One Hennepin County judge wrote in a source code order that it may be malpractice for a lawyer not to seek breath test software. That remains to be seen and depends primarily on the outcome of our experts' analysis. Practically speaking, however, the source code coalition has prepared matters to point where it requires little effort from attorneys to take advantage of this issue.
The upside is obvious -- drivers' DWI breath tests could be thrown out. There is little down side -- a minimal contribution from each lawyer and a delay necessitated by the review.
So the question is: is your lawyer a member of the Minnesota Intoxilyzer 5000 Source Code Coalition.
If not, get another lawyer.
I've listed of all members below as of today. In addition to this, all state public defender cases are included.
This is false. My law firm demanded full, unfettered access of the software on disc so that our experts can review it at their labs.
Because CMI and the state government secretly settled the federal lawsuit over our objections, we are limited to reviewing the source code at CMI corporate headquarters. CMI's onerous conditions have caused the cost of review to skyrocket and has slowed the process dramatically.
Interestingly, computer experts routinely conduct independent and adverse examinations of military and corporate source codes. The industry standard is to provide the software on disc to allow the experts to review the source code at their own labs. Why does CMI need protections greater than Coca-Cola, Microsoft and Apple Computer?
After months of negotiations, expert analysis of the breath test machine has come to a halt – before even getting started.
Last June the state of Minnesota and CMI announced they had secretly negotiated a resolution to the source code dispute. Attorneys who represent drivers charged with DWI objected, noting the agreement denied them reasonable access to the machine’s software that determines the guilt or innocence.
Since then, source code coalition leaders hired computer experts to analyze the Intoxilyzer 5000 source code and began preparation for software analysis in Kentucky. CMI, however, has continued to thwart coalition efforts, refusing to provide access meeting industry standards for software analysis.
Upon reaching an impasse with CMI, this week the source code coalition sent this letter to Judge Frank, the federal court judge who oversaw the state agreement with CMI, and to Judge Abrams, the Minnesota state court judge who is overseeing the consolidated state court cases. The coalition is asking the judges to remove the barriers erected by CMI, so the coalition can begin its review of the source code.
One Hennepin County judge wrote in a source code order that it may be malpractice for a lawyer not to seek breath test software. That remains to be seen and depends primarily on the outcome of our experts' analysis. Practically speaking, however, the source code coalition has prepared matters to point where it requires little effort from attorneys to take advantage of this issue.
The upside is obvious -- drivers' DWI breath tests could be thrown out. There is little down side -- a minimal contribution from each lawyer and a delay necessitated by the review.
So the question is: is your lawyer a member of the Minnesota Intoxilyzer 5000 Source Code Coalition.
If not, get another lawyer.
I've listed of all members below as of today. In addition to this, all state public defender cases are included.
Here's the latest on the expert analysis of the software: While CMI, the Intoxilyzer 5000 manufacturer, has yet to provide us reasonable access, Marsh Halberg, one of the other lead attorneys, has made significant progress. Our experts are ready to go. We hope to have them in Owensburo Kentucky by the end of the January to begin the software review.
Practicing on the cutting edge of criminal defense law is highly rewarding for both our clients and our attorneys. It wasn’t too long ago that we renewed our attack against Minnesota’s illogical urine testing regime for DWI suspects. We carefully crafted a unique legal argument and have already seen success for our clients in the district courts as a result of this argument. Such arguments require a strong scientific understanding – not just legal experience – and take a determined lawyer to prove effective in court.
Just last week, we brushed up on our studies and held another Frye-Mack hearing. This type of hearing is a key part to our attack against a urine testing regime that is being used to convict Minnesota drivers who may not have had any alcohol in their bloodstream when they were driving. If you think that last sentence sounds absurd, wait until you read what the government presented as evidence that Minnesota’s method of urine testing is a “generally accepted practice” in the scientific community.
- The government expert initially relied on numerous studies that purportedly supported the way Minnesota conducts urine tests. On careful cross examination, however, the expert was quickly forced to admit that the authors of these studies actually oppose the way Minnesota uses urine testing in DWI cases.
- The government witnesses were unable to speak about a single other state that uses urine testing for DWI’s in the way that Minnesota does. Again, cross examination was able to reveal to the court that Minnesota is the only state to utilize first void urine samples to convict DWI suspects.
- When we had our chance to present testimony (something we’ve perfected since we first formulated this argument) we presented volumes of unrebutted testimony, expert opinion and scientific articles that make one thing clear: Minnesota needs to stop using urine tests to convict drivers of DWI.
- We introduced a new peer reviewed scientific treatise, "Relationship between Blood and Urine Concentrations..." by Dr. A.W. Jones to be published later this year in Forensic Science International. Dr. Jones’ data supports his previous conclusions that Minnesota urine testing is bad science.
- In a bombshell, the former supervisor of the Minnesota Bureau of Criminal Apprehension’s toxicology section, Glenn Hardin, testified he submitted a written proposal to rid the state of urine testing to determine a specific level of alcohol in DWI cases. His political supervisors, however, thwarted his attempt to rid Minnesota of unscientific urine testing.
The testimony has all been heard; now we’re waiting for the judge to issue a ruling. Given our experience in the area, we’re expecting a victory for our client, and hope to be able to post again soon with another judicial order explaining what every other scientist (outside the Minnesota Bureau of Criminal Apprehension) understands: Minnesota’s urine testing regime is unreliable and inaccurate.
If you’ve been charged with a DWI, and the government is using the results of a urine test against you, you’ll want attorneys with the background, experience and drive to make sure that your rights are protected. That means calling Ramsay Law Office, where we don’t just let the government get their way – we get results.
In our first trial of 2010, a Hennepin County jury found my client not guilty after a trial in Minneapolis.
The prosecutor had charged “Eric” (not his real name) with DWI after his arrest in August last year. The police officer stopped Eric’s Mercedes convertible after crossing over the center line three times, almost striking another vehicle. Eric agreed to perform standardized field sobriety tests consisting of the Horizontal Gaze Nystagmus test (eye test where the person follows the officer’s finger or pen), the One Leg Stand, and the Walk and Turn test (walking heel to toe on a line).
The officer arrested Eric after the field sobriety tests. Eric submitted to a urine test. The Minnesota Bureau of Criminal Apprehension (BCA) tested Eric’s urine sample and reported his alcohol concentration was over the legal limit of 0.80. As a result of the test result, the state charged Eric with two charges of Second Degree DWI (3d in ten years) and forfeited his $80,000 automobile.
Before trial I obtained Eric’s urine sample from the BCA and had it retested by an independent lab. The reported result was .076, just UNDER the legal limit.
We began trial Tuesday with pre-trial motions. The judge denied all of our motions (the first time that has happened in my career!) and we began picking a jury. I called no witnesses to testify and relied on my cross examination to establish reasonable doubt in the jurors’ minds.
The jury returned Thursday afternoon with a verdict of Not Guilty.
Many believe DWI cases are not winnable. Most attorneys unfortunately believe all they can do is “negotiate” with the prosecutor and do not challenge the evidence or take the cases to trial. As a result of challenging the evidence and winning the trial, the state will likely return Eric’s $80,000 vehicle.
As the battle of Minnesota’s Intoxilyzer 5000 continues with no real end in sight, many metro counties have consolidated their source code cases to conserve state resources, prevent inconsistent rulings and to manage the growing caseload.
The First Judicial District, with its seven counties, has consolidated its cases before one judge and has issued an Intoxilyzer 5000 Source Code case management order along the lines of the federal court’s multidistrict litigation rules. Judge Abrams, who teaches complex litigation at the University of Minnesota Law School, has by far done the best job organizing and scheduling the consolidated cases. Other counties have begun formal consolidation of Intoxilyzer 5000 source code cases, including Hennepin, Anoka and Chisago.
Judge Abrams:
When I began writing this blog last month, Ramsey and Washington Counties seemed to be of the only metro-area counties which had yet to consolidate.
Ramsey County’s chief judge had written to the Minnesota Supreme Court requesting consolidation on a state wide basis, but the request was denied for procedural reasons.
This week, Minnesota Lawyer reported that Ramsey County has a consolidation plan in place.
Ramsey County is following a kind of hybrid model of consolidation, Ramsey County District Court Chief Judge Kathleen Gearin said. Cases involving challenges to the source code will be assigned to one judge, but only for the purpose of resolving the source code issue. The cases will then be assigned to different judges for trial. Cases not involving source code issues must proceed, she added. ... Gearin said that there are discussions ongoing about multi-county proceedings, but Ramsey doesn’t want to wait while those talks run their course.
I have yet to see any orders reflecting this.
Judge Gearin:
The last Ramsey County order I received was before Thanksgiving from Ramsey CountyJudge Marrinan. The order addresses the timing and sequence of expert review of the breath test machine’s software.
The order states:
1. Defendant shall receive access to the source code from CMI pursuant to the instructions and parameters set forth in State v. CMI.
2. Consistent with the Permanent Injunction at Paragraph 3(b) of the above, the Court has executed a Protective Order in this matter, which is attached.
3. Within 90 days after execution of the NDA, Defendant's expert shall report his or her findings to Defendant's counsel, who shall forward a copy to the Court and to counsel for the State within three working days after receipt.
4. The State and CMI shall then have 90 days in which to have their experts review the report of defendant's expert, review the source code, and submit their reports.
5. The State and CMI, shall forward copies of their experts reports to the court and Defendant's counsel within three working days after receipt.
6. Defendant shall appear for a JT in this matter on 7/26/10 at 8:45 am in Maplewood Courtroom A.
While the Ramsey County order is designed to keep the source code battle moving, it is silent regarding issues that already have arisen. For example, CMI, the Intoxilyzer 5000 manufacturer, continues to thwart the Minnesota source code coalition’s experts’ review of the software. As a result, we have been unable to begin analyzing the code which will certainly delay our experts’ report. What if we are unable to complete the report in the time they required?
Minnesota DWI Defense Blog will continue to update its readers as information becomes available on the Intoxilyzer 5000 Source Code battle.
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.
We’ve previously posted about Urine Testing and Frye-Mack hearings. Today, a reader asked “what is a Frye-Mack hearing, and should my attorney be asking for one too?”
The Constitution’s Guarantee of Right to Trial by Jury
Whenever a prosecutor charges a person with a crime that could result in jail, the Constitution provides that person with numerous constitutional rights. One of those sacred, longstanding rights is the right to a trial.
At its most basic, a trial is nothing more than a fact finding process. That means that everyone charged with a crime has the right to have a jury of his or her peers listen to the evidence and determine, based solely on that evidence, whether or not the State has proven that the “defendant” committed a crime beyond a reasonable doubt.
How Good Defense Lawyers Are Worth Their Value
Good Lawyers know how and what types of evidence can be presented to that jury.Great lawyers know how to keep out evidence that should not be admitted at trial.
Anyone who has watched Law and Order realizes that there are a variety of grounds for an attorney to get evidence suppressed. Usually, on TV, it’s because the evidence was obtained by police officers that broke the law.
However, in real life, it’s far more likely that an attorney will be attempting to suppress evidence because it’s simply not relevant, or because it is so unreliable that it would do nothing more than confuse the jury. Sometimes, it’s because the evidence looks good at first glance, but is really nothing more than smoke and mirrors. And this is where the phrase Frye-Mack comes into play.
A Frye-Mack hearing is an evidentiary hearing, held before any trial takes place, and it is used to determine if “scientific evidence” can be presented against an accused defendant. It’s called a Frye-Mack hearing in Minnesota based upon two reported cases that outlined the procedure; United States v. Frye, a Washington D.C. case from the 1920's that dealt with a type of lie detector test, and State v. Mack, a Minnesota case from the 1980's that dealt with “hypnosis” testimony.
As a result of these two cases (and many others that followed), Minnesota has two very specific criteria that need to be met before the State can introduce scientific evidence to a jury. These criteria are aimed at preventing juries from being presented with “junk science.”
Frye-Mack Prong 1:Has the test gained general acceptance in the scientific community?
Under what is called the “first prong” of Frye-Mack analysis, the State must prove that the scientific technique that is being used has gained general acceptance in the scientific community. As a fun example, we’ll use phrenology, or the belief that the personality traits of a person can be derived from the shape of that person’s skull.
In our example, before a jury could find someone guilty of murder based on phrenological evidence (let’s say the State can prove that the defendant has the dreaded “murder bump” on his forehead) the State would have to show that phrenology is a scientific technique that is generally accepted in the scientific community. There would be a Frye-Mack hearing, and the State would fly in experts from around the world to testify about how everyone uses and respects phrenology, why phrenology is such good science, and maybe even why the specific bumps on their own heads prove that they are credible witnesses. If, after all the testimony, the judge is convinced that phrenology is generally accepted in the scientific community, the State has succeeded on “prong one” of the Frye-Mack test.
Frye-Mack Prong 2:Did they do the test properly?
Having successfully met its burden on prong one, the State would then have to meet its burden on “prong two” of the Frye-Mack test. This second prong means that the State must not only show that a technique is generally accepted in the scientific community, but also that the laboratory conducting the tests in the individual case complied with appropriate standards and controls.
In our example, the State would meet its burden under the second prong of the Frye-Mack tests by presenting more experts that could show how phrenology typically works (probably with models of human skulls and demonstrations on how to use weird measuring devices). The State would then have to show that, in the case of our alleged murderer, those accepted techniques were used to conclude that yes, our alleged murderer does have the “murder bump” on his forehead, so of course he must be guilty.
Of course, in a real courtroom, a jury would never hear evidence of phrenology. That’s why Minnesota uses the Frye-Mack standard - to prevent the jury from even being exposed to junk science. In our example, I doubt a prosecutor could find one reliable expert that could sit in court and say, with a straight face, that the scientific community generally agrees that phrenology is valid science. Without proof of general acceptance in the scientific community, the State fails to meet its burden under prong one of Frye-Mack analysis and the evidence is excluded as junk science. We can all breathe a small sigh of relief knowing that the lumps on our head won’t lead to criminal charges in the near future.
However, the two prongs of the Frye-Mack test apply not just to phrenology, but every type of -ology, up to and including every type of mechanical or physical scientific test. Both prongs of the test, general acceptance and foundational reliability, must be met before scientific evidence can be presented to a jury.
DNA evidence, for example, has already been proven to be generally accepted at a Frye-Mack hearing, and juries now see this type of evidence every day. Polygraphs (lie detectors), on the other hand, have not been shown to have gained general acceptance in the scientific community, and until that happens in Minnesota, the results of polygraph tests cannot be presented to a jury.
The list of types of scientific evidence that has undergone the scrutiny of the Frye-Mack test is long, but every scientific technique that has been analyzed has one thing in common - the State had its chance to prove that the technique had gained general acceptance in the scientific community, and either succeeded or failed in its showing.
This, in a nutshell, is what a Frye-Mack hearing is - a special evidentiary safeguard that is in place to make absolutely sure that a person can’t be proven guilty based on science, unless and until that type of science has gained general acceptance in the scientific community.
When it comes to DWI’s, especially DWI’s involving urine tests, one thing is crystal clear: testing urine to determine a precise alcohol concentration at a given point in time has never been shown, via a Frye-Mack hearing, to be a technique that is generally accepted in the scientific community. The sad reality is that there are volumes of evidence demonstrating that it is not generally accepted by any good scientists, and that Minnesota is unique in that it still presents juries with urine test results in DWI cases. Thus, good attorneys who fully understand the rules of evidence will stand up and demand that a Frye-Mack hearing be held whenever the State attempts to use “junk science” like urine tests against their clients.
Every Driver Charged With A DWI by Urine Should File A Frye-Mack Motion.
Although the Minnesota Court of Appeals did not agree with us that Frye applies to urine cases, we are appealing to the Minnesota Supreme Court.In the past, Judges have ruled Urine Does not Pass the Frye Test. I expect the Minnesota Supreme Court to do the same.
In a cruel, ironic twist, a Minnesota Court of Appeals ruling today makes the least scientific alcohol test the most unassailable. In Schroeder v. Comm’r of Pub. Safety, A09-238 (Minn. Ct. App. Dec. 15, 2009), the court rejected a driver’s claim that urine testing is not a practice that is generally accepted in the scientific community as a valid and reliable method of determining alcohol concentration.
Minnesota uses three types of DWI alcohol testing methods: blood, breath and urine. Blood is widely recognized as the most reliable. Even breath tests, which suffer from some well known problems, are used around the world. However, most states do not use urine testing at all to determine a specific level of alcohol concentration.
One district court who tackled this issue head on had some choice words to say about this type of urine testing. The Honorable Judge Thuet, in the case of Carrell v. Comm’r of Pub. Safety, said:
“[T]he continued use of a testing procedure which experts agree may not measure the level of alcohol concentration, and thus intoxication of a driver at the time it is administered, and which the state's witness admitted may yield results that do not correlate with blood tests performed at the same time, constitutes an absurd result which the Legislature could not possibly have intended, especially given the stated goal of enhancing safety by removing intoxicated drivers from the roads. In light of this, the Court is compelled to rescind the revocation of the Petitioner's driving privileges.
Despite the opinions of some Minnesota judges and almost the entire scientific community, the court of appeals rejected our demand for a Frye-Mack hearing (which would require the State to show that urine testing is generally accepted in the scientific community). Instead, the court implicitly adopts the Daubert standard (a standard used in other jurisdictions – ironically, those that don’t even use urine testing – that allows judges to simply take judicial notice of reliability of urine testing). By ignoring our Frye-Mack request, the court is attempting to make the presumption that urine testing is reliable irrefutable.
To understand just how troubling this ruling is requires a brief explanation of the standard that should have been applied by the Schroeder panel (the Frye-Mack standard) versus the standard that was actually applied (the Daubert standard) and why this is a dangerous precedent for the entire state of Minnesota.
Minnesota’s Frye-Mack standard has been steadily evolving since the early 20th century, and by the 1980's the Minnesota Supreme Court summarized the test in State v. Mack, 292 N.W.2d 764, 768 (Minn.1980), by stating that, “the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where experts in the field widely share the view that the results are scientifically reliable as accurate.”
The Supreme Court summed up its holding in State v. Mack two decades later by stating that the ultimate purpose of determining the admissibility of mechanical or scientific evidence is to ensure that, “the particular evidence must have a foundation that is scientifically reliable.” State v. Roman Nose, 649 N.W.2d 815, 818 (Minn. 2002).
The Supreme Court then carefully and definitively created a two-pronged standard that must be used to determine if a particular piece of mechanical or scientific evidence has a foundation that is scientifically reliable. Id. Concisely stated, the Court held that, “a novel scientific technique that produces evidence to be admitted at trial must be shown to be generally accepted within the relevant scientific community, and second, the particular evidence derived from the technique and used in an individual case must have a foundation that is scientifically reliable. Id. at 818-819 (citing Goebv. Tharaldson, 615 N.W.2d 800, 810 (Minn.2000) [reaffirming adherence to Frye-Mack standard after Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)]).
Unfortunately, even a cursory reading of the Schroeder opinion shows that, rather than follow the Supreme Court’s mandate in the seminal Frye-Mack case of State v. Roman Nose, the Court of Appeals instead chose to utilize the Daubert standard for admitting scientific evidence. This, despite the fact that Minnesota has not adopted the Daubert standard, because it is less rigorous than the Frye-Mack standard. State v. Traylor, 656 N.W.2d 885, 891 (Minn.2003). This, despite the fact that one of the judges on the Schroeder panel, when confronted with a specific request to use the Daubert standard instead of the Frye-Mack standard, held that “[T]he task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court.”Yang v. State, 2008 WL 1972856 (Minn.App. 2008) (citing Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn.App.1987), review denied (Minn. 18 Dec. 1987).
The Schroeder panel started its cursory two-paragraph analysis by accurately stating that, “[t]he Frye-Mack test is aimed at reliability.”Schroeder at 5. This is a fairly close approximation of the Supreme Court’s summation of Frye-Mack in the Roman Nose case, cited supra in this post.
What the Schroeder panel did next, however, was to eviscerate the standard two-prong Frye-Mack analysis and instead fall back upon the rejected Daubert standard. After reciting the fact that Frye-Mack is indeed concerned with “reliability,” the panel chose to ignore the fact that Frye-Mack has established a clear and specific procedure for determining that “reliability.” Instead, the Panel simply held, without analysis, that “reliability” as a general concept had already been established by two Court of Appeals cases, Genung v. Comm’r of Pub. Safety, 589 N.W.2d 311 (Minn. App. 1999) and Hayesv. Comm’r of Pub. Safety, 773 N.W.2d 134 (Minn. App. 2009), pet. for review filed (Minn. Nov. 6, 2009). This appellate determination that, nothwithstanding the views of the scientific community, urine testing has mystically become reliable science by judicial fiat is precisely what Minnesota’s Frye-Mack regime is designed to avoid. Neither of the two cases cited by the Schroeder panel dealt with whether or not the testing method at issue had been proven to be “generally accepted in the scientific community,” the required first-prong burden that applies under Frye-Mack. Judicial fiat, not hard science, now appears to be the new test that applies to scientific evidence in Minnesota.
What is so troubling about this sudden development is that the Supreme Court has gone to great, detailed length to carefully explain exactly what type of analysis is required under prong one of Frye-Mack . . . and, as if able to predict the future, the Supreme Court even managed to explicitly reject the approach taken by the Schroeder panel.
Rather than paraphrase or run the risk of misinterpreting the plain language of the Minnesota Supreme Court, a few direct quotations are all that is necessary to demonstrate that the Court of Appeals is attempting to undermine the entire appellate process. The first quote comes from State v. Roman Nose, and explains why the Schroeder panel’s simple and misguided reliance on prior cases (where the issue of general acceptance in the scientific community was not at issue, much less litigated) is improper: The Court stated:
“[T]he issue of whether a technique is generally accepted within the relevant scientific community is best determined by evidentiary hearing. See Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn. 2000). There was no evidentiary hearing on general acceptance in this case and, contrary to the dissent's argument, hearings before other district courts will not substitute for the evidentiary hearing required here. Without an evidentiary hearing on the views of the relevant scientific community, trial and appellate judges become scientists, an approach we clearly rejected in Goeb. 615 N.W.2d at 813-14. State v. Roman Nose, 649 N.W.2d 815, 819, fn.3 (Minn. 2002)”
What immediately comes to mind is that the Schroeder Panel is indeed viewing itself as “amateur scientists” despite all warnings to the contrary by the Supreme Court. Relying on Hayes (where defense experts were actually precluded from testifying) and Genung (where the prosecution did not even present expert testimony, and where the defendant did not even contest the foundation for the urine test) simply cannot comply with the demand to hold an “evidentiary hearing on the views of the relevant scientific community.” Thus, we have a new breed of judge-scientist, a dangerous breed that the Supreme Court has warned the bar about since the dawn of the new millennium.
This type of logic - effectively using the doctrine of “judicial notice” to find that a scientific technique is indeed generally accepted in the scientific community - was shot down by the Roman Nose court years before it was utilized by the Court of Appeals. The Supreme Court in Roman Nose took the time to state clearly:
“The dissent argues that we should take “judicial notice” of the inherent reliability of the PCR-STR method of testing DNA unless something in the record indicates a reason to depart from the findings of other jurisdictions. But that is not the procedure we have established for determining the admissibility of scientific evidence. Moreover, there is an inadequate record to support taking judicial notice of the general acceptance of the PCR-STR method because appellant's request for a hearing on the issue was denied by the trial court.”State v. Roman Nose, 649 N.W.2d 815, 823, fn 9 (Minn.,2002)
As if the above quotations did not make the need for an evidentiary hearing clear enough, and the Supreme Court felt obligated to clearly explain to the lower courts how to conduct Frye-Makc analysis, the opinion in Roman Nose further elaborated on the need for an evidentiary hearing. Again, this is a hearing where the specific issue presented was whether or not a mechanical or scientific technique is generally accepted in the relevant scientific community. The Court repeated that:
“It is not enough for us to believe the test has gained general acceptance in the relevant scientific community. The state must establish that it has gained general acceptance, and it must do so by evidentiary hearing.”State v. Roman Nose, 649 N.W.2d 815, 820, fn.5 (Minn. 2002)”
In the case of Schroeder v. Comm’r of Pub. Safety, the Appellant was asking for nothing more than what the Supreme Court says is absolutely necessary - an evidentiary hearing. Appellant merely wanted the district court to compel the Commissioner to prove, once and only once, one specific proposition. And that proposition came directly from the Supreme Court: Is urine testing, as practiced by Minnesota, a mechanical or scientific technique that has gained general acceptance in the scientific community?” This question was never raised in Genung. It was never raised in Hayes. It was never ruled on by either court. For the Schroeder panel to so callously disregard the Supreme Court’s expectation that Frye-Mack issues will be resolved via nothing other than an evidentiary hearing is a dangerous precedent indeed.
By eliminating the need for an evidentiary proponent to prove general acceptance of a technique, and replacing this test with the nebulous, impossible to define threshold of bald, “reliability,” the Schroeder panel has set dangerous precedent and has demonstrated exactly why Minnesotans do not want their judges to act as scientists.
We are continuing to fight the use of bad science to ruin people’s lives. Let’s hope the Minnesota Supreme Court accepts review and overturns the court of appeals absurd rulings.
In Minnesota, to beat a DWI, a good criminal defense attorney needs to win not once, but twice. That means succeeding on the criminal case (where the penalties include possible jail time, fines, and years of probation), and also winning the separate Implied Consent case (which deals solely with a person’s driver’s license and license plates). There may even be a third case – beating the police forfeiture of the person’s motor vehicle.
Last week, a SherburneCounty judge found in favor of our client on his Implied Consent case. This wiped our client’s driving record clean of any “alcohol-related” revocation and protected him from having to drive around with “whiskey plates.” We were able to win on this case without even getting into the merits of the blood test that my client took – and we did it by convincing the judge that the police unconstitutionally stopped my client.
The police pulled our client over because, supposedly, he made a wide turn. Specifically, the police claimed that our client started his turn in one lane of traffic, and finished his turn in another lane, and that this was a traffic violation worthy of being pulled over for.
Seems like a valid basis for a stop, right? Most people would think so, but then, most people would be WRONG. Besides the obvious fact that many people (including police) make these types of turns every day, a careful reading of Minnesota Statutes make it clear that such a turn ISN’T EVEN ILLEGAL!
That was an argument that Ramsay Law Firm lawyer, Dan Koewler, and I brought to the judge, and that was the argument that won the case. Because the court ruled that the stop was unconstitutional, numerous other issues we raised did not even need to be addressed (it only takes one winning argument to win an entire case).
This just goes to show that when you’ve got an experienced attorney dedicated to beating the entire DWI case, you can get results based on issues that other attorneys might not even consider. That’s why we at our law firm pride ourselves on carefully analyzing every case, to make sure that every possible opportunity to win our client’s case is fully litigated.
We regularly beat all types of DWI cases, on a variety of grounds. If you’ve been charged with a DWI or DUI as a result of a blood, breath or urine test, call Ramsay Law Office immediately.
Hennepin County consolidated 102 DWI breath test cases. Today it held a hearing at which the attorneys, prosecutors and all 102 defendants were required to attend. The theory was that the prosecutors were going to offer deals to get the cases settled.
Someone forgot to tell the prosecutors.
Although some cases may eventually get resolved, it seemed few, if any cases, settled today. Instead, we learned:
·Prosecutors would not object to consolidation on a state wide basis, but have yet to file a motion to do so.
·Prosecutors have not looked into retaining an expert to analyze the source code, instead they will use the expert retained by the Attorney General on civil cases.
·Prosecutors do not want their expert to begin work until after the defense has concluded its work.
·Prosecutors believe it is best to set a “tracking date” to move things along.
·The Source Code Coalition requested consolidating HennepinCounty cases with the First Judicial District. This would save judicial resources as well as the resources of its municipalities.
The next date was set for June 1, 2010.
Judge Abrams has done an excellent job coordinating the 700+ cases in the First Judicial District and has issued a strict scheduling order, with a trial date of May 10, 2010. Trial is expected to take three weeks.
Is it a coincidence that HennepinCounty scheduled the next source code case immediately after the First Judicial District’s case?
In my opinion, the prosecutors from HennepinCounty don’t want consolidation because they want two bites at the apple. If the prosecutors like the results from the First District, will they seek to use the results in HennepinCounty. If they don’t like the results, then they have the right to their own hearing on the source code issue.
It would in the best interests of Minnesotan’s to move these cases along and stop wasting the tax payers’ money, particularly in these tough economic times. As I blogged previously, otherwise, CMI, the Intoxilyzer 5000 manufacturer, will be the sole winner here.
HennepinCounty is the sole county in the Second Judicial District, which has the largest population in the state of Minnesota. It has the following cities:
Hennepin County Judge Daly issued an email today regarding the approximately 90 criminal DWI Intoxilyzer Source Code. In the email addressed to the Source Code Coalition, judges of the Judges of the Fourth Judicial District and others, she wrote:
Good afternoon,
Tomorrow we will be conducting a hearing on the criminal source code cases. The hearing will be on the A Level of the GovernmentCenter, in the Jury Assembly Room, at 9:00 AM. I will be there along with Judges Wernick and Cahill. Judge Jerry Abrams of the First District will be attending the hearing.
Given that there are over 90 cases on that calendar we need to have some efficiencies. The hearing will be reported and so consideration will be given to the reporter as well. For those reasons we are asking that each “group” select a spokesperson. By “group” we mean the private defense group( MSCJ), the Meaney/Patrin group (if they wish to have a separate spokesperson), the PD (if they wish to speak separately from the MSCJ), the suburban prosecutors and the Minneapolis City Attorney.
We will be asking Judge Abrams to talk about what is happening in the First. We will then ask each group to state what they are requesting of the court going forward. Finally, ever hopeful, Judge Wernick and Cahill will be available to accept pleas should the parties wish to resolve their case. The defendants are required to appear at this hearing.
Please feel free to contact me with questions or concerns. See you all tomorrow.
Judge Daly
Given that CMI does not seem to be cooperating with the Source Code Coalition's efforts to examine the source code -- thus further delaying the review -- I hope prosecutors are in a mood to resolve these cases. To do so, I believe they should have the mindset that the Intoxilyzer 5000 test result will not be available to them in their case. Otherwise, the defendants will have no incentive to settle.
I have been successful getting judges to throw out urine test results. I’ve posted the court orders in the Carroll case and Westlund case. I’ve also prevailed in trial where a jury agreed urine tests are worthless. Prosecutors are well aware of my firm’s victories. Indeed, I’ve had much greater success in this area than any other attorney in Minnesota. As a result, prosecutors are reluctant to go to trial with me in urine test cases. This is good news for my clients.
If the State of Minnesota has charged you with a crime or taken your license based on a urine test, call us immediately. We can help.
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.
In each of the implied consent cases, the petitioner has challenged the reliability of his or her Intoxilyzer 5000EN test result based on their belief that reviewing the source code for the Intoxilyzer 5000EN will reveal a material defect affecting the instrument’s ability to produce accurate alcohol concentration results.I have addressed the flaws of the Intoxilyzer in past blog entries.
The Chisago County Court Administrator’s office notified my office today that it was consolidating the county’s source code cases into one hearing. The hearing is scheduled to be heard on May 5, 2010.
Coincidentally, Anoka County has scheduled its consolidated source code hearing for the same date. Chisago County seemed unaware of this. I do not know whether Chisago will reschedule the hearing. Since Chisago County is in the Tenth Judicial District with Anoka County (along with the counties of Isanti, Kanabec, Pine, Sherburne, Washington, and Wright), perhaps the district will consolidate the entire district’s hearings. In my opinion, this would save judicial resources and be more efficient for the courts and litigants.
On July 1, 2009, Minnesota implemented a statewide pilot Ignition Interlock program. This program allows drivers who have had their licenses revoked, cancelled, suspended or withdrawn due to multiple DWI convictions or revocations get their licenses back earlier, if they agree to install an ignition interlock device on their car.
This is the first sensible move by Minnesota in the DWI arena in decades. Until now the Department of Public Safety had a policy that made no sense. It preferred people to drive without a valid license – knowing people must drive on many occasions – than fashioning a workable solution to Minnesota’s drunk driving problem. This allows citizens to drive to work, school and other places legally while at the same time ensuring our roads are same for our loved ones. Bravo DPS!
According to a Duluth news outlet 400 DWI offenders have already participated in Minnesota’s Ignition Interlock Program. Some benefits to this program include driving sooner, being able to drive to work, school, or wherever you need, avoiding future DWIs, driving legally and quite possibly saving money by being able to drive your own vehicle in lieu of cabs, bus fare, or saving the hassles of having to ask others to drive somewhere for you. There are potential disadvantages, whether it is worth it for you to enroll will depend on your needs, preferences and level of offense. You will also have to have to bring your vehicle for monthly maintenance appointments so that engine start information can be downloaded into a report format.
The ignition interlock is a small device that is installed into the vehicle and is used to measure an individual’s alcohol concentration. If the driver has been drinking and blows into the tube and registers a high alcohol concentration level the vehicle will not start. The device will also trigger random retests as the vehicle is driven to ensure that alcohol has not been consumed while operating the vehicle.
It remains to be seen what if any flaws exist in the program which may cause a device to erroneously stop one’s automobile.
For your convenience, I’ve posted Minnesota Statute sections 171.305 and 171.306 in their entirety below:
171.305 IGNITION INTERLOCK DEVICE.
Subdivision 1.Definition.
"Ignition interlock device" or "device" means breath alcohol ignition equipment designed to prevent a motor vehicle's ignition from being started by a person whose alcohol concentration exceeds the calibrated setting on the device.
Subd. 2.
[ Expired]
Subd. 3.Performance standards.
The commissioner shall specify performance standards for ignition interlock devices, including standards relating to accuracy, safe operation of the vehicle, and degree of difficulty rendering the device inoperative. The interlock ignition device must be designed to operate from a 12-volt DC vehicle battery and be capable of locking a motor vehicle's ignition when a minimum alcohol concentration of 0.020 grams of ethyl alcohol per 210 liters of breath is introduced into the device. The device must also require a breath sample to determine alcohol concentration at variable time intervals ranging from five to 30 minutes while the engine is running. The device must also be capable of recording information for later review that includes the date and time of any use of the vehicle or any attempt to use the vehicle, including all times that the vehicle engine was started or stopped and the alcohol concentration of each breath sample provided.
Subd. 4.Certification.
The commissioner shall certify ignition interlock devices that meet the performance standards and may charge the manufacturer of the ignition interlock device a certification fee. A manufacturer who submits a device for certification must provide an application for certification on a form prescribed by the department.
Subd. 5.Issuance of limited license.
The commissioner may issue a limited license to a person whose driver's license has been canceled and denied due to an alcohol or controlled substance-related incident under section 171.04, subdivision 1, clause (10), under the following conditions:
(1) at least one-half of the person's required abstinence period has expired;
(2) the person has successfully completed chemical dependency treatment and is currently participating in a generally recognized support group based on ongoing abstinence; and
(3) the person agrees to drive only a motor vehicle equipped with a functioning and certified ignition interlock device.
Subd. 6.Monitoring.
The ignition interlock device must be monitored for proper use and accuracy by an entity approved by the commissioner.
Subd. 7.Payment.
The commissioner shall require that the person issued a limited license under subdivision 5 pay all costs associated with use of the device.
Subd. 8.Proof of installation.
A person approved for a limited license must provide proof of installation prior to issuance of the limited license.
Subd. 9.Misdemeanor.
(a) A person who knowingly lends, rents, or leases a motor vehicle that is not equipped with a functioning ignition interlock device to a person with a limited license issued under subdivision 5 is guilty of a misdemeanor.
(b) A person who tampers with, circumvents, or bypasses the ignition interlock device, or assists another to tamper with, circumvent, or bypass the device, is guilty of a misdemeanor.
(c) The penalties of this subdivision do not apply if the action was taken for emergency purposes or for mechanical repair, and the person limited to the use of an ignition interlock device does not operate the motor vehicle while the device is disengaged.
Subd. 10.Cancellation of limited license.
The commissioner shall cancel a limited license issued under this section if the device registers a positive reading for use of alcohol or the person violates any conditions of the limited license.
Subd. 11.Program standards.
The program standards applicable to section 171.306 also apply to this section.
The commissioner shall conduct a statewide two-year ignition interlock device pilot project as provided in this section. The pilot project must begin on July 1, 2009, and continue until June 30, 2011. The commissioner shall submit a preliminary report by September 30, 2010, and a final report by September 30, 2011, to the chairs and ranking minority members of the senate and house of representatives committees having jurisdiction over criminal justice policy and funding. The reports must evaluate the successes and failures of the pilot project, provide information on participation rates, and make recommendations on continuing the project.
Subd. 2.Performance standards; certification.
The commissioner shall determine appropriate performance standards and a certification process for ignition interlock devices for the pilot project. Only devices certified by the commissioner as meeting the performance standards may be used in the pilot project.
Subd. 3.Pilot project components.
(a) Under the pilot project, the commissioner shall issue a driver's license to an individual whose driver's license has been revoked under chapter 169A for an impaired driving incident if the person qualifies under this section and agrees to all of the conditions of the project.
(b) The commissioner must denote the person's driver's license record to indicate the person's participation in the program. The license must authorize the person to drive only vehicles having functioning ignition interlock devices conforming with the requirements of subdivision 2.
(c) Notwithstanding any statute or rule to the contrary, the commissioner has authority to and shall determine the appropriate period for which a person participating in the ignition interlock pilot program shall be subject to this program, and when the person is eligible to be issued:
(1) a limited driver's license subject to the ignition interlock restriction;
(2) full driving privileges subject to the ignition interlock restriction; and
(3) a driver's license without an ignition interlock restriction.
(d) A person participating in this pilot project shall agree to participate in any treatment recommended by a chemical use assessment.
(e) The commissioner shall determine guidelines for participation in the project. A person participating in the project shall sign a written agreement accepting these guidelines and agreeing to comply with them.
(f) It is a misdemeanor for a person who is licensed under this section for driving a vehicle equipped with an ignition interlock device to drive, operate, or be in physical control of a motor vehicle other than a vehicle properly equipped with an ignition interlock device.
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.
As was previously reported in a previous blog on 10.19.09 - Updated - Source Code Review Process - See who is involved - many private attorneys have each donated $1,000 to MSCJ’s source code review process. All of this is in addition to the tens of thousands the MSCJ membership has already expended leading the defense bar on this issue and the tens of thousands more it intends to commit as well.
If your attorney is not on the list, he or she is not keeping up with even the minimal requirements of a dwi lawyer.
At the heart of the matter is the reliability of the Intoxilyzer 5000 and whether or not this machine accurately measures a person’s alcohol concentration under Minnesota's DWI laws. This is the machine used state wide. I have addressed the flaws of the Intoxilyzer 5000 in past blog entries.
At yesterday’s mass hearing, coalition attorneys told Judge Abrams that they had hired Computer Forensics Services to review the source code as allowed under the federal court settlement. This would take approximately 2-3 months and will be done at CMI headquarters in Kentucky.
Judge Abrams decided he would schedule one mass hearing for next spring, to determine whether the breath test machine is reliable after the findings of the source code review. The hearing which includes 286 civil cases and 238 criminal cases (and growing) throughout the First Judicial District is expected to last anywhere from one to three weeks.
Other District Courts may join the First Judicial Districts in this hearing or conduct mass hearings of their own on the reliability and accuracy of the Intoxilyzer 5000.
On October 21, 2009 an order issued by the Honorable Jerome Abrams was filed by the First Judicial District which sets an agenda for a scheduling conference on November 4, 2009 to discuss factors in the on-going Source Code dispute. Judge Abrams has been assigned to this matter by Order of the Chief and Judge of the First Judicial District pursuant to minn.stat. §484.69, subd.3. Minnesota’s First Judicial District is comprised of the following counties: Carver, Dakota, Goodhue, LeSueur, McLeod, Scott and Sibley.
This hearing will address how the First Judicial District Court of Minnesota will proceed in the Source Code Evidentiary Hearings in Implied Consent and Criminal matters. Key topics in source code evidence such as source code disclosures, timing of disclosures, identifying all experts for the defendant, petitioner and State, and expert opinion disclosures/reports along with additional fact disclosure will be determined. To read the complete agenda please see the Order Setting Agenda for Hearing dated 10.21.09.
This mass Source Code Scheduling Conference will more than likely take an entire day and will consolidate 286 civil cases and 238 criminal cases. While the idea of doing a ‘mass’ hearing seems logical at first – saving judicial resources, time and expenses – one has to ask – what expense does each individual face?
Anoka County became the latest county in the state of Minnesota to consolidate its breath test cases involving the battle over its source code.The hearing for civil cases is set for May 5, 2010.Criminal cases will be heard May 26, 2010.
AnokaCounty is in the Tenth Judicial District, which is comprised of Anoka, Chisago, Isanti, Kanabec, Pine, Sherburne, Washington, and WrightCounties.
The other counties that have consolidated cases are HennepinCounty, and the entire First Judicial District (comprised of Carver, Dakota, Goodhue, LeSueur, McLeod, Scott and Sibley counties).
Chief Judge of Ramsey County, Judge Gearing, sent a letter last month to Chief Justice Eric Magnuson requesting that the state consolidate all the Intoxilyzer cases within the state.Chief Justice Magnuson’s decision, if any, has been made public as of this writing.
Since at least as early as 1952, Minnesota's courts have held scientific techniques to a high standard before they could be admitted in a court case.Scientific evidence can be admitted only after passing what is called the “Frye-Mack” test.
The Frye-Mack test is simple on its face: the proponent of scientific evidence must first demonstrate the scientific community generally accepts the science before it can be admitted. The rationale behind such an analysis is to both insure that judges do not play the role of amateur scientist when evaluating scientific evidence, and to provide uniformity of rulings across the state.
Earlier this year a Minnesota judge found in one of my cases that Urine testing in Minnesota does not pass the Frye-Mack test and did not permit the test results into evidence.This is the only known Urine Frye-Mack hearing in Minnesota … ever!
Previously, a judge agreed with us and threw out our client’s urine test results for similar reasons, although not based specifically on the Frye-Mack test.See the Dakota County judge’s DWI urine test order.
Last month, one our firm’s attorneys, Dan Koewler, convinced another judge to grant a Frye-Mack hearing.The state opposed our motion.The judge’s urine test order can be found here.That hearing to determine whether Minnesota’s DWI urine tests are generally accepted in the scientific community will be held soon.
New Jersey Attorney, Evan Levow, reported that today a judge threw out the 0.14 breath test result in New Jersey v. Chun.Chun was the name of the lead defendant in New Jersey’s state-wide battle over its new breath test machine.Mr. Levow has represented Ms. Chun throughout the process.
Although the first four and 1/2 years of pre-trial litigation focused on whether the Draeger Alcotest was scientifically reliable – which included analysis of the machine’s source code – the judged suppressed the test based on the officer's failure to follow proper procedures for changing the mouth piece. (Both the manufacturer and the head of the Alcotest program testified in the state wide hearings that the mouthpiece must be changed after each breath sample, which wasn't done.)
Tomorrow they try the impaired charge. We wish Mr. Levow and Ms. Chun the best of luck.Certainly no one can question the lengths to which Mr. Levow will go to give his clients the best possible representation.See Mr. Levow’s website for more information about the case.See my blog and website for more information about the fight over Minnesota’s breath test machine and source code battle.
Last weekend members of the Minnesota Source Code Coalition met with our experts to plan our examination of the software in Kentucky at CMI Headquarters. We were to begin by reviewing the hard-bound written copy of the source code which CMI was to provide under the Federal Source Code Settlement.
Upon opening the book, we were shocked to discover that CMI had blacked out 99 pages of the printed version of the software!
Although the federal settlement permitted CMI to redact passwords, our experts tell us CMI blacked out entire pages of the software. The redacted code includes critical information necessary to analyze the software.
Judge Frank ordered CMI “to make printed, hardbound copies of the complete Source Code (subject to the redaction of security and passcode features described herein) available in Minnesota.” (Click for Judge Frank’s entire order).
It is clear CMI is playing games. The company has made it tough enough by requiring our experts to travel to Kentucky to review the actual source code at their headquarters during regular business hours. Given the other limitations, we expect a review to take up to three months.
What other hurdles will CMI place in our path?
I suspect Minnesota judges will not tolerate this type of conduct and correctly determine that the state has not provided the source code to drivers under the Minnesota Supreme Court ruling of State v. Brunner.
As a result, thousands of DWI cases may be dismissed because of CMI’s chicanery.
Minnesota Knows of Critical Software Flaw; Refuses to Install Patch
A recent Court Transcript provides new information into the Minnesota Bureau of Criminal Apprehension’s (BCA) concealment of critical flaws in the software that runs the Intoxilyzer 5000, the state’s breath testing machine. The transcript was produced as a result of testimony taken in the cases of State v. MH, and MH v. Commissioner of Public Safety in Crow Wing County. This is the first of a five-part series to publish the new revelations.
The August 26, 2009 transcript includes new revelations of the source code/software problem which erroneously accuses drivers of refusing to take an alcohol test. Refusal is a crime under Minnesota’s DWI laws, which I’ve addressed previously in my blog and on my website.
The transcript of the testimony of a BCA forensic scientist reveals:
The BCA is aware of the “potential” problem with the Intoxilyzer rejecting what should be an acceptable sample;
CMI, the Intoxilyzer 5000’s manufacturer, provided the BCA with a software patch to correct the problem;
The BCA did not test or install the corrected version of the software;
The state chose not to test or install the software was to avoid enflaming the “source code” issue;
The BCA employee speculates that cost may have also been a factor in the decision to not test or upgrade the flawed software.
Here is an Excerpt of the transcript:
Q: So we are aware of a problem with the current version of software that would reject what might be otherwise valid breath sample, right?
A: Potentially, not definitely.
Q: And the CMI provided BCA with a fix that purportedly corrected that problem, right?
A: Purportedly.
Q: And instead of testing it, the BCA shelved it, correct?
A: We did not test it, correct.
Q: And one of the reasons was because the BCA did not want to inflame the Source Code issue; is that right?
A: … [T]hat was at least part of the decision, but I don't know that that was the exclusive decision. I mean, there's also the incredible cost and time involved, and doing a software change, and ultimately we've been asking for money for three years for new instruments when we were hoping we would get that.
Q: What would be the cost of fixing this problem with the software?
A: The actual cost is in time and travel.
Q: How much would that be?
A: Several thousand, but I don't know.
Q: Several thousand dollars?
A: Several thousand, yes.
Q: How do you think that balances against people being erroneously deemed a refusal to test?
A: That would be my opinion. My opinion is I don't believe that I can tell you what the value of the State's money is. I don't think I can answer that question.
The home state supreme court of Intoxilyzer Manufacturer CMI, Inc. has rejected a driver's claim for the source code under Kentucky's version of a subpeona duces tecum. The court refused to determine whether drivers are entitled to inspect the software under the constitution's confrontation clause. In doing so, the court reversed the state's lowe court of appeals decision in State v. House.
House does not affect Minnesota litigation. Our State Supreme Court has already ruled that the source code is discoverable in State v. Brunner. In addition, the prcedural rules of Minnesota are much broader than Kentucky. The House court noted that subpeonas are "meant to permit pre-trial inspection of evidence to be admitted at trial. It is not meant to be a discovery device..." Such is not the case in Minnesota.
Today a Washington County District Court Judge ordered the government to return a vehicle seized more than two years ago. The city seized the new "Hummer" when my client was arrested for DWI – refusing to submit to a breath test. This was my client’s second arrest in ten years. He has not been convicted in either case. When a judge overturned the prior license revocation earlier this year, the state no longer had a basis to hold the vehicle in this case.
Although the prosecutor acknowledged that it had to return the truck, she conditioned the return of the vehicle on payment of $800 in storage fees. Although the city had kept the Hummer on its property and incurred no costs, it insisted on making a profit despite losing the case. The judge shot down the government’s position and ordered the city to return the vehicle without costs.
We're fighting to expose Minnesota's source code lawsuit for the sham it is. To be successful, we need the help of the country's top experts. One of the most valuable team members is Tom Workman from Boston, Massachusetts.
1.Under normal circumstances an expert would need about three months to examine the Intoxilyzer’s source code. But, under the limitations of the proposed settlement, the same expert would need 30 years to conduct the same examination!
2.Known Fatal flaws in the Minnesota Software have and continue to produce erroneous results. The state crime lab is aware of the bugs in the source code, yet has refused to install the corrected version provided by CMI.
3.An expert in copyright law, Mr. Workman demonstrates how CMI transferred ownership of the software to the State of Minnesota under the original contract.
4.Federal patent statutes prevent CMI from asserting the software is a trade secret without violating federal law.
The Minnesota Source Code War would not be possible without the resolve of the members of the Minnesota Society for Criminal Justice; my dedicated staff at Charles A. Ramsay & Associates, PLLC; and Thomas Workman. Also, thanks to Attorney Ryan Garry for generously donating his time and expertise. Please obtain Mr. Workman’s permission before using his declaration.
Check back soon for more information, documents and analysis as the Minnesota Source Code War continues to rage …
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