shall be directed to the Master File; one copy shall be directed to the originating county for filing in the individual case file. A courtesy copy of every pleading, motion, or letter shall also be directed to Judge Abrams, C/O Daniel J. Sagstetter, Judicial Law Clerk. The parties are advised that for each case in which a fee may be required for filing, (e.g. motion fee, fax fee) THE FEE MUST BE PAID FOR EACH CASE INWHICH RELIEF IS BEING SOUGHT. The fee should be submitted to
Court Administration in the originating county for each individual file. No additional fee is required for the service copy directed to the Master File.The filing of discovery materials with this Court shall be governed by the Minnesota Rules of Civil Procedure, except that the original of all such papers which are not filed with this Court under such rules shall be kept in the offices of counsel responsible for generating such pleading, motion or discovery.
d. Correspondence.
All materials, such as correspondence, which are not due to be docketed, shall be sent directly to the chambers of Judge Abrams. Correspondence and other materials will only be accepted if they are in regards to general administrative matters. The parties shall not submit correspondence regarding substantive matters or any other substantive materials directly to the Judge assigned to the case unless requested by or authorized by Judge Abrams. The corresponding party shall contemporaneously forward a copy of all correspondence and other materials sent to Judge Abrams to all counsel and unrepresented parties by electronic mail or regular mail, as may be necessary.
e. Documents Filed with the District Court.
Notwithstanding the foregoing, any motion genuinely requiring emergency relief shall be delivered directly to the chambers of Judge Abrams. Any such document shall also be served electronically or faxed to all parties on the date of delivery. Proof of service shall be filed within (5) five business days thereafter.
4. Discovery
a. Avoiding Redundancy.
All parties should use their best efforts to avoid unduly duplicative submissions and propound joint discovery requests to the end of minimizing the need for any other party to perform repetitive file searches or interviews of employees and agents on the same topics.
b. Document Requests.
The parties shall not unreasonably refuse to grant extensions of time if reasonably required due to the voluminous number of documents being produced or other necessity associated with their document production.
i. Place of Production and Procedures.
Unless otherwise agreed by the parties, parties shall produce documents for inspection and copying, to the extent practicable, in the form and manner in which the documents have been maintained in the ordinary course of business or in which they previously have been maintained for production in litigation. To distinguish effectively among the documents designated for copying by the parties, each page of each document copied by any party shall bear a unique document identification number, with a unique prefix which identifies the party producing the document ("Bate Stamps" or "Bate Label"). Where documents or portions of documents are withheld, the parties shall, either through the numbering system or as otherwise provided in this Order, to the extent reasonably practicable, identify the number of pages withheld in a manner sufficient to indicate their location in the file being produced. Where part of a page is redacted, both the fact and location of the redaction, and the size or extent of the redaction shall be made clear on the face of the document.
Within a reasonable time before production, the producing party shall advise the inspecting party of the approximate volume of the documents and a general description of the types of files or other materials involved. Each party shall produce its documents at its option: (a) by production of originals as they are kept in the ordinary course of business; (b) by production of as legible as possible photocopies in the same format; or (c) by electronic means or other computerized storage. Notwithstanding these provisions, any party may request to inspect the original of any document, communication, or thing produced and the parties shall make arrangements for such inspection within ten (10) days of the request.
The location of the production shall be at the place where the documents are kept in the ordinary course of business, at the office of the producing attorney, or as otherwise agreed by the parties, provided, however, that all such document productions shall take place in the United States.
ii. Privilege Log.
If a party determines that a document responsive to a document request is subject to attorney/client privilege, attorney work product protection, or any other form of privileges or protection, the following method of handling the privileged or protected writing shall be followed.The producing party may withhold the privileged or protected document and must identify the withheld document on a privilege log which shall be provided to the requesting party and all other parties as soon as practicable, but no more than thirty (30) days following the date on which the producing party is due to commence physical production of the requested documents. If after completion of production pursuant to a particular demand for inspection the producing party discovers additional responsive documents and determines any of them to be subject to attorney/client privilege, attorney work product protection, or any other form of privilege or protection, the producing party may withhold any such privileged or protected document and must identify the withheld document on a privilege log which shall be provided to the requesting party as soon as practicable but in no case more than thirty (30) days after the documents are discovered. Likewise, to the extent any material within a document otherwise producible contains privileged or protected information, the document shall be produced subject to redaction of the subject privileged and protected material and shall be listed on the privilege log. All privilege logs shall identify each privileged document or work product by providing the Bates Label range, date, author(s), recipient(s), the subject matter of the document withheld or information redacted and the nature of the privilege or work product protection asserted. Nothing in this section shall preclude a party from challenging a claim of privilege.
c. Confidentiality Order.
All documents and other discovery materials and testimony produced or provided in this action may be subject to the terms and provisions of the Protective Order, in the form as attached as Exhibit B hereto, which has been entered in each case.
d. Inadvertent Production of Privileged Information.
If a party inadvertently produces information or documents that it considers privileged or protected material, in whole or in part, or learns of the production of its privileged or protected material by a third-party, the party may retrieve such information or documents or parts thereof, memoranda and other material as follows:
(1) Any assertion of inadvertent production shall be made as soon as practicable, but in any case within ten (10) days of the date the party discovers that it, its agents or attorneys, or a third-party has inadvertently produced the privileged document. The party asserting inadvertent production must provide written notice to all parties on the Master Case List via electronic mail or as otherwise provided herein that the party claims the document, in whole or in party, to be privileged or protected material; in addition, such notice must state the nature of the privilege or protection and the factual basis for asserting it. No assertion of inadvertent production will be made less than thirty (30) days before trial or fourteen (14) days after service of a trial exhibit list, whichever comes later.
(2) Upon receipt of such notice, all parties who have received copies of the document shall, within five (5) days thereafter, confer with the producing party and discuss how to resolve the issue. If no agreement is reached, the producing party may request reasonable relief from the Court, including an order that all copies of inadvertently produced documents shall be returned to the producing party, destroyed or otherwise be made available for procurement by the requesting party. Parties who received copies of inadvertently produced documents may oppose the granting of such relief on any permissible basis, including requesting an order that the inadvertently produced documents are not privileged and do not constitute protected attorney work product.
(3) In the event that only part of a document is claimed to be privileged or protected, the party asserting inadvertent production shall furnish to all parties redacted copies of such document, removing only the part(s) thereof claimed to be privileged or protected, together with such written notice.
e. Mutual Use of Discovery.
To help avoid redundancy, all discovery served by any party inure to the benefit of and are enforceable by any other party. The settlement, release or dismissal by any means of any party propounding such discovery will not in any way limit or extinguish any other party's obligation to comply with the discovery.
5. Motion Practice
Except as otherwise provided by the Court, pretrial motions in this litigation shall be governed by the Minnesota Rules of Civil Procedure and by the General Rules of
Practice for the District Courts, provided that these latter rules are modified procedurally as follows:
(1) Motion hearing dates shall be obtained directly from Jan Vohnoutka at Scott County Court Administration;
(2) Proposed orders for dispositive motions shall not be submitted unless specifically requested by the Court;
(3) The moving party shall provide a certification of an attempt to meet and confer to resolve their dispute, (such as is described in Rule 115.10 of the Rules of General Practice for the District Courts) which shall be in writing and shall be filed separately at least two (2) days prior to the hearing date.
Counsel shall attempt to coordinate a hearing date and the notice of motions for hearing on a date cleared with Jan Vohnoutka at Scott County Court Administration.
Nothing shall restrict any party's right to apply to the Court for an order shortening or extending time or page limitations on a motion upon a showing of good cause, but only after making good faith efforts to resolve the issue among counsel.
6. Coordination Among Parties
The Court expects cooperation among the parties to coordinate motion practice, discovery, trial, or otherwise to minimize the expense in this litigation. The parties shall, to the maximum extent practicable, avoid duplicative motions, briefs and discovery ("filings") consistent with each party's individual interests. Since many parties have a commonality of interest as to many issues in the actions, they may serve joint discovery and file joint submissions with the Court and/or adopt, join in or support any motion made or discovery propounded by another party simply by so noting in writing.
Each party has an affirmative duty to immediately notify the involved party upon receipt of any misdirected attorney/client or other privileged communication or work product document, outside the ordinary course of discovery. Upon written request, the receiving party shall either (a) return such communication or other document, along with any and all copies, to the involved party, or (b) provide correspondence or affidavit to the involved party attesting to the fact that such communication or documents and all copies thereof have been destroyed.
7. Depositions
a. Cooperation.
The parties will use reasonable efforts to schedule depositions by agreement. To that end, the parties will participate in bi-weekly discovery conferences by telephone for the purpose of making best efforts to select mutually convenient dates and places for the initial round of depositions, identifying witnesses and arranging other matters. Unless otherwise agreed, formal notice of scheduled depositions is required. Unless exigent circumstances exist, the parties will be advised of a deposition at least ten (10) calendar days before a deposition is scheduled to commence.
b. Non-Party Depositions.
Counsel shall attempt to resolve with any non-party deponent the identification for production and subsequent production of any documents being subpoenaed. Whenever possible, this process shall be completed no later than seven (7) days before the date on which the deposition has been scheduled. All counsel shall be given notice of any documents identified for production pursuant to subpoena and shall have the right to inspect and copy, at each inspecting party's expense, whatever documents are produced by a non-party in response to a subpoena.
Upon request, a party shall conduct a search of all records that may disclose the present address of any former employee and shall provide such information to the requesting party as soon as practicable. Nothing in this Order shall preclude any party, if it so chooses, from obtaining the attendance of any former employee or officer of another party for deposition by subpoena in the first instance.
c. Stipulations.
Unless otherwise noted on the record, the following stipulations shall apply to all depositions in these actions:
(1) Any objection by a single party shall be deemed an objection by each and every similarly situated party;
(2) Corrections to a deposition transcript shall be listed on an errata sheet, copies of which shall be served on all parties by counsel for the deponent or the deponent, within thirty (30) days following receipt of the deposition transcript;
(3) To the extent practicable, exhibits shall be attached to the original transcript. Where the form or volume of exhibits makes attachment to the transcript impractical, the custody of such exhibits shall be maintained at the office of the attorney taking the deposition or the court reporter and such exhibits shall, after reasonable notice, be subject to inspection and copying by any party during normal business hours or by appointment;
(4) The parties shall strive to select and retain court reporters that can produce transcripts in both manuscript and computer-readable format, other agreed format. The parties may stipulate to maintain an online repository for all depositions taken in these cases subject to limitations on accessibility as may be determined by the parties.
d. DepositionSchedule.
With respect to aged or infirm witnesses, counsel shall abide by the reasonable request of such witnesses with regard to timing and availability for deposition testimony. The parties will undertake all reasonable efforts to conduct depositions in an efficient, cost-effective and expedited manner.
e. Attendance and Interrogation.
All parties shall be entitled to be represented at every deposition and to inquire of a deponent through their counsel. A former employee or officer may be represented at his or her deposition by counsel for the former employer. In order to facilitate necessary arrangement for attending counsel, not less than two (2) days prior to the commencement date of a deposition, any counsel intending to attend the deposition shall use its best efforts to notify the noticing party and counsel for the deponent.
f. Time and Location of Depositions.
Depositions may be held Monday through Friday, and shall commence no earlier than 9:00 a.m., and conclude no later than 5:00 p.m. local time, unless otherwise agreed between counselor ordered by the Court. No deposition shall be scheduled for more than two (2) consecutive days absent agreement by the parties or order of the Court. A deposition may, however, proceed for a third consecutive day without agreement of the parties or order of the Court if there is at least eighteen (18) hours between the end of the second deposition day and the commencement of the third. To save expense and travel time, all sessions of the deposition of a single deponent shall, to the extent consistent with the witnesses' schedule and health and the deposition schedule, and unless otherwise agreed, proceed on successive weekdays and for the full deposition day until completion. Except as the parties may agree, no deposition shall be scheduled on the following dates: Court hearing dates, Martin Luther King, Jr.'s Birthday, President's Day, Good Friday, Passover (the first two days), Memorial Day, Independence Day (including the preceding Monday if it falls on a Tuesday or the following Friday if it falls on a Thursday), Labor Day, Rosh Hashanah (two days), Yom Kippur (two days), Columbus Day, Veterans Day, and Thanksgiving (Wednesday, Thursday and Friday). Depositions of witnesses residing outside the United States shall not be scheduled on national holidays in the witness' home country. In addition, no depositions shall be scheduled between December 21, 2009 and January 4, 2010 except upon agreement of the parties.
g. Out of State Depositions.
In order to facilitate the orderly taking of any such foreign deposition, the
Court hereby orders commissions to be granted to take out of state depositions of parties and non-party witnesses, at such times and in such places as are agreed upon by counsel, such commissions to be issued to persons duly authorized by the law of the foreign state to take such testimony. This Order appointing commissions to take foreign depositions shall be applicable to all out of state depositions taken in this action, without the need for any party to file any additional motion for appointment of a commission to take any out of state deposition. The parties will provide the Court with a template order, or otherwise with other necessary appropriate orders respecting the appointment of commissions.
h. Exhibits.
To the extent practicable, all parties intending to question a witness at a deposition with respect to documents shall provide a reasonable number of copies of such documents for the use of the other parties in attendance at the deposition. Exhibits should be identified by the name of the witness and numbered consecutively in each deposition.
i. Objections.
The only objections that shall be raised at any deposition are those involving a privilege or other protection against disclosure or some matter that may be remedied at the time, such as to the form of the question, that the question has previously been asked and clearly answered, or the responsiveness of the answers. Objections on any other grounds shall be avoided and are not waived but preserved until trial. All objections shall be concise and must not suggest answers to the deponent. So called "speaking objections" are not permitted. Except as to an objection on grounds of privilege, any objection made by one party reserves that objection for all other parties and duplicate objections shall not be made.
j. Directions to Deponent Notto Answer.
Directions to a deponent not to answer are improper except on the grounds of privilege, confidentiality, or other similar protection, or to enable the party or deponent to present a motion to the Court for termination of the deposition or protection such as under Minnesota Rule of Procedure 26.03. When privilege, confidentiality or other protection is claimed, the witness shall nevertheless answer questions relevant to the existence, extent or waiver of the privilege, confidentiality, or other protection.
k. Immediate Presentation of Deposition Disputes.
Consistent with discovery concepts and objectives set forth above, if disputes arise during a deposition which the attorneys cannot resolve by agreement and which, if not promptly decided, will critically disrupt the discovery program or court-imposed schedules, the parties may submit the matter orally by telephone to the undersigned if available.
8. Avoidance of Unnecessary Duplication
Cooperation and communication among parties as ordered herein shall not constitute the waiver of any applicable privilege or be construed as evidence of wrongful conduct. In the event that any party is in genuine doubt about the legal effect of the communication and cooperation ordered herein, such party may seek the Court's clarification of the party's responsibilities before proceeding.
9. No Waiver of Privilege Due to Joint Efforts
Communications in connection with this case between and among counsel for the parties and/or their clients, including the exchange of documents and information, shall be deemed subject to the attorney/client privilege, work product protection, and any other applicable privilege or protection to the same extent as if the communication had taken place within one law firm or between one law firm and one client represented by that firm. Protection afforded by this Order will survive the conclusion of this litigation and the dismissal of any party from this action. If a party withdraws from any cooperative litigation efforts with other parties, previous communications among the withdrawing party and such other parties and all work product shared by or with the withdrawing party with respect to this action, will remain subject to any attorney/client privilege, work product protection, or other privilege that attached at the time the communications were made or the work product was shared. Any such withdrawing party is under a duty not to reveal information obtained through such cooperative efforts.
10. Rules and Procedures
This CMO supersedes any provision of the Minnesota Rules of Civil procedure
and General Rules of Practice for the District Court that are in conflict with the provisions of this CMO.
11. CMO Binding on Subsequently Added Parties
Any new party to this consolidated action after the date the CMO is entered up to and including February 16, 2010 shall be served with a copy of this CMO by Liaison Counsel and any subsequent Case Management Orders. Any such new party will be bound by this CMO and all other Case Management Orders unless it files a motion for relief with the Court within ten (10) days after service of this CMO and other case management order upon it. Upon the addition of any party to this action, the party adding the new party shall serve a copy of this CMO on counsel for the new party within five (5) days of the date of receiving notice of the identity of the new party's counsel.
12. Liaison Counsel
In recognition of the large numbers of prosecutors, petitioners, and defendants in this action and to promote sufficient communication between and among the parties and the Court, the parties will appoint counsel to serve as Liaison Counsel, designated as follows:
Marsh Halberg
Minnesota Society for Criminal Justice - Source Code Coalition
Lee Orwig
Minnesota Society for Criminal Justice - Source Code Coalition
Jeff Sheridan
Minnesota Society for Criminal Justice - Source Code Coalition
Chuck Ramsay
Minnesota Society for Criminal Justice - Source Code Coalition
Derek Patrin
Meaney&Patrin, PA
Kristi Nielsen
Minnesota Attorney General's Office
David Koob
Minnesota Attorney General's Office
Subject to the right of any party to present individual or divergent positions, the liaison counsel is vested by this Court with the following responsibilities and duties:
(1) Communicate with opposing counsel, communicate with all other counsel in its respective liaison group and receive orders, notices and correspondence from this Court and the District Court Administrator in any matter pertaining to this action;
(2) Promptly forward to all counsel for its respective liaison group copies of all documents from the Court or the District Court Administrator, not otherwise provided to them electronically, report to all counsel in the represented group on all meetings and communications with this Court or other liaison counsel;
(3) Organize and schedule meetings of counsel for joint action;
(4) Coordinate common discovery;
(5) Initiate action by the Court to remedy disputes among the parties;
(6) Participate in conference calls with this Court to resolve disputes and scheduling matters;
(7) Maintain a current copy of the Master Case List, and serve and file any updated Master Case Lists; and
(8) Perform such other duties as may be expressly authorized by further order of this Court or agreed to by counsel.
Liaison counsel shall not be deemed to speak for, act for, or bind any particular litigant or group of litigants absent express authority provided by such litigant or group.All counsel of record shall have an opportunity to present to this Court their respective views and opinions as to matters before this Court. The liaison counsel shall not be liable for any actions arising from their respective roles as such and this Court shall act to remedy any inadvertence as appropriate.
13. Pro Hac Vice Admission of Attorneys
Any lawyer admitted or currently licensed to practice before a Court of general jurisdiction in any state in the United States and who is specifically associated with a currently licensed Minnesota lawyer may be deemed admitted pro hac vice to practice before the Court in this litigation only. Other than those attorneys admitted pro hac vice prior to the date of issuance of this Order, attorneys may be deemed admitted pro hac vice upon completion of the following:
A. An Affidavit Setting Forth:
(1) His or her full name and non-Minnesota business address;
(2) His or her date and place of each state licensure;
(3) A representation that the affiant's license to practice law is current and is not under revocation, suspension, restriction or limitation in any other state of admission or in the federal courts, and that the affiant is an attorney in good standing in all states of licensure;
(4) A representation that the affiant is, or will promptly become, familiar with all applicable Minnesota court rules, procedures and requirements of professional conduct, and will follow and abide by such rules, procedures and requirements.
B. A Notice of Pro Hac Vice Representation Selling Forth:
(1) The non-Minnesota lawyer's full name and non-Minnesota business address, telephone number, facsimile number, and e-mail address;
(2) The name, address, telephone number, facsimile number and e-mail address of the Minnesota lawyer or law firm with whom the attorney will associate for purposes of this litigation;
(3) The name of each party whom the attorney will represent.
Such affidavit and notice of pro hac vice representation shall be filed with the Court Administrator of the originating county of the case within the First judicial District.
Notice of pro hac vice representation shall be served upon all counsel on the Master Case List.
14. Status Conferences and Scheduling
a. Status Conferences.
General status conferences shall be held at 1:30 p.m. every other Friday as needed from December 11, 2009 (excluding December 25, 2009) until no longer needed. The principal purpose of the general status conference is to discuss and resolve administrative issues common to all parties. Issues that affect only specific parties and that have no significant implications for other parties will be calendared for a separate hearing date or, if the status conference agenda permits, for 2:30 p.m. on a status conference date.
Not later than the preceding Friday before the status conference, liaison counsel shall confer and shall determine whether or not a status conference for the following Friday will be necessary. If they agree that such conference is not necessary, they shall cancel the conference and promptly notify the Court and the remaining parties of the cancellation. Ifliaison counsel decides to proceed with the status conference, they shall prepare a common agenda and shall notify all parties and the Court thereof not later than the close of the business day on the Monday preceding the conference date.
b. Scheduling.
In recognition of the complexity of the issues before the Court, the Court will discuss the progress of the parties in discovery and other matters at the status conferences and upon application of the parties jointly or unilaterally may amend or modify the scheduling order from time to time.
The following dates and deadlines shall apply to all actions subject to this CMO:
February 16, 2010- Petitioner expert disclosure deadline; non-expert discovery ends; final date for adding new cases to docket of consolidated cases
April 2, 2010- Respondent expert disclosure deadline
April 6, 2010 - Expert discovery begins
April 19, 2010 - All non source code pre trial issues are to be resolved
May 3,2010 - Expert discovery concludes
May 10-21, 2010 - Final hearing on source code issue
Dated 12.1.09 by The Court: Jerome B. Abrams, Judge of District Court
Exhibit B
State of Minnesota, District Court
County of First Judicial District
Petitioner vs. Commissioner of Public Safety, Respondent
Court File No.
Protective Order
WHEREAS, the U.S. District Court for the District of Minnesota has entered a
Consent Judgment and Permanent Injunction regarding access to the source code used in the operation of the Intoxilyzer SOOOEN ("Source Code"), the breath-alcohol testing instrument used to enforce the driving while impaired ("DWI") and implied consent laws in Minnesota. This Consent Judgment and Permanent Injunction requires issuance of a Protective Order as a precondition to obtaining access to the Source Code; and
WHEREAS, this Court has ordered that the Source Code be made available for inspection and review or has found the Source Code to be relevant or material in the above-captioned case; and
IT IS HEREBY ORDERED:
1. As used in this Protective Order, the listed terms have the following meanings:
"Attorneys" means counsel of record in this matter;
"Confidential" documents and information are documents or information designated Confidential pursuant to Paragraph 2 herein; and
"Source Code" refers specifically to the Source Code for the Intoxilyzer 5000EN used in the State of Minnesota.
2. A Party may designate any document "Confidential," including interrogatory responses, other discovery responses, or transcripts, based on a good faith belief that the document constitutes or contains trade secrets or other confidential information. Source Code is hereby designated as Confidential, except for that portion of the Source Code assigned and delivered to the State pursuant to the Settlement Agreement between the State and CMI dated June 1, 2009.
3. All Confidential documents and information shall be used solely for the purpose of the above-captioned matter, or as otherwise permitted by the federal Consent
Judgment and Permanent Injunction.. No person receiving such documents or information shall, directly or indirectly, use, transfer, disclose, or communicate in any way Confidential documents or information to any person other than those specified in Paragraph 4 herein and the federal Consent Judgment and Permanent Injunction.
4. Access to any Confidential document or information shall be limited to:
(a) The Court and its staff;
(b) Attorneys of record and their law finns;
(c) Persons shown on the face of the document to have authored or received it;
(d) Court reporters retained to transcribe testimony;
(e) The Parties to this case;
(f) Outside vendors (limited to professional copy services);
(g) Outside independent persons who are retained by or otherwise assist a
Party or its Attorneys to provide technical or expert services and/or give testimony in this action, and who are not, and have not been, employed by (as an employee, agent, or consultant) or otherwise affiliated with, any manufacturer of breath alcohol testing instruments within the preceding twenty-four (24) months.
5. Any outside independent person (as defined in Paragraph 4(g) herein) who receives access to the Source Code or other Confidential information shall execute a Non-Disclosure Agreement in the form prescribed in Paragraph 3(c) of the federal Consent Judgment and Permanent Injunction before receiving access to the Source Code or Confidential Information. In addition, any Attorney or Party (as defined in Paragraphs 4(b) and (e) herein) who receives access to the Source Code shall also execute a NonDisclosure Agreement in the form prescribed in Paragraph 3(c) of the federal Consent Judgment and Permanent Injunction before receiving access to the Source Code. Receipt of access to the Source Code pursuant to this Protective Order shall not constitute or convey any right, title, license, or other interest in any portion of the Source Code.
6. Non-parties producing documents in the course of this action may also designate documents as "Confidential" subject to the same protections and constraints as the Parties to this action. A copy of this Protective Order shall be served along with any subpoena served in connection with this action. All documents and information produced by such non-parties shall be treated as "Confidential" for a period of 15 days from the date of their production, and during that period any Party may designate such documents as "Confidential" pursuant to the terms of this Protective Order.
7. Any testimony or written report that contains Confidential documents or information will receive the same protections afforded to Confidential documents themselves. Confidentiality designations for testimony shall be made on the record or, where appropriate, by written notice to the other Party. It shall be the responsibility of the Party who noticed the deposition, called the witness, or seeks to introduce the evidence, to designate such testimony or information as Confidential. The testimony of any witness (or any portion of such testimony) that contains Confidential information shall be given only in the presence of persons who are qualified to have access to such information pursuant to Paragraph 4 herein.
8. Any Party or non-party that inadvertently fails to identify documents or information as Confidential in accordance with this Protective Order shall, upon discovery of its oversight, promptly provide written notice of the error and substitute appropriately designated documents or information. Any Party receiving notice of improperly designated documents or information shall act immediately to retrieve such documents or information from persons not entitled to receive such documents or information and shall return the improperly designated documents or information to the producing Party.
9. Any document designated Confidential or containing Confidential information that is filed with this Court, including any expert report, shall be filed under seal. Any Confidential information shall be redacted from such document or report before it is made publicly available.
10. No action taken in accordance with this Protective Order shall be construed to be a waiver of any claim or defense in the action or of any position as to discoverability or admissibility of any evidence in the case.
11. The obligations imposed by this Protective Order shall survive the termination of the above-captioned matter.
12. Any violation or breach of the terms and conditions set forth in this
Protective Order shall be grounds for any appropriate sanctions available under the law.
In August a SherburneCountyjury found my client innocent of all DWI charges in a blood test case. The state had reported his alcohol concentration was .16. We beat that case by showing the jury that the state did not follow the procedures necessary to ensure the results were valid, reliable and accurate. We also showed that our client was not impaired by alcohol.
Last week, an Anoka court ruled in favor of my client where his blood alcohol concentration was .19. “Andy” had rolled his pickup truck on I-35W in Blaine, Minnesota earlier this year. Because of his injuries, Andy was taken to the hospital where police ordered hospital staff to obtain a blood sample. An employee of the hospital staff complied. Police mailed the blood vials to the Minnesota Bureau of Criminal Apprehension (BCA) for analysis.
Under Minnesota’s Implied Consent Law, any person who has been trained as a physician, medical technician, emergency medical technician, registered nurse, medical technologist, medical technician-paramedic, medical laboratory technician, or laboratory assistant may administer a blood test.
In Andy’s case, the person who withdrew the blood was an “Emergency Department” Technician. ER Technician is not one of the enumerated qualified persons to draw blood under the implied consent statute. As a result the court held the blood test result inadmissible and rescinded my client’s driver’s license revocation.
Because the court ruled in our favor on that issue, the court did not need to address the other issues in the case: whether the officer denied my client the right to consult with an attorney before deciding whether to test or consent. I believe either of these other issues would have been meritorious.
Of the three types of DWI alcohol tests used by Minnesota – blood, breath and urine – I see blood tests the least. This is probably due to the added time and expense required to go to the hospital where a medical professional must draw the blood, and the delay in receiving the results.
While blood tests are the most difficult to beat in a DWI case, the moral of this story is that blood tests can be beaten if challenged by a very competent attorney.
I regularly beat urine and breath tests as well. If you’ve been charged with a DWI or DUI as a result of a blood, breath or urine test, call Chuck Ramsay immediately.
Until now, Pennsylvania hospitals would analyze blood samples for DWI alcohol testing at the request of police utilizing “enzymatic testing,” a method widely considered by forensic scientists to be invalid, unreliable and inaccurate. Despite this, the state took citizens’ driver’s licenses and put them in jail based solely on enzymatic testing of blood samples.
The story behind the change in hospital policy is interesting. Mr. McShane had regularly obtained court orders which placed the hospital labs under great scrutiny and drained significant resources. The scrutiny jeopardized the hospitals' lab accreditation with scientific organizations when McShane exposed the unscientific methods. The loss of accreditation would have been extremely costly to the hospitals. In the end, rather than risk the loss of their accreditation under further intense scrutiny and exposure, the hospitals and clinics have informed police they will not longer analyze the blood samples.
Police will now likely send blood samples to the state crime lab to be analyzed using the Gas Chromatography – the gold standard of blood testing if administered and evaluated properly. It remains to be seen what effect this implicit admission will have on pending cases.
Minnesota does not recognize the enzymatic method for DWI blood testing. It uses the Gas Chromatography to measure the amount of alcohol in drivers’ blood. Coincidentally, Justin and I spent this week in Chicago at a hands-on science course entitled, Gas Chromatography: Fundamentals, Troubleshooting, and Method Development. The other attorneys attending the course were Andrew Alpert, Tyler Flood, Roderick Frechette, Stephen Hamilton, Josh Lee, Donald Ramsell and Michael Solak.
If you have been accused of having a blood alcohol concentration over the legal limit, call Chuck Ramsay immediately for the best possible DWI legal representation in Minnesota.
Recently, a headline from various Minnesota publications - Drunken Mother Led Chase, Her Two Kids in Tow – captured my attention. A Woman had her two sons, ages 2 and 4, in a car and an open bottle of rum in a diaper bag when she led police on a chase last week in western Hennepin County, police said Wednesday.
This is, indeed, a tragic situation. In 2008, 7 percent of children age 14 and younger killed in car crashes were passengers in a car with a drunken driver, according to the National Highway Traffic Safety Administration. Hennepin County alone usually sees three to four cases a year involving a parent who has been drinking and is driving with child/children in the car.
Please note, that merely being charged with child endangerment has consequences that are much more severe than a drunk driving conviction, which are potential loss of license, potential jail, fines, probation, etc. If child endangerment charges are filed, it’s possible for child protection to become involved and, in extreme cases, the state can take away a parents’ children.
If you are facing similar charges,
CONTACT RAMSAY LAW FIRM AT 651.604.0000 IMMEDIATELY
TO PROTECT YOUR PARENTAL RIGHTS
If you are facing these types of charges, Ramsay Law Firm has and continues to represent many cases like this; we realize our clients underlying chemical dependency issues that helped to cause a situation like this and our goal is to help beat the charges or minimize the consequences.
Earlier this month, fellow criminal defense lawyer, Ms. Christine Funk interviewed Mr. Charles Ramsay for asegmentof her online show, The Crime, Science and Information Show, that provides answers to various questions regarding workings of thelaw, the judicial system and the principles of forensic science.
Mr. Ramsay met with Christine Funk in order to discuss intoxication laws – including what those laws are, evidence and scientific issues concerning those laws and legal challenges that may occur now that evidence and scientific angles are being challenged.
During the interview, Mr. Ramsay explains the difference between driving while intoxicated (DWI) and driving under the influence (DUI), various tolerance levels for individuals and the government's means for determining an individual's alcohol concentration (urine testing, blood testing, breath testing). He also provides more information on breath test machines and the source code issues breathalyzers face.
Like Charles, Christine believes in knowing the law, the facts surrounding each case and the science behind each case.
Ms. Christine Funk has been with the Public Defenders Office for the State of Minnesota, serving as a member of the Trial Team Office. Christine has made great strides in challenging DNA evidence in cases throughout her career and has strived to make scientific evidence understandable to other lawyers, along with average, ordinary citizens. She hosts the online show, The Crime, Science and Information Show on The Women’s Information Network website.
Dr. Staubus says the forensic science treatise published the results of a scientific study that demonstrates the Intoxilyzer 8000 has a poor ability to detect mouth alcohol.
To be scientifically valid and reliable, DWI breath tests must detect mouth alcohol in test subjects. Otherwise, the test result will read erroneously high. See Professor Harley Myler’s Affidavit for more information. In the study, a total of 23 breath-alcohol profiles were collected from subjects blowing into the machine every 5 minutes for 2 hours immediately following drinking. The INVALID SAMPLE indicator of mouth alcohol was only actuated in 5 of the 23 cases. And in those 5 cases the INVALID SAMPLE indicator only appeared during the first sample.
Table II shows the Intoxilyzer 8000 failed to actuate the INVALID SAMPLE response to mouth alcohol even when test result was elevated by as much as 0.127 g/210 L over the subsequent breath test result.
Authors (James Watterson and Kayla Ellefsen from the Forensic Toxicology Research Laboratory in Canada) also collected blood samples from these subjects.
Within a limited breath volume range of 2 to 3 liters, the author found the precision of the test results to be insensitive to breath sample volume. Considering that the minimum acceptable volume for the Intoxilyzer 8000 is 1.1 liters and many subjects, when told by officers to "keep blowing, keep blowing, ...”, can blow in excess of 4 or 5 liters, the small range of 2 to 3 liters and the limited number of samples was apparently designed not to detect differences due to breath volume that others have already demonstrated.
Authors concluded that (1) the Intoxilyzer 8000 generally underestimates the venous BAC and (2) "it is clear a mandatory delay before breath testing commences should be enforced to minimize the likelihood of falsely elevated BAC measurements." According to Staubus, however, they avoided concluding anything in regard to possible mouth alcohol contamination from Gastric Esophageal Reflux Disease (GERD).
In my opinion, CMI, the Intoxilyzer manufacturer, could not get it right in the Intoxilyzer 5000 and they still cannot get it right in the 8000. This machine does not produce accurate, reliable or valid results.
“Consent or Jail!” is the threat behind Minnesota’s criminal DWI test refusal law.
Under the law – Minnesota Statute section 169A.20, subd. 2 – it is a crime for a person who decides not to waive their constitutional right,against warrantless search and seizure, when asked by a police officer to take an alcohol test. What about the fourth and fifth amendments?
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