This post is the fifth part of our mutli-part blog series on the inadequacies of all breath tests in Minnesota. We will now provide illustrative examples, through the use of actual court transcripts, on how litigation on these issues have progressed. Essentially, we will now prove what we have been claiming all along: the Minnesota BCA knows breath tests conducted in the state are not valid, reliable and accurate, and will freely admit as much on the witness stand.
As a way of background, we have already told youthat all measurements are merely estimates of the true value of the measurand (the thing being measured, i.e. alcohol concentration). Now, here is an excerpt of a transcript form BCA scientist Karen Kierzek admitting that all breaths tests are estimates of the true alcohol concentration.
Because all measurements are estimates, how can we make sure that a test result are valid, reliable, and most importantly, accurate? The answer is known by all, provide the uncertainty of measurement. However, the Minnesota BCA has decided not only to forgo providing the measurement uncertainty, they have elected to not even calculate it, even though they freely admit it can be calculated. In other words, the BCA hasn’t done it because no one has made them follow this basic principle of metrology.
Admissions from the BCA do not stop there, and they only become more egregious. As a result of not calculating the measurement uncertainty, the breath test results are not traceable. Although we have already discussed traceability in this series, here is a transcript from Professor Andreas Stoltz from Michigan State University discussing the concept and its importance in the field of metrology. And here are three separate BCA scientists admitting breath test results in Minnesota are not traceable. (Johnson, Edin, and Kierzek)
Because the test results are not traceable, and because the measurement uncertainty is completely unknown, the BCA has had no choice to admit that they do not even know the outer bounds (or “cap”) of the measurement uncertainty. Even worse, they cannot even conclusively say whether the measurement uncertainty could affect the test result as much as + or- .10. Consider the consequences of such an admission: a 0.17 test result, which is an aggravated result of over twice the legal limit (0.16), affected by a negative .10 uncertainty leaves us with a 0.07 test result, below the legal threshold of 0.08.
With all of the inadequacies of the breath test results in this state, it is fair to ask: whose responsibility is it to ensure the breath test results are valid, accurate, and reliable? Well, here is a excerpt of the BCA’s answer to that very question. Although it will be patently obvious to you when reading, the BCA is unwilling to fully accept responsibility for the test results. Wonder why ...
Bernard v. Minnesota (14-1470): is it constitutional for a state to criminalize the act of refusing to submit to a warrantless DWI search?
Birchfield v. North Dakota (14-1468): Is it constitutional for a state to criminalize the act of refusing to submit to a warrantless DWI search?
Beylund v. North Dakota (14-1507): Is it constitutional for a state to claim that a driver "consented" to a warrantless search when that driver was threatened with the crime of refusal?
The briefs in support of the Appellants (Bernard, Birchfield, and Beylund) have already been filed, as have the briefs filed by several amicus curiae ("Friends of the Court," attorneys love using Latin phrases).
The briefs in support of Respondents (the States of Minnesota and North Dakota) filed their own briefs, and now we’ve received copies of the amicus curiae briefs filed in support of those Respondents (you can find links to those briefs below)
And, here’s your update: Four “amicus” briefs filed in support of Respondent’s, including a brief filed by the Solicitor General of the United States of America. There is also one amicus brief “in support of neither party.”
The dismantling of an unconstitutional statutory scheme is, evidently, a slow process.
As of Monday, we are one small step closer to constitutional fidelity. In its unpublished opinion in State v. Thach, the Minnesota Court of Appeals acknowledged that the search-incident-to-arrest exception does not apply to blood and urine tests:
In Trahan, this court held, based on the state’s concession, that Bernard does not apply to a blood test and that a warrantless blood test cannot be justified by the search-incident-to-arrest doctrine. Similarly, in Thompson, this court held that Bernard does not apply to a urine test and that a warrantless urine test cannot be justified by the search-incident-to-arrest doctrine. Collectively, Trahan and Thompson compel the conclusion that, in Thach’s case, the administration of a warrantless blood test or a warrantless urine test would not have been a valid search incident to his arrest.
This conclusion logically follows from the Court's rulings in Trahan and Thompson, so why blog about it?
Because every small step matters. In State v. Bernard, the Minnesota Supreme Court deliberately took no position on the application of its novel interpretation of the search-incident-to-arrest exception to blood and urine tests.
[T]he question of a blood or urine test incident to arrest is not before us, and we express no opinion as to whether a blood or urine test of a suspected drunk driver could be justified as a search incident to arrest.
The Court of Appeals' decision in Thach takes a position on the issue.
Because the state relies only on the search-incident-to-arrest doctrine, we must conclude that Thach had a fundamental right to refuse to submit to both chemical tests.
Even this small step is a step in the right direction.
What can we expect next from Minnesota appellate courts? I'd like to see the elimination of the "as applied" modifier in DWI test refusal cases. These constitutional principles apply to all warrantless blood and urine tests in the implied consent context. The test refusal statute is unconstitutional on its face.
Unless you’ve been living under a rock, you know that the United States Supreme Court will soon rule on the constitutionality, in the DWI context, of warrantless chemical testing and criminal punishment for refusing such testing.
But do you realize the potential enormity of the Court’s ruling in Bernard v. Minnesota?
The Supreme Court strives to confine its rulings to the specific legal issues in each case it reviews. The Court’s consolidation of three cases in Bernard v. Minnesota sets the stage for an uncharacteristically broad ruling.
The two criminal cases, Bernard (breath) and Birchfield (blood), suggest that the Court will rule on the constitutionality of criminalizing DWI testing in general, because they involve both a breath and a blood test.
The third case, Beylund, provides a much broader legal scope. Beylund is a civil implied consent case involving licensing penalties imposed, upon conviction for DWI, based on a warrantless, coerced-consent blood test. Beylund allows the Court to consider a host of contentious issues: the “free and voluntary” nature of constitutional “consent” under the Fourth Amendment, the constitutionality of implied consent property (driver’s license) deprivation, double jeopardy and double punishment due to the interplay between “civil” implied consent statutes and criminal DWI statutes, the "unconstitutional conditions" doctrine (can the state condition the right to drive on the surrender of constitutional rights?), and the constitutionality of legislative law that bypasses the Constitution.
Who knows, maybe the Court will even address the unintended legacy of South Dakota v. Neville: the categorical denial of Fifth Amendment/Miranda rights in the DWI context. (In 1983, the Neville Court found that a driver's submission to a warrantless blood test was not coerced because the driver waived his Miranda rights before the implied consent process, and because test refusal was not a crime.)
Just when we think the Fourth Amendment is out of the woods, another state appellate opinion comes down.
This time, in State v. Fawcett, the Minnesota Court of Appeals decided to disregard the Fourth Amendment “particularity” requirement, that all warrants must "particularly describ[e] the place to be searched, and the persons or things to be seized." **
According to Fawcett, this bedrock constitutional requirement doesn’t apply in the DWI context in Minnesota. (Am I the only one experiencing de ja vu?) In its ongoing efforts to exclude drivers suspected of DWI from Fourth Amendment protection, the Court of Appeals decided, in Fawcett, that the state can test drivers’ blood for things it did not specify in the warrant.
In Fawcett, law enforcement suspected Fawcett of driving while impaired by alcohol, so an officer obtained a warrant that authorized the state to collect Fawcett’s blood for alcohol testing. When it turned out the officer was wrong - testing revealed no alcohol in Fawcett’s blood - the BCA started a new search by testing Fawcett’s blood for the presence of prescription medicines and controlled substances.
Had the Court of Appeals upheld the particularity requirement, its message would be clear: the state has to obey the Constitution in all contexts. In response, the state would adapt its behavior to meet its constitutional obligations. Officers would know that they need to include “controlled substances” in the warrant request when they suspect impairment, and officers would know that they must request a warrant to authorize a second, expanded search for something new. (Officers already know these principles, and apply them in non-DWI cases.)
Instead, the Fawcett ruling endorses a legally risky and ethically questionable law enforcement practice. The particularity requirement is especially significant in cases involving blood samples because blood contains private, personal, and highly sensitive information, including genetic markers, pathogens, pregnancy, and other legally protected indicators.
As our own Chuck Ramsay explained to Minnesota Lawyer, the Court of Appeals “violated the basic constitutional principle” limiting the scope of searches.
**The "particularity" requirement lies at the end of the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Basically, when the state has established probable cause and wants to conduct a search, it has to specify where it wants to search, and what it is searching for, with particularity. For example, to get a search warrant, an officer can’t say, “I want to search the house for drugs;” the officer must specify: “I want to search apartment 101, at address X, for cocaine.” If the officer searches apartment 101, and doesn’t find cocaine, she can’t start over looking for marijuana instead. (If marijuana is lying on a table, in plain view, while the officer is searching for cocaine, then the “plain view” rule applies.) The officer can’t go back through the apartment, looking for marijuana, because the warrant authorizes the search for and seizure of cocaine, not marijuana.
Today at 2:00 p.m. the Minnesota Sentencing Guidelines Commission is holding a public hearing in Room 10 of the State Office Building, 100 Rev. Dr. Martin Luther King Jr. Blvd., St. Paul, MN 55155 to receive public comments on its proposed changes to the Minnesota Sentencing Guidelines.
Treatment offers the best alternative for interrupting the criminal justice cycle for offenders with drug and alcohol problems. Treatment also saves money. One study found that each dollar spent on substance abuse treatment saved $5.60 in terms of fewer arrests, incarcerations, food stamp use, and less child welfare and medical costs. - National Council on Alcoholism and Drug Dependence
The Commission will hold the record open for six calendar days after the public hearing to accept written comments. Submit comments to the Commission’s office at 309 Administration Building, 50 Sherburne Avenue, St. Paul, MN 55155; or by telephone at (651) 296-0144; or by e-mail at firstname.lastname@example.org.
Then, on Wednesday, December 30, 2015, at 2:00 p.m., the Commission will meet in Room 230 at the Minnesota Judicial Center, 25 Rev. Dr. Martin Luther King Jr. Blvd., St. Paul MN 55155, to formally adopt or reject the proposed amendments. If adopted, the amendments will become effective August 1, 2016, unless the Legislature by law provides otherwise.
If "public safety" is sufficient to selectively nullify the Fourth and Fifth Amendments, why wouldn't it also apply to the Second Amendment?
Here's a quote from the recent DWI case of State v. Bernard, tailored (altered text in brackets) to support a Second Amendment argument:
The state has a compelling interest in [public] safety justifying efforts to keep [guns out of the hands of the mentally ill/religious extremists]. [Requiring psychological/religious tests] to determine whether [gun owners/buyers] suspected of being [mentally ill/extremist] are in fact [mentally ill/extremist] is reasonably related to the government’s interest in keeping [guns out of the hands of the mentally ill/religious extremists].
Encouraging [gun owners/buyers] to submit to such tests, through criminalizing their refusal, furthers that interest. [And is therefore constitutional.]
Is that okay with you?
I deplore gun violence, and I don’t think civilians need AK-47 assault rifles. But until and unless at least 38 states ratify a constitutional amendment, I will defend the right to keep and bear arms.
Why? Because as an attorney, I took an oath to uphold the United States Constitution.
This Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution[.]
So why is Minnesota government defying the Constitution? And what remedy do we have?
Due process of law is the backbone of our legal system. Procedurally, the Constitution guarantees each of us the right to notice and an opportunity to be heard before the government takes away our life, liberty, or property.
A driver’s license is a property interest, and Minn. Stat. § 171.19 has finally been found unconstitutional because it authorizes the government to suspend a driver’s license without providing the driver with a prompt, meaningful opportunity to be heard.
“Petitioner” (one of our clients) received a notice of license suspension under Minn. Stat. § 171.19. We filed for judicial review. The district court granted our motion, and rescinded the suspension of our client’s license because, according to the Court:
[T]he failure of Minn. Stat. § 171.19 to provide Petitioner with prompt meaningful review after a prehearing suspension of his driver’s license renders the statute unconstitutional as it violates Petitioner’s rights to due process.
With no prompt hearing language, no authority for a court to stay the suspension pending a hearing, and no prompt decision deadline, a driver like Petitioner is left with the government taking away his protected private interest without prompt recourse to seek review. Without these safeguards, Petitioner’s private interest in the continued use of his license is not sufficiently protected under the due process of the law[.]
The Commissioner of Public Safety argued that the statute is just fine “given the availability of hardship relief in the form of limited licenses, the Ignition Interlock Program and other remedies, … combined with the fact that Petitioner received a hearing within 38 days of filing his petition[.]”
The Court didn’t buy it, and reminded the Commissioner that
[It is] the statute itself that fails to adequately provide Petitioner with proper procedural due process, and the record demonstrates that Petitioner has suffered prejudice from its failure to guarantee a prompt and meaningful review of his license suspension.
This is a welcome, long-overdue victory for individual rights and due process (and a satisfying outcome for our client).
Last night I enjoyed the distinct pleasure of seeing my favorite book transformed into a live play. Even if you've never read "To Kill a Mockingbird" watching Christopher Sergel's adaptation of that fantastic novel about racism and bravery in the South is well worth your time. But act fast, you've only got one more weekend before it's gone. The novel is good, this adaptation is good, and of course, the Guthrie Theater is always good, so go see it.
When I was in law school, a close friend gave me a copy of this book, with the inscription "If you're going to be an attorney, be one like Atticus." It's advice that has always stuck with me, and it's not just applicable to defense attorneys, but to every attorney who has taken an oath to uphold the Constitution.
Growing up, Atticus introduced many of us to many difficult-to-grasp concepts: the fact that there is, and always will be, evil and injustice in the world; this concept is contrasted with the fact that bravery to stand up to such injustice doesn't come from the barrel of a gun, but comes from within. When Atticus says "real courage is when you know you're licked before you begin, but you begin anyway and see it through no matter what" he's not just talking about defending a black man against institutional racism - it's one of those lessons that should guide all of us through our lives. You rarely win . . . but sometimes you do.
The actor I watched last night captured the essence of Atticus Finch perfectly. He was a fictional man who was just as conscientious helping a man with with is property problems as he was zealously defending a client charged with a heinous crime - the type of behavior that all non-fictional attorneys should aspire to emulate.
Harper Lee taught us that it's a sin to kill a mockingbird. She taught us that there is a higher truth, a moral compass that we as a society are expected to follow. But she also showed us that this "moral compass" doesn't work on its own - it requires brave men and courageous women to always be on hand to keep that compass pointed towards true north . . . and that this can often be a thankless task.
Atticus' task was thankless, but part of what makes this play so fantastic is how it makes it clear that Atticus will do his duty regardless of any recognition. But if you look close, you can still find it. Nothing sums up this sentiment more than the line "we're paying the highest tribute you can pay a man. We trust him to do right. It's that simple."
The criminal justice system works, when it works, because we trust good men and women to do right. It really is that simple. Prosecutors, judges, defense attorneys, victim's advocates, probation officers - all will make mistakes on occasion, because they are human, but while we cannot expect everyone to be as unerringly deserving of the "highest tribute" that Atticus Finch earned, we need to understand that as long as the players in the system understand their duty, in their hearts, they system will work as well as any human-designed system is capable of working. We will never have enough Atticus Finches, or enough Sheriff Tates, or enough Judge Taylors - and when we find them, we need to make sure we are paying them the "highest tribute" by trusting them to do right.
That's the lesson I learned from To Kill a Mockingbird, and the lesson that was demonstrated so clearly last night at the Guthrie. The system has failed before, and it will fail again, and sometimes it does seem like only the children weep over the injustice of it all . . . but in the background, every day, the same men and women of conscience go back to work, ready to do what they can to keep the system on the rails.
A final thought, one that struck me hard enough last night to stick with me in the morning (Lee tells us that "things are always better in the morning" which, sadly, isn't always true). When Scout was having difficulty understanding why Atticus was putting forth his best effort in a case he was expected to lose, she questioned her father's moral compass, noting that "most folks seem to think they're right and you're wrong."
Atticus responded with another gem of wisdom: "They're certainly entitled to think that, and they're entitled to full respect for their opinions . . . but before I can live with other folks I've got to live with myself. The one thing that doesn't abide by majority rule is a person's conscience."
Yesterday, before I got dressed up and took my wife to see a play, a majority of the Minnesota Supreme Court killed a mockingbird. Today, the criminal justice system in Minnesota is a little less brave and a little less courageous - a little less like Atticus Finch. Alan Pendleton will undoubtedly continue to be an incredible asset to the Minnesota bar despite yesterday's events; it is my sincere hope that the Minnesota bench recovers from yesterday's setback just as quickly. cus
I sat in on an expungement calendar recently (a court session dedicated to hearing expungement petitions) to get a sense of how Minnesota's new law is playing out in the courts.
Three things I learned from that calendar:
DWIs are expungable. I saw the judge grant an expungement petition for a gross misdemeanor DWI. That expunged DWI will not appear on a criminal record or a criminal background check. The State will still have the ability to use expunged DWIs for enhancement purposes in the event that an individual commits another DWI offense. The expungement liberates the individual from discrimination and collateral consequences based solely on the existence of a criminal record, without diminishing the power of the State under DWI law.
For convictions and stayed sentences, the length of time that must pass before you are eligible to apply for a statutory expungement starts upon discharge of the sentence for the crime(i.e., the date of discharge from probation - not the date of offense, conviction, or release from confinement).
Your official discharge of sentence will not occur until your fees and fines have been paid. Even if you completed probation years ago, you will not receive formal discharge (the expungement eligibility clock will not start running) until you’ve paid in full, or the financial obligation has been resolved through the collections process, which usually takes years.
I recently appeared with a client at her arraignment for 3rd degree Test Refusal and 4th degree DWI. I’ll call her Kate. Kate had never been in trouble before, and she was terrified. She had already borrowed money from her family to retain our firm, and just the thought of jail time and paying thousands of dollars in fines and fees as a consequence of a possible DWI conviction was overwhelming to the point of tears.
Even the prosecutor agrees that Kate didn’t willfully refuse to take an alcohol concentration test. Kate was pulled over for a minor traffic violation. Police records show that she was asked to take a breath test, and she took one, but the machine rejected the sample. She was asked to provide a urine sample, and she tried, but she didn’t have to pee. In Minnesota, that's a crime.
Kate’s inability to give breath or urine is a gross misdemeanor crime. That means up to a year in jail and a $3,000 fine, plus all of the rigmarole involved in begging the Department of Public Safety to not revoke Kate’s license so that she can drive to work and school. And—Kate’s primary concern—a permanent, public criminal record.
Specifically, Chuck and Dr. Jimmie Valentine will explain calibration, including why single point calibration is about as scientifically rigorous as jello on a grill. Then Chuck will demonstrate the witness examination techniques he's known and envied for: surgically precise questions that bring the State’s experts to their knees, and juries to their senses.
Joining Chuck at the podium will be:
Ted Vosk (Conference Moderator and Living DUI Legend) (pictured below)
as well as
Janine Arvizu (Traceability)
Peter Johnson (Traceability)
Dr. Jimmie Valentine (Calibration)
Dr. Ashley Emery (Measurement)
Joe St. Louis (Standards and Accreditation)
Chester Flaxmayer (Standards and Accreditation)
Mike Nichols (Uncertainty)
Dr. Andreas Stolz (Uncertainty)
Howard Stein (Science and Law)
Rod Frechette (Science and Law)
Here at Ramsay Law, we’ve got DUI defense down to a science.
Individuals on both sides of this issue are gathering at 4 p.m., at Gold Medal Park in Minneapolis, for what is sure to be a titillating conversation about gender equality and constitutional rights.
All guffaws aside, here at Ramsay Law Firm, we take the Constitution seriously. We would gratefully accept the opportunity to provide pro bono representation to any women arrested at today’s event for asserting their constitutional right to gender equality.
The State of Minnesota—courts, cops, and legislators—provides more constitutional protection to convicted criminals than it does to drivers arrested under suspicion of drunk driving.
You read that right. Incarcerated, guilty beyond a reasonable doubt, violent criminals enjoy greater constitutional liberty than innocent-until-proven-guilty drivers suspected of driving while impaired.
Note: Any course of action other than submitting to a test--even exercising the constitutional rights guaranteed by the Fifth Amendment (right to remain silent, no compelled self-incrimination)--is the crime of test refusal
What happens if the subject does not consent to give a blood sample?
Inmate does not take a test, no test is performed, and there are no penal or civil consequences
Driver does not take a test and is charged with DWI and test refusal
Driver submits against her will to avoid the criminal charge of test refusal, and the court later finds that she “voluntarily consented” under the totality of the circumstances (in Minnesota courts submission = consent)
Once again, we can see that the legal landscape is reaching one of those tipping points, where everything we thought we knew is turned on its head.
The United States Supreme Court just issued a decision, in California v. Patel, that should prompt those who believe Minnesota's test refusal law is constitutional to stop what they're doing, sit up, and listen.
The bottom line is: We can and will keep making the argument that Minnesota's test refusal statute is unconstitutional until we win.
1. Just like laws that involve other constitutional rights, state laws that involve the Fourth Amendment are subject to facial challenges. By "facial", the Supreme Court means that some laws are so blatantly unconstitutional as written--regardless of any possible fact scenario to which they might apply--that no court could enforce the law without violating the Constitution. The Court found the law in Patel, which authorized warrantless searches of hotel registry documents on demand, to be facially invalid.
2. SCOTUS said (again!) that it is unconstitutional for the state to make it a crime to refuse to submit to a warrantless search. To put things in perspective:
In Patel, the statute struck down by the Court made it a crime for hotel owners to refuse to permit a search of the hotel's guest registry: who checked in, how long they stayed, how they paid for the room, etcetera.
Here in Minnesota, the test refusal statute makes it a crime for drivers suspected of DWI to refuse to permit a search of their body: the chemical composition of their blood, breath, and urine.
The Constitution--on its face--provides far more protection for individuals' privacy and bodily integrity than it does for the comings and goings of guests in a hotel database.
We'll post soon about our recent efforts to bring Minnesota's test refusal law before the federal courts for review - but the takeaway message today is that Minnesota's DWI test refusal law may soon fall on its face.
For a driver with a breath alcohol concentration (BrAC) that straddles one of the statutory cutoffs (0.04, 0.08, 0.16), measurement uncertainty is reasonable doubt -- reasonable doubt that the BCA refuses to report.
A driver gives three breath samples. The device calculates three results: 0.08, 0.09, and 0.10. The different test results arise from a number of factors: the internal components of the test device, calibration, and environmental characteristics, to name a few. Without accounting for these factors--by presenting the average of the three samples, 0.09, as an actual BrAC--the prosecution is able to argue that there is no reasonable doubt.
That is not science.
It is scientifically impossible to achieve 100% accurate results. In this scenario, the variation between the three breath sample results clearly indicates some uncertainty of measurement. Because of this scientific reality, test results must be accompanied by the area around those results, known as a confidence interval, in which there is a high probability that the actual BrAC lies.
How is this confidence interval calculated? Here, the average is 0.09 (the sum of the three values, 0.27, divided by 3) and the standard deviation is 0.01 (the three results deviate from one another by 0.01). This means that a two-standard-deviation confidence interval (0.07, 0.11) has a high probability of containing the person’s true BrAC. Here, for the per se crime of driving with a BAC at or above 0.08, science establishes reasonable doubt.
But … not in Minnesota. Here, the BCA refuses to report measurement uncertainty in breath tests, even though other state courts have held that:
Given the requirements of due process, the discovery rules and [rules of evidence], therefore, the State must provide Defendants with a confidence interval for each Defendant’s breath-alcohol measurement. Absent this information, a defendant’s breath-alcohol measurement will be suppressed.
In other words, cherry picking is not allowed when it comes to science.
Bernard is a heck of a cloud, but we may have caught a glint of silver in a district court opinion this week.
It appears that Bernard's silver lining may be a return to the universal voluntariness of consent analysis, and the end of the DWI consent analysis double standard. (Follow these links to conduct your own comparison of non-DWI consent analysis and DWI consent analysis.)
In a district court order filed on Monday, the court ultimately used Bernard to validate the warrantless breath test, but the court found no voluntary consent:
The consent exception is not applicable in this case. Although Defendant ultimately submitted to the test, he made clear that he was not doing so voluntarily, as he believed his constitutional rights were being violated. As such, the Court must consider whether another exception to the warrant requirement applies.
Just like that.
Did we mention that Bernard filed his Petition for Certiorari with the U.S. Supreme Court on Monday? Bernard may go down as the case that restored meaningful consent. Silver lining indeed!
I think I know how the drafters of Magna Carta felt.
I was on call this weekend, taking late night calls from drivers arrested for DWI. It’s common for an arrestee to ask,
How can the police do this? I thought I had rights under the Constitution. They’re telling me that I have to give them blood or urine because it’s a crime not to. They won't even honor my right to remain silent. I don’t understand.
I think to myself, "Yeah, but those rights are no good here."
I tell the arrestee,
You’re right. In most other states you would have the right to a warrant, and you could remain silent, or refuse to give evidence, without automatically being charged with another crime.
Unfortunately, in the DWI context, Minnesota isn't like other states. Here, in your situation, it is a crime to exercise those rights. In Minnesota, the only way to not incriminate yourself for the crime of test refusal is to surrender your right to a warrant from a judge, and submit to a warrantless search.
Without fail, after the call, I sit at my kitchen table and think, "Are we officially back at square one?" Have we regressed to pre-Magna Carta times?
The constitutional right we value the most—no deprivations of life, liberty, or property without due process of law—began with Magna Carta. According to Chief Justice John Roberts, Magna Carta “laid the foundation for the ascent of liberty” and constitutional democracy.
In a nutshell, 800 years ago in England, King John was a tyrant. He took property and inflicted punishment without rhyme or reason because, as he famously said, “The law is in my mouth.”
On June 15, 1215, English barons presented King John with a written ultimatum, Magna Carta. They demanded legal certainty and fairness, a rational system of common laws, and the guarantee that judgment and punishment would be meted out by their peers based on evidence, and not arbitrarily from the throne. King John agreed to the barons' terms (for about 3 months).
Magna Carta’s 800th anniversary couldn’t have come at a better time for Minnesota. I'm looking forward to being able to tell arrestees, "your constitutional rights are good here," and then going back to sleep.
For DWI suspects in Minnesota, the right to consult with counsel has no bearing on the voluntariness of their “consent” to give blood, breath, or urine for testing.
Drivers have a constitutional right to refuse to consent to a warrantless search, and a statutory right to refuse to permit a chemical test, but lawyers can't advise drivers to exercise these rights, because doing so is a crime, for the client and the lawyer.
Under Minnesota law: Every person who commits or attempts to commit, conspires to commit, or aids or abets in the commission of any act declared in [Minnesota Chapter 169A - Driving While Impaired] to be an offense, whether individually or in connection with one or more other persons or as a principle, agent, or accessory, is guilty of that offense, and every person who falsely, fraudulently, forcefully, or willfully induces, causes, coerces, requires, permits, or directs another to violate any provision of this chapter is likewise guilty of that offense.
In Missouri v. McNeely, the United States Supreme Court made it unequivocally clear that chemical tests in the DWI context are not exempted from the Fourth Amendment warrant requirement by the search-incident-to-arrest exception.
Noting that “[s]earch warrants are ordinarily required for searches of dwellings,” we reasoned that “absent an emergency, no less could be required where intrusions into the human body are concerned,” even when the search was conducted following a lawful arrest.
Missouri v. McNeely, 133 S. Ct. 1552, 1558, 185 L. Ed. 2d 696 (2013).
There is no shame in making a mistake, so long as it is corrected at the earliest opportunity. I trust that this error will be corrected post-haste.
Right now in Minnesota, courts' interpretation of DWI law is all over the map – the law is uncertain, with more gray areas and questions than black-and-white answers.
Is "consent" to search relevant in the DWI context in Minnesota?
Is actual consent possible when "consent" is implied by law?
Do drivers have a "right" to refuse a test when exercising that "right" is a crime (test refusal)?
Does the Fourth Amendment even apply to DWI searches in Minnesota?
Currently, once a driver has been arrested for DWI in Minnesota there are only two possible outcomes: submit to a warrantless search (blood, breath, or urine), or get charged with a crime for refusing to submit. There doesn't seem to be much consent involved. And this appears to apply not only to drivers who have consumed alcohol; the same take-the-test-or-break-the-law "choice" must also be made by drivers who are simply driving while taking medication as prescribed.
We weren’t kidding when we said there are more questions than answers. We depend on judges to come up with the answers, but we can certainly pinpoint the source of all the questions and confusion: the legal fiction that our Implied Consent Law (which governs license revocations) and DWI law (which puts drivers in jail) are separate from each other.
The Minnesota legislature has decided—under the Implied Consent Law—that in exchange for their driving privileges, all drivers arrested for DWI impliedly “consent” to submit to a warrantless search (chemical test of blood, breath, or urine). If a driver refuses to take a test, or if the driver takes and "fails" the test (.08 or higher), the State takes away the driver's license.
The legislature has also decided—under the DWI statute—that driving with an alcohol concentration of .08 or higher is a criminal offense punishable by jail time.
The problem is that the legislature “crossed the streams” of the DWI and Implied Consent laws when it made it a crime, under the DWI law, to refuse to take a test under the Implied Consent Law. Together, the laws make it illegal for an arrested individual to refuse to submit to a warrantless search for criminal evidence.
This is a classic Catch-22 for the driver. By claiming the laws are still separate, the state is able to use a driver’s implied consent to take a chemical test (in exchange for a driver’s license) simultaneously as irrevocable "consent" to a warrantless search for criminal evidence.
Now, we aren't judges, but in our opinion this seems unconstitutional, for several reasons. First and foremost among them being the fact that “consent,” by definition, is permission freely and voluntarily given. Permission can always be withdrawn. If permission can’t be withdrawn (without incurring criminal penalty), it’s not voluntary, and therefore, it's not consent.
It wasn't that long ago that Minnesota judges agreed with us:
“The obvious and intended effect of the implied-consent law is to coerce the driver suspected of driving under the influence into ‘consenting’ to chemical testing, thereby allowing scientific evidence of his blood-alcohol content to be used against him in a subsequent prosecution for that offense[,]” Prideaux v. Minnesota, 1976, and "[a]n officer has a right to ask to search and an individual has a right to say no.” State v. George, 1997.
However, since 2013, in Missouri v. McNeely, when the United States Supreme Court clarified that the Fourth Amendment warrant requirement does indeed apply to DWI tests (again, blood, breath, and urine), Minnesota courts have issued a series of contradictory decisions – and there doesn't appear to be any end in sight.
For instance, in State v. Brooks(2013), the Minnesota Supreme Court noted that “[t]he Minnesota Legislature has given those who drive on Minnesota roads a right to refuse the chemical test[,]” and “by reading the implied consent advisory police made clear to [the driver] that he had a choice of whether to submit to testing.”
But this analysis depends on the legal fiction that the implied consent and DWI laws are separate. The statutory reality is thatunder the DWI statute, “[i]t is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under [the Implied Consent Law]," even though the Implied Consent Law says that “[i]f a person refuses to permit a test, then a test must not be given.”
Can a single act, such as test refusal, be both a right and a crime at the same time?
Wanna know our answer?
GET A WARRANT.
DWI suspects have the same constitutional rights as everyone else.
1. Collection and chemical testing of blood, breath, and urine are searches under the Fourth Amendment that require a warrant or consent;
2. Submission to a chemical test required by law, in order to avoid committing a crime by refusing to submit, is not consent; and
3. It is unconstitutional to criminalize refusal to submit to a warrantless search.
But we aren't judges, and according to case law, it appears that consent just isn't relevant in a post-Brooks world.
There is hope on the horizon . . . We expect to see new developments in this area from our federal courts in the near future. Stay tuned – it may be a while before the fog clears, but we’ll be here to help you navigate DWI law until it does.
There’s a particularly . . . odd . . . legal rumor going around, a rumor that is just plain false. The strange claim is being made that under existing precedent, the search incident to lawful arrest exception to the warrant requirement applies to chemical tests in the DWI context. For those familiar with the topic, this logic was the basis for the holding in the recent case of State v. Bernard. In that case, the Minnesota Supreme Court effectively created an entirely new exception to the traditional warrant requirement in DWI cases, repurposing the logic that applies when an officer searches for weapons to apply to the search for incriminating blood alcohol evidence.
Now, as the highest Court in Minnesota, the Minnesota Supreme Court certainly has the right to craft new exceptions to the Constitution for DWI cases (although the last time they tried this, the United States Supreme Court shot it down quite effectively). The Minnesota Supreme Court’s decision to try again, making a new exception, is not surprising.
What is surprising—the salacious rumor going around, which we’re going to nip in the bud right here—is that the Bernard decision is somehow a natural extension of preexisting law, and not a radical departure from what we’ve come to expect in terms of Constitutional protections.
The legal fact of the matter is that the Bernard majority’s holding is an unprecedented expansion of the quite clearly-defined scope of the search incident to arrest exception. Bernard is not only contrary to well-established federal law, but flies right in the face of the very case it’s trying to side-step – the Missouri v. McNeely decision from 2013. The Bernard majority basically concedes this in its opinion: “our research has not revealed a single case anywhere in the country that holds that a warrantless breath test is not permissible under the search-incident-to-a-valid-arrest exception.”
Is that the type of logic that supports a radical new definition of the Constitution? Or does it make more sense to conclude that the absence of evidence is not the same as evidence of absence? For example, our research has not revealed a single case that holds that a warrantless colonoscopy is not permissible under the search incident to a valid arrest exception. Does that mean that it clearly follows that law enforcement can begin inspecting everyone’s colon after a lawful arrest? Is that how we make law now?
That’s what’s troubling about the current legal landscape – Bernard created a new exception, and now prosecutors are trying to cement that exception into the minds of judges before it gets overturned by the United States Supreme Court. Neither justification for the search incident to arrest exception – officer safety, or the preservation of physical, destructible evidence – is present in the DWI context. Police perform a search incident to arrest, to make sure the arrestee has no weapons or destructible evidence on his person, when they initiate the arrest and take the suspect into custody. The arrest ends when the suspect is secured in a squad car. From that point on, the suspect has no weapons, and is incapable of destroying evidence of driving while impaired. It really is that simple.
By using “traditional case analysis methods,” coupled with science, we arrive at the same legal result.
Alcohol causes impairment only after it has been absorbed into the bloodstream. (Science)
The natural dissipation of alcohol in the blood is not a per se exception to the warrant requirement. (McNeely)
Breath tests are searches subject to the warrant requirement. (Skinner, Kyllo)
Minnesota law enforcement officers receive training on how to get a search warrant. (Rule 6700.0300)
Search warrants can be obtained via telephone in a matter of minutes. (Rule 36.01)
There are only two justifications for the search incident to lawful arrest exception: protecting police and the public by removing weapons, and preventing the destruction of tangible, destructible evidence. (Gant)
One of these two justifications must be present for the search incident to arrest exception to apply. (Gant)
Police perform a search incident to arrest, to make sure a suspect has no weapons or destructible evidence on his or her person, when they take a suspect into custody. (Gant)
Legally, a search incident to arrest must occur contemporaneously with the arrest. (Gant)
The police must observe a DWI suspect for a minimum of 15 minutes after the arrest before conducting a breath test. (Science)
Therefore, a breath test for alcohol concentration is not, legally or temporally, a search incident to arrest under clearly-established federal law.
Now, this is all a fun logic game . . . but then again, it’s also entirely unnecessary. After all, Missouri v. McNeely (the case that Bernard seeks to side step) already made it crystal clear that this “search incident to arrest” exception carries no weight in the DWI context:
Because ‘[s]earch warrants are ordinarily required for searches of dwellings,’ we reasoned that ‘absent an emergency, no less could be required where intrusions into the human body are concerned,’ even when the search was conducted following a lawful arrest * * * * We have never retreated, however, from our recognition that any compelled intrusion into the human body implicates significant, constitutionally protected privacy interests.
If someone tries to blind you with a wall of text, bad logic, or selective citation to authority—be especially wary of reliance on old law, and dissenting, i.e., minority, opinions—it is merely an attempt to convince you that this “search incident to arrest” exception is more than just a passing fancy. Ask them to explain the language from McNeely (quoted above) and then walk them through the 12-point “traditional case method analysis” listed above that. Trust us, they’ll be sputtering by the end.
Do you take prescription medication? Approximately 70% of Americans do.
If your medication is classified as Schedule I or Schedule II—Adderall, Ambien, Codeine, or Klonopin, for example—every time you get behind the wheel of a car, you are committing the crime of driving while impaired. If arrested, you will lose your driver’s license, and proving that you are taking medication as prescribed by your doctor won’t help you get it back.
In its decision, the Dornbusch court freely acknowledged that classifying medications—because of their potential for abuse—was never intended to thwart their prescribed use by drivers.
Remember, we’re not talking about street drugs or hardcore narcotics here. It is against the law to drive in Minnesota if any amount of certain medications people take every day—Ritalin, Xanax, Vicodin, to name just a few—is present in your body.
But the Dornbusch court nonetheless held that when any amount of a Schedule I or II medication is found in a chemical test—even when the driver was taking the medication as prescribed—a judge’s hands are tied. If the state has revoked your driver’s license for suspected DWI, a valid prescription will do nothing to help you get your driver’s license back.
Let me guess; this is the point where you, and many readers, are thinking, “Well, it’s only a crime if I get arrested while driving, and even if I get pulled over, I won’t be arrested for DWI, so I don’t need to worry.”
Think again. Law enforcement officers need only a minor traffic infraction to justify pulling you over. Once you’ve been stopped, an officer’s hunch, your bloodshot eyes, and an inability to stand perfectly still while balancing on one leg is all it takes to arrest you for DWI.
Coming up next: a recent example from the Court of Appeals of just how easy it is to find yourself under arrest for DWI.
For those of you who haven't read the Minnesota Supreme Court's decision in State v. Bernard, h
ere's the bottom line:
After Bernard, it appears that the Minnesota law that makes it a crime to refuse to submit to a warrantless, involuntary breath test is not unconstitutional. That's not what we were hoping for, but it's not all bad.
Let’s start with the good news.
1. No more "hypothetical warrant" nonsense.
In one short paragraph, the Supreme Court dismissed the Minnesota Court of Appeals’ attempted revival of the long-dead “hypothetical warrant doctrine." Here's what they said:
The court of appeals’ analysis is contrary to basic principles of Fourth Amendment law. … [W]e refuse to embrace the rule that the court of appeals applied in this case [the hypothetical warrant doctrine].
Very clear cut, and very refreshing.
2. Bernard applies to breath tests only.
The Bernard majority limited its holding to breath tests, so when it comes to blood and urine tests, it certainly appears that the warrant requirement applies in full force. Again, here's what the Court had to say about blood and urine tests:
[T]he question of a blood or urine test incident to arrest is not before us, and we express no opinion as to whether a blood or urine test of a suspected drunk driver could be justified as a search incident to arrest.
3. The two-justice dissent eloquently laid out a road map for reversing Bernard.
As the dissent points out, state court justices cannot cover their ears, shut their eyes, and “la, la, la…I can’t hear you” their way out of their duty to follow decisions of the Supreme Court of the United States on constitutional law. InMissouri v. McNeely, the U.S. Supreme Court definitively ruled that the potential loss of evidence due to dissipation of alcohol in the blood is not enough to justify an exception to the warrant requirement. The Bernard majority tried to get around McNeely by swapping one per se warrant exception for another one . . . and the dissent squarely called them out on it. Last time the Minnesota Supreme Court tried to circumvent the Constitution with a DWI exception, it only took the U.S. Supreme Court four years to shoot it down. How long will this new attempt last? It's hard to say . . . but let's look a little more closely at the dissent.
Dissent: Nice try with the search incident to arrest exception.
In general, the search incident to arrest exception allows the police to search a person and the area within the person’s reach for two reasons: to protect the police and preserve evidence. These two reasons have been the only justification for the exception since the judiciary created it.
The Bernard majority asserted that because the search incident to arrest exception allows police to search “a person,” extracting breath against a suspect’s will is no different from a pat-down for weapons or confiscation of contraband from a jacket pocket. Where the majority trips over itself is in its attempt to connect its definition of a breath test as a search of a person with either of the justifications--protecting police and preventing the destruction of evidence--that make the search incident to arrest exception reasonable.
Halitosis aside, a suspect’s breath presents no danger to the police, and there is nothing a suspect can do to destroy evidence of alcohol in the breath. But above all, nobody can forget that there is that binding federal precedent on this precise issue: Missouri v. McNeely determined that the natural dissipation of alcohol in the body is not enough to justify a categorical exception to a fundamental constitutional right. It was almost as if the U.S. Supreme Court envisioned Minnesota trying to create a new, flawed exception to the warrant requirement and tried to stop them before they got that far. If that was the case, they failed, in part because . . .
Dissent: The legislature can't criminalize the exercise of constitutional rights.
Finally, the Minnesota statute that criminalizes refusal to submit to testing does so regardless of the type of test refused. Therefore, with respect to blood and urine tests, Bernard is irrelevant. The majority itself admits (without explicitly stating it) that blood and urine tests still require a search warrant to pass constitutional muster, and suspects have the right to refuse any warrantless search the police need a warrant to legally conduct. Minnesota law criminalizes the exercise of that right. That is about as unconstitutional as it gets.
These are our first impressions of the Bernard decision. We'll go into greater depth in another blog post, fully dissecting the decision and its implications for the future (that post will get very legal-ly and wordy, so be warned - you'll want to bring your reading glasses). What we can say for certain right now is that it is highly unlikely that Bernard will be the last word on the constitutionality of Minnesota's test refusal law.
Here it is, at last. The opinion we've all been waiting for: State v. Bernard.
According to our Minnesota Supreme Court:
1. Because a warrantless search of appellant’s breath would have been constitutional as a search incident to a valid arrest, charging appellant with violating Minn. Stat. § 169A.20, subd. 2 (2014), for refusing to take a breathalyzer in this circumstance does not implicate a fundamental right.
2. Because Minn. Stat. § 169A.20, subd. 2, is a reasonable means to a permissive object, it does not violate appellant’s right to due process under the United States or Minnesota Constitutions.
Series: The Evolution of the Consent Search Doctrine
As we mentioned in our previous post in this series, the consent search exception to the Fourth Amendment warrant requirement is a relatively recent, judicially-crafted doctrine. Tracing its evolution—or should I say, devolution—reveals a gradual but steady shift away from actual consent (as the right of every individual) toward “consent” as “any cooperation with law enforcement in the absence of extreme and obvious coercion.”
The consent search exception has devolved into a law enforcement tool used liberally and intentionally by the authorities to pressure or trick individuals into doing what they are told.
Our decisions in this case and in [State v.] Dezso represent what I believe will be an ongoing attempt to come to grips with the increasing use by state troopers and police officers of subtle tactics to get motorists and others to “consent” to searches. It appears state troopers and police officers are receiving training on getting “consent” to search, similar to the training sales people receive in getting people to agree to buy things they do not want. One technique is to ask the defendant a question along the following lines: “You wouldn't mind if I looked in the truck, would you?” If the person says “no,” the officer searches. Consumer protection laws provide some protection to consumers who, as a result of sales pitches from sales people, “consent” to purchase products they do not want. We are not dealing with vacuum cleaners in this case but with the liberty and privacy interests of all the people of the State of Minnesota, and we have an obligation to ourselves and to the Constitution of this State to do what we can, in our limited role as a court of last resort, to provide reasonable protection to those interests.
How did we get here? Historically, Minnesota courts have construed the consent search exception to the warrant requirement more narrowly than the United States Supreme Court. In cases decided in 1969 (State v. Mitchell), 1970 (State v. High), and 1999 (State v. Harris), the Minnesota Supreme Court found that just the arrest—and even a pre-arrest seizure—of a suspect pretty much ruled out any “free and voluntary consent.” Their logic was simple and direct: once law enforcement has asserted its authority over you, law enforcement has authority over you. They have guns, tazers, chemical spray, retractable batons, and the training in how to use them; you have the duty to obey, to let them order you around, take your shoes and wallet, and lock your hands behind your back. The imbalance of power is inherently coercive, and it is the court’s duty to protect individuals from abuse of government power.
Decades worth of Minnesota judges enforcing the protections of the Fourth Amendment didn’t just happen in a vacuum. The Court’s decisions in Mitchell and High came in the wake of the federal government’s 1967 mandate that all states implement an implied consent law. Imagine the justices’ jaws dropping; what could be more ridiculous than finding that an individual gave free and voluntary consent when that “consent” was created by the legislature and automatically given when the individual got behind the wheel? Again, lest some take offense, the Court said it best in 1976, in Prideaux v. Dept. of Public Safety:
The obvious and intended effect of the implied-consent law is to coerce the driver suspected of driving under the influence into ‘consenting’ to chemical testing, thereby allowing scientific evidence of his blood-alcohol content to be used against him in a subsequent prosecution for that offense.
Those scare quotes around the word “consenting?” Those were added by the Supreme Court . . . the same Supreme Court that, approximately 37 years later, decided that the “obvious and intended effect of the implied-consent law” is to “make it clear to drivers that they have a choice as to whether to submit to testing.” That’s quite a turnaround.
So, we’ve seen the concept of “consent” evolve slowly over the course of decades, before seeing a sudden, radical redefinition of the concept in 2013. Before Brooks, putting a suspect in handcuffs was often enough to render any consent involuntary, and reading a driver the Implied Consent Advisory was “obviously coercive.” After Brooks, neither of those factors appear to matter.
So what does matter? We’ll discuss that in the next post, when we analyze Minnesota’s New Standard for the Consent Exception to the Fourth Amendment: State v. Brooks.
We interrupt the consent search blog series currently in progress to bring you breaking news: Minnesota district court judges are finally finding that submission to lawful authority is not consent. Relying on the 8th Circuit’s 2004 and 2005 decisions in U.S. v. Gray and U.S. v. Sanders, at least two brave judges are resuscitating the Fourth Amendment by reminding the State that an individual’s consent to a warrantless search may always be withdrawn. Drivers reserve the right to change their minds, and “no” once again means “no.”
Don’t break out the champagne yet, though. These brave district court judges, and their refreshingly true-to-the-constitution decisions, will likely face reversal on appeal when the Court of Appeals finds consent under its interpretation of State v. Brooks. We’re still looking, but we have yet to find a single DWI test coercion case the Court of Appeals couldn’t convert to consent.
So, what is the take-away? Lawyers need to understand the critical legal distinction between submission and consent so that they can effectively counsel drivers about their constitutional rights. In State v. Hoven, the Minnesota Supreme Court noted, as did the federal court in Gray and Sanders, that an individual may withdraw consent to a warrantless search.
In the DWI context, drivers have the constitutional right to see a warrant before law enforcement obtain a blood, breath, or urine sample. According to the courts, drivers should be able to withdraw their consent to a warrantless search by expressing their intent to withdraw consent with an unequivocal act or statement (I’ll give an example of what that looks like in a minute). Once a driver withdraws his or her consent, the driver may then submit to the warrantless test law enforcement tells them they are “required by law” to take … because submitting to that test is not the same thing as consenting to it. Without valid consent – or one of the other judicially-crafted exceptions to the constitution – the results of a warrantless test must be suppressed.
Attorneys cannot ethically or legally counsel a client to commit the crime of test refusal, but attorneys must inform clients that an unequivocal withdrawal of consent by word or action is a constitutional right. While this isn’t legal advice, something like this oughtta do it: “I withdraw my implied consent to a warrantless search and I do not freely and voluntarily consent to the warrantless test of my blood, breath, or urine. I am submitting to a chemical test only because I am required to do so by law, and I am acquiescing to a claim of lawful authority. I do not consent.”
Stay tuned for the next installment in the consent search series: The Evolution of the Consent Search Doctrine.
We first mentioned it last May: After years of effort, the Minnesota Legislature finally passed a bill making it substantially easier to for Minnesotans to finally be allowed to leave their past behind them and seal (expunge) certain records of prior criminal convictions. If you’ve ever been denied a job or housing because of an old conviction on your criminal record, this law is for you.
The process for sealing a criminal conviction, referred to as an “expungement,” can be time consuming, but with the radical new changes to Minnesota’s Expungement Law (which go into effect January 1, 2015), the legislature made it much, much easier to earn a clean slate.
This post is not designed to provide any legal advice – if you want to find out if you are eligible for an expungement of your criminal record, and want help getting it done, please call our office for a free consultation. That being said, it’s helpful to see exactly how the new law is laid out, and by providing the public with an easy-to-digest version of a fairly complicated law, we hope that more people that are now eligible for an expungement will take advantage of this opportunity as soon as possible.
One additional note: when we’re speaking about “expungements” in this post, we’re specifically talking about judges using the new power granted to them by the legislature to seal criminal convictions, hiding these convictions from background checks performed by employers or landlords. There are other types of expungements that apply to people who were never actually convicted (or never admitted any guilt in court) that are much easier to obtain, follow a simpler process - and that we'll talk about at a later date. This post is for those people who are stuck behind the 8 ball and need help erasing their criminal history.
EXPUNGEMENT PROCESS IN GENERAL: HURRY UP AND WAIT
Assuming you are eligible for an expungement, we’ll get to work on collecting the necessary information, filing the petition, and getting ready for the court hearing. But be ready to wait, because the expungement process takes time. Expect it to take a couple of weeks to pull together the information that needs to be included in the petition, and then to have the actual petition carefully crafted. Once the petition is filed, the court will not provide a hearing for at least 60 days, in order to give any victims and the government the opportunity to object to the request.
That hearing may involve your testimony, explaining to the judge why you need an expungement. It will certainly involve arguments by the attorneys, passionately explaining why you are the ideal candidate for an expungement, and why you deserve to be one of the many, many Minnesotans who are taking advantage of this new law. However, the expungement process doesn’t end with the hearing - unfortunately, there will be even more downtime after the hearing. In the best case scenario, where the judge rules immediately that you are entitled to have your record sealed, the law requires that order to be put on hold for 60 additional days, to give the government time to decide if they want to appeal the decision. If no appeal is filed, the agencies that control your criminal record will begin the process of sealing your record at the end of that 60 day period – which will be at least four months after the petition was actually filed.
WHAT CAN BE EXPUNGED:
Getting the expungement process moving only makes sense if there is a reasonable chance of success. Minnesota’s new law places certain restrictions on expungements, depending on the type of offense you or your loved one was convicted of, and how much time has passed since that conviction.
How long you have to wait will depend upon the severity of your conviction. In Minnesota, there are four levels of severity – a petty misdemeanor, a regular misdemeanor, a gross misdemeanor, and a felony. The level of conviction is determined entirely by your sentence; if the judge sentenced you to 90 days in jail (or put you on probation and threatened you with up to 90 days in jail if you violated the terms of your probation), you were convicted of a misdemeanor. If the judge sentenced you to anything more than a year in jail (even a year and a day) you were convicted of a felony.
The level of offense determines how long you need to be able to prove that you remained law abiding. For example, in order to expunge a misdemeanor conviction, you should wait two years after you successfully completed probation, and you cannot have been convicted of any new crime during that period. So, someone who got in a bar fight, pled guilty to misdemeanor assault, and was placed on probation for one year, would have to go three years without being convicted of a new crime before they would want to file a petition for an expungement of that conviction (one year of probation + two additional years of waiting due to the fact that the conviction was a misdemeanor = three years before filing an expungement petition).
Level of Offense
0 days of incarceration
1-90 days of incarceration
91-365 days of incarceration
A year and a day (or more) of incarceration
Time to Wait For an Expungement (After You’ve Been Discharged From Probation)
These are the general timeframes – but not all convictions are treated equally. This new law does not (currently) allow a judge to expunge domestic assault convictions or sexual assault convictions, or crimes related to these types of convictions, like violating Orders for Protection or Harassment Restraining Orders. This prohibition against expunging these types of assault applies whether the offense was a gross misdemeanor, felony, or any other level of offense.
There are additional restrictions on felony convictions, because the new law only applies to a very specific list of felonies. This list of felonies is a mix of what is commonly referred to as “white collar crimes,” types of theft and fraud, convictions for controlled substance (drug) crimes, certain types of arson, and some head scratchers like “Assaulting a Police Horse.”
But, assuming someone’s conviction was not for domestic or sexual assault, and it was not a felony conviction,they only need to wait the allotted period of time and it will be time to file that expungement petition. If the conviction was for a felony, they’ll still only have to wait the allotted period of time, but will just have to make sure that their conviction made “the list” of allowable offenses. Know that this "waiting period" is not set in stone, but that waiting will provide the best possible odds of success in getting this petition granted.
AT THE HEARING:
When seeking to expunge a criminal conviction, we will need to convince the judge with “clear and convincing evidence” that 1) the benefits of sealing the record outweigh 2) the disadvantages to the public (and public safety in general). This is a very fact-specific argument, and typically involves painting a careful and accurate picture of exactly what problems this criminal conviction have caused (such as inability to find employment, or be certified to work in a certain field, or rent an apartment) and why the judge should take the extraordinary step of completely sealing a criminal conviction from public view.
Are you thinking about getting an expungement? Has a prior criminal conviction made it difficult to find a job? Give us a call and we’ll talk you through the process and find out if an expungement petition can help solve your problems and give you a fresh start. But before you call, try and pull together the following information:
1. 1. A list of all your home addresses since the time of the incident you are looking to expunge;
2. 2. All the information you have from the incident, including copies of police reports, sentencing orders, written complaints – the more the better
3.3. Copies of any previous expungement petitions you or an attorney may have filed in the past.
And THAT’S IT! (for now, at least)
Now, there is A LOT MORE that went into this new expungement law, and again, this post is not designed to provide you with any legal advice. What we’ve provided here is the broad tools to allow you to quickly decide if an expungement looks like something you’d like to explore . . . but it’s just a starting point, a quick tool to use to determine if you may be eligible. Minnesota’s Second Chance Law is going to provide a lot of people with a fantastic, first-ever opportunity to remove prior convictions, and there is no guarantee that the Legislature won’t dramatically alter this law in the future. If you want to see a conviction removed from your record, have your gun rights restored, or try and get a professional license back, 2015 will be the best time for you to create a new you.
I'll tell you one thing I know for certain; there is not a judge in Minnesota that likes suppressing evidence. To a judge, throwing out evidence takes remarkable bravery, and is still a lot like taking a double dose of awful-tasting medicine - they know it's necessary to protect the integrity of the Constitution . . . but it's still a bitter pill to swallow. (Note: Ramsay Law Firm does everything it can to get evidence suppressed, and we don't lose any sleep over our victories).
But the suppression of evidence based upon the clear holding of McNeely is part of what makes Stearns County, MN, so remarkable. There, almost the entire bench has been proudly upholding the Constitution since the United States Supreme Court issued the McNeely decision, and suppressing warrantless blood, urine and breath tests. And, as reported by the St. Cloud Times, it turns out that getting warrants in routine DWI cases is really not that difficult.
“It’s OK, so far,” said Police Chief Blair Anderson. “It has not caused too much trouble for our folks in the field, thus far.”
Our firm practices across Minnesota, in any county that our client's need help. And in many of those counties, we hear the non-legal argument from prosecutors that "your argument can't possibly win, because it is impossible to get a warrant for every DWI case." Well, ladies and gentlemen, I think that Stearns County has shown that to be completely untrue.
As you are probably aware, the Minnesota Supreme Court recently heard oral arguments in the Brooks case. For newcomers, the Brooks case is the Minnesota Supreme Court's first chance to apply the holding in Missouri v. McNeely to a Minnesota DWI case. One question the Court is being asked to answer is, "are Minnesota driver's truly consenting to DWI searches when refusal to consent is treated as a separate crime?"
We know better than most that the odds of the United States Supreme Court accepting review of a case is very, very slight. However, in the Peppin case we have a reason to be at least a little optimistic that the Supreme Court will grant review - they already ordered the State of Minnesota to file a response to our petition. Opposing parties rarely file responses to petitions, and the State did not originally file one to our petition; however, it is incredibly rare for the SCOTUS to accept review of a case unless a response has been filed, meaning that at least one Justice felt it was appropriate to order a response from the Minnesota Attorney General's Office.
The Justices will decide the fate of the Peppin case at their September 30, 2013 Conference. If the petition is granted, it would be a remarkable, once-in-a-lifetime opportunity for our firm to be able to argue a constitutional question of such incredible importance before the highest Court in the land. We sincerely hope that our petition is granted . . .but even if it's not, we still have every intention of arguing against Minnesota's practice of coercing consent from its citizens for each and every one of our clients.
This case will have a crucial impact on the future of DWI cases across Minnesota, as the Minnesota Supreme Court will be asked to address warrantless DWI searches in the wake of the Missouri v. McNeely decision.
By way of background (for those who want to sound smart when discussing the Supreme Court's decision to grant accelerated review): the Brooks case (which is actually a consolidated set of cases) was originally reviewed by the Minnesota Court of Appeals back in 2012. That time around, the court concluded that "single-factor exigency" permitted warrantless urine and blood tests. The Brooks case eventually made its way to the United States Supreme Court, who accepted review, promptly overturned the conviction, and then returned the case to the Minnesota Court of Appeals with instructions to reconsider their decision in light of the McNeely case (which discarded the "single-factor exigency" doctrine).
This issue - the issue of consent - reaches the core of the arguments we're raising against DWI tests across the state. And rather than let this appeal run through the traditional process, which can take over a year, this grant of accelerated review means that the Brooks case will be the Minnesota Supreme Court's first opportunity to issue a decision with statewide impact - and they recognize how important such a decision is.
Of course, there's a lot more to this decision to grant accelerated review than meets the eye . . . stay tuned.
Minnesota Lawyer is reporting that Governor Dayton has selected David Lillehaug as the newest member of the Minnesota Supreme Court. Soon-to-be Justice Lillehaug will replace Justice Paul H. Anderson, slated to retire in May.
This appointment comes on the heels of Governor Dayton's recent appointment of Justice Wilhelmina M. Wright last September, and marks his second appointment to the state's highest court.
We'd simply like to take this moment to join the rest of the legal community in congratulating Mr. Lillehaug while looking forward to arguing before him in the future.
Under a shoot-first-ask-questions-later philosophy, the Minnesota Commissioner of Public Safety can take away drivers’ licenses without first conducting a hearing on the propriety of the revocation pursuant to the Minnesota Implied Consent Act. Although drivers may challenge the license revocation in court, it can take months before the case goes to court. Even in those cases where a judge ultimately orders license reinstatement, the damage is already done. There is no way to “undo” the loss of a license during the wait. But a major overhaul to the law may have so radically changed the legal landscape that the law is no longer constitutional.
Previous Constitutional Challenges to Minnesota’s Implied Consent Law
The Minnesota Supreme Court has found the basic premise of pre-hearing license revocation to be constitutional. In balancing the interests of public safety against the rights of individual drivers, the Minnesota Supreme Court upheld in Heddan v. Dirkswager (1983) that there were sufficient procedural safeguards to protect the private interest of the driver. At the time those protections included (1) the relatively short revocation period; (2) the immediate availability of a work permit; and (3) a speedy hearing.
After the legislature tinkered with the statute, the Minnesota Supreme Court warned the legislature in the 1994 Davis case not to further erode the procedural safeguards or it would strike down the law as unconstitutional. Although the court upheld the statute, it was troubled by the fact that “a court cannot undo an erroneous revocation,” because “full retroactive relief cannot be provided” and “even a day’s loss of a driver’s license could inflict grave injury upon a person.”
Minnesota Supreme Court: Law Violates Constitution
While it was not “prepared at [that] time to conclude that the legislation in question violate[d] either federal or state due process guarantees,” in 2003 the legislature removed drivers’ right to a prompt hearing. For the first time, the Minnesota Supreme found the law unconstitutional in Fedziuk v. Commissioner of Public Safety (2005), holding that that the law offended the constitution’s right to due process.
New, Radical Changes
Despite the Supreme Court’s early warnings and then later finding the Implied Consent Act unconstitutional, the 2010 legislature radically changed the implied consent law. In doing so, the legislature increased the duration of a first time misdemeanor revocation from 90 days to one year and completely removed the right to a work permit for those with an alleged alcohol concentration of .16 or more.
The legislature attempted to give the appearance of softening the blow to drivers by providing for “zero day eligibility” for ignition interlock. This is just a mirage. First, the administrative process is so unwieldy the Department of Public Safety has been unable to provide anything close to immediate reinstatement, even with the installation of the interlock devices. Second, the cost is prohibitive for most. While the costs vary, drivers must pay hundreds of dollars in fees for installation and monitoring to private carriers. They must pay a $680 reinstatement fee. Finally, they must fork over a four digit amount in advance for a one-year, non-cancellable insurance policy. Presumably, even if a court finds the revocation improper, it would be impossible to undo the erroneous revocation and provide full retroactive relief. Not only would the interim loss of the license inflict injury, but the driver would lose thousands in costs of the ignition interlock program and non-cancellable insurance.
The Risk of Erroneous License Revocation is Higher Today Than Ever
Finally, the risk of erroneous deprivation is higher today than ever. The state continues to use the Intoxilyzer 5000 for DUI breath testing, which does not always work properly according to the judge in the consolidated source code case. Or, it relies on DUI urine testing using procedures not accepted by the scientific community – and not used at all in any other jurisdiction in the entire country.
Our firm is raising this issue in almost every DUI case. There is no doubt it will eventually come before the Supreme Court. Will it find the law unconstitutional?
The issue in the case is whether the trial court erred by denying the driver the right to have a so-called Frye-Mack hearing, to determine whether the scientific community recognizes urine alcohol testing as generally reliable in DWI cases.
Minnesota appears to be the only jurisdiction in the country that routinely uses random sample first void urine testing to determine a specific level of alcohol concentration. Government agencies such as the National Highway Traffic Safety Administration and quasi-government agencies such as National Safety Council, Subcommittee on Alcohol and Other Drugs do not recommend urine testing for such purposes.
Our firm has pioneered this challenge in DWI cases and will be following this case closely. In fact, several of our clients’ cases have been accepted by the Minnesota Supreme Court for review, but have been stayed pending the outcome of Tanksley.
You can bet we’ll be following this closely and will post an update immediately after the arguments early next month.
Most counties seem to be of the opinion that they need to stay all proceedings pending a final decision by our Supreme Court. In our opinion, this is not only the smart option, but the only legal one. Minnesota Rule of Civil Appellate Procedure 108.01, subd. 2 makes it clear that our lower courts are prohibited from doing anything to affect the current source code appeal - which includes setting cases on for trial (cases that could then be “re-appealed” and effectively double the judicial system’s workload).
While most counties have followed this route, there are some exceptions - notably Anoka and Ramsey counties. In Anoka County, all of the previously stayed cases were returned to active judicial calendars after Judge Abrams issued his order. However, after the Minnesota Court of Appeals granted review of that order and the Supreme Court granted expedited review, Anoka County chose to reverse course - and continued to stay all Intoxilyzer breath test cases.
Ramsey County, on the other hand, who also originally stayed all of its Intoxilyzer cases, recently issued an order lifting that stay and ordering all cases to proceed. In light of Rule 108.01 and the currently pending motion to stay proceedings pending in front of the Supreme Court, it is unclear how much progress will be made on these cases . . . but as of today, every pending Intoxilyzer case is being pushed back on to Ramsey County judicial calendars.
It will be interesting to see how the situation in Ramsey County progresses. Maybe Ramsey County will reverse course in the same way that Anoka did (the coalition emailed the Ramsey County Court objecting to the new order). Or maybe Ramsey County will set hundreds of cases for trial, only to be ordered by the Supreme Court to cancel everything and wait for the conclusion of the appeal. Only time will tell, but for now, defendants and attorneys with Ramsey County DWI cases should be prepared to resume their cases while the final determination of whether Intoxilyzer test results are admissible is still up in the air.
The Minnesota Supreme Court has accepted accelerated review of the appeal that was made of Judge Abrams' Order as part of the consolidated Source Code litigation. This means that rather than arguing this case to the Minnesota Court of Appeals before appealing to the Minnesota Supreme Court, the case is being immediately sent to the highest court in the land. This should ensure the speediest possible resolution to the consolidated challenge to the Intoxilyzer 5000EN.
Many times the consequences for being arrested for DWI start before you even appear in court. A weekend arrest can mean that you sit in a jail cell – unable to post bail – until Monday morning. An arrest during the work week can mean spending two or more days in jail before you even appear in front of a judge. And regardless of your alcohol concentration, an arrest can sometimes lead to being held in a secured detox facility for at least 72 hours.
This is a major problem for people who have jobs to get to, kids at home, or value their freedom. Being held in custody, for days, without even appearing in front of a judge is a degrading and demeaning experience. Luckily, there are ways to avoid the long wait, and get back to your life.
When you or a loved one is being held in detox, we can file a writ to have them immediately released . . . even on a weekend. If someone is being held in jail pending a hearing, we can contact a judge and, in most cases, either get them released outright, or at least get bail set so that they can go home.
Sitting in jail for three days just because you were arrested for (not convicted of) DWI is an avoidable situation, as long as you know what to do and how to properly do it.
We were probably the first attorneys in Minnesota to start bringing Frye-Mack challenges against the practice of using urine tests to prosecute drivers for DWI.
Now, one of the first cases where we raised this argument has finally made its way to the Minnesota Supreme Court, which just accepted review of our case, State v. Boeder.
This is part of a clear trend - the Minnesota Supreme Court seems ready and willing to address head-on the basic fact that scientists worldwide reject urine testing for DWI cases. Stay tuned . . . things are about to get even more interesting.
Judge Abrams ruled at the conclusion of the consolidated source code hearings that the Intoxilyzer cannot reliably determine deficient samples. Unlike most Intoxilyzer test results, which were deemed admissible, Judge Abrams ruled that test results reporting a sample as “deficient” should not be allowed into evidence. Specifically, he stated that:
In cases in which the Intoxilyzer 5000EN ... reported a “Deficient Sample,” the Source Code of the instrument does impact the reliability, solely, of this result. Evidence of such cases of a “Deficient Sample” test report should not be allowed unless other evidence exists which provides reasons and/or observations of testing which supports the sample being deficient.
Judge Abrams explicitly found that the Intoxilyzer cannot properly determine a deficient sample - and therefore does not support a charge of test refusal. In the order, it appears that the door has been left open for the government to bolster this faulty test result with “other evidence” that the test subject “refused” to provide a valid sample. However, the actual state of the law in Minnesota says the opposite - under Minnesota law, only a breath test machine that determines a deficient sample, not the officer.
Minnesota’s DWI laws make it a crime to “refuse” alcohol testing, which is defined as a “failure of a person to provide two separate, adequate breath samples in the proper sequence . . .” Minn.Stat. § 169A.51, subd. 5(c) (2010). A sample is defined as “adequate” if, “the instrument analyzes the sample and does not indicate the sample is deficient.” Id.,subd. 5(b). A plain reading of these statutes means that only the Intoxilyzer test result, and not the opinions of an officer, determine if a person actually “refused” to provide an adequate sample.
We know, because we recently won on this issue in front of the Minnesota Court of Appeals, in Hansen v. Comm’r of Pub. Safety. In Hansen (a “deficient sample” case) the trial court judge ruled that the source code was irrelevant, because “other evidence” besides the Intoxilyzer test result proved that our client refused to provide a valid sample. We disagreed, and appealed. The Court of Appeals reversed the trial judge’s decision in favor of our client.
In Hansen, the Minnesota Court of Appeals said,
We have held that an identically worded statute “makes it clear that the Intoxilyzer, not the police officer, is to determine the adequacy of a breath sample.” Genia v. Comm'r of Pub. Safety, 382 N.W.2d 284, 286 (Minn.App.1986). And we found no statutory authority that, once the breath test began, “a refusal can be based on an officer's conclusion that a driver is not making a good-faith effort to provide an adequate sample.” Id.
Hansen at *4.
So, it’s clear that only a breath test machine (for now, the Intoxilyzer 5000EN) can determine whether a breath sample is deficient. Any officer’s subjective opinions are irrelevant. What this means is that the government can only prove a “refusal by conduct” charge by presenting a test result that lists the sample as “deficient.” And as long as the State continues to use the outdated, broken and error-prone Intoxilyzer, any “deficient” result cannot be admitted into evidence.
For years now, we’ve blogged about problems with the Intoxilyzer 5000 - and one problem in particular. In a typical scenario, a driver is arrested for DWI and told that they have to submit to a breath test. They try - and try, and try - but the machine will not accept the sample, and ultimately reports a “deficient sample.” These people are charged with the crime of Test Refusal (always a gross-misdemeanor, sometimes a felony).
In court, the arresting officer will usually say that the driver was trying to “fool the machine” by blowing around the straw, blocking the straw with their tongue, or not actually blowing any air. This may be true in some cases, but in our experience, its more likely that the driver WAS trying to give a sample - and the machine still rejected it, for reasons unknown.
The question is “who should the judge trust?” The arresting officer, the driver, or the machine? The answer matters, because if the court chooses to trust the officer, the driver is going to lose; if the judge decides to “trust” the machine, it means that the defense needs to have the opportunity to examine that machine’s source code - and the driver can win.
We recently won a huge case at the Court of Appeals that helps settle the matter. In Hansen v. Commissioner of Public Safety, we convinced the Court that it takes more than the testimony of the arresting officer to convict someone of test refusal - the machine itself needs to be analyzed. This is a potentially huge win for our clients and for anyone else charged with “refusal by conduct.” It means that the Courts are finally beginning to accept what we’ve said all along - the Intoxilyzer is not a perfect machine, and one area where it is prone to failure is when it deems otherwise-valid samples “deficient” for unknown reasons.
Minnesota is one of few states that actually make it a crime to refuse to submit to chemical testing (most simply to increase the duration of any driver’s license revocation). This has huge constitutional implications - such as violating a driver’s Fifth Amendment right against Self-Incrimination - but can also be misleading.
Despite what every Minnesota police officer will tell you, it may NOT be a crime to refuse to submit to a blood test after you’ve been arrested for DWI.
In fact, if you do refuse to submit to a blood test, and the government charges you with test refusal, we might actually be able to get the charges dismissed. That’s because Minnesota law specifically prohibits drivers from being punished for refusing to submit to a blood or urine test unless another test was also offered.
If an arresting officer told you that you’d be charged with test refusal if you did not submit to a blood sample, he or she was not telling you the whole story. If you were charged with test refusal without being offered a blood test AND either a urine or breath test, you’ve got a very good chance of outright winning your case.
At the end of last week, the State finished presenting its evidence in support of the continued use of the Intoxilyzer 5000 to prosecute Minnesota drivers for DWI. All of the evidence has now been submitted to Judge Abrams; it is expected that he will issue an order in early 2011.
It was a long, hard road to get to this point, and far longer than it had to be - if the State had complied with our basic, standard discovery requests years ago, this challenge to the Intoxilyzer would have long since been finished. Instead, the State fought us tooth and nail the entire way: fellow members of the trial team have been to the Supreme Court not once, but twice, demanding access to the software that controls the Intoxilyzer. Our firm spent countless hours litigating the same issue in Federal Court, doing everything we could to ensure that we received actual access to the source code, rather than the sham settlement that was originally reached between the State and CMI.
Once the groundwork had been laid, we pulled together a truly impressive coalition of defense attorneys to help foot the enormous costs that go into a detailed review of an embedded system like the Intoxiliyzer. And now, finally, after years of preparation and litigation, the evidence we’ve been demanding for years has been presented in open court, and we’ve reached the calm before the storm.
We’ll be filing our final written arguments by the end of January. Given the volumes of testimony presented, it’s likely that Judge Abrams won’t issue a final order until April of 2011. It’s a waiting game now, with over 4,000 cases at stake, and we’re optimistic about the outcome.
The Minnesota Court of Appeals issued a decision this week dealing with urine testing, an issue we’ve blogged about extensively. In State v. Edstrom, the Court said (in dicta) that first void urine testing is generally accepted by forensic toxicologists as a valid measurement for per se intoxication.
Even a casual review of the case, however, demonstrates that this decision carries no real weight. The issues raised in this appeal did not involve “general acceptance” of the urine test (known as the Frye-Mack test); the issue was whether the lower court improperly suppressed the urine test as being “unduly prejudicial” (a standard rule of evidence that is not specific to scientific tests, like Frey-Mack).
Despite the fact that the Frye issue wasn’t even presented or briefed, the court took a walk in the woods and addressed whether evaluation of a urine sample with gas chromatography is generally accepted by the scientific community. Here’s the thing - it is. In fact, in the dozens of cases we have pending around the state we waived the issue of whether the evaluation is generally accepted. Instead, we require the state to meet its burden to demonstrate that the administration of the test is generally accepted.
Because the issue wasn’t properly raised in the lower court, the Edstrom court completely failed to understand the actual issue. The issue, of course, is that every forensic test has two separate but equal components - the collection of the forensic sample, and the subsequent analysis of that forensic sample (as the saying goes, “garbage in = garbage out”). While the Edstrom Court went out of its way to try and rule on an issue that it was not asked to address, it did not even address the full issue in this decision.
It is Minnesota’s method of collecting urine samples that render the results unscientific, not the subsequent analysis. Imagine if every DWI blood draw performed in Minnesota was done after the nurse had used an alcohol swab on the donor’s arm. Would you trust the analysis of any of those samples? Of course not - it’d be downright stupid to do so (especially when its almost as easy to use a non-alcohol swab instead). What’s outrageous is that first void urine testing is a far worse method of sample collection than our alcohol swab example. And that’s not my opinion - that’s the opinion of almost every single peer-reviewed article in existence, alongside the institutional opinions of SOFT, the NRC, NHTSA, and the Borkenstein Institute.
The entire basis for the Court’s determination that first-void urine testing passes the Frye test was one incredibly illogical sentence: “And there is no evidence to suggest that gas headspace chromatography is any less accepted by the scientific community when it is used on a first-void, as opposed to a later-void, urine sample.” Edstrom, page 10.
When we hold a Frye-Mack hearing, we present volumes of evidence that directly contract the above cited one-liner. In fact, no fewer than four major, renowned scientific bodies have made it clear that first void urine testing should not be used to determine a per se level of impairment:
All in all, the Edstrom decision stands for nothing unique, and the holding simply places a rubber stamp on something we already agree about - gas headspace chromatography is a great way to analyze fluid samples. We’ve held numerous Frye hearings where we have made it crystal clear that we are challenging the collection, not the analysis, of the urine samples in question, and despite the holding in Edstrom,we plan on holding even more hearings in the future. We’ll continue to do everything within our power to demonstrate why every forensic scientist (except those employed by the State of Minnesota) reject urine testing.
Today, the members of the trial team for the Source Code Coalition finished presenting our evidence. At stake are over 4,000 DWI criminal and civil cases that rely almost entirely on test results produced by the Intoxilyzer 5000's “source code.”
Once we finished presenting our evidence, the State made a motion for a directed verdict - in effect, claiming that the defense failed to demonstrate that the Intoxilyzer 5000 is an error prone, faulty machine. Judge Abrams quickly ruled in our favor, and we have indeed made a prima facie case that the Intoxilyzer does not produce valid and reliable results in all cases.
This ruling is a great victory for both the Coalition and for all Minnesota drivers, and underscores the fact that this machine is indeed flawed. We’ve said for years that there are problems with this machine, and have repeatedly asked for nothing more than an opportunity to prove our case. Now we’ve done our part, and proved our case- and the State has no choice but to try and rebut the evidence that we’ve presented, because otherwise the Intoxilyzer test results would be deemed inadmissible in court. The State is going to start attempting to meet that burden this afternoon.
We expect the State to spend most of next week trying to overcome the evidence we’ve presented. While the judge hasn’t issued a final ruling in this case (and likely won’t do so for some time) today’s ruling in our favor is a promising sign of things to come.
As members of the trial team and lead counsel for the consolidated challenge against the Intoxilyzer 5000, we’ve spent the last few months working overtime in preparation for the hearing that started on December 8, 2010. We’ve already presented three days of expert testimony, and aren’t even halfway done - but we’ve already presented substantial evidence that calls into question the “scientific results” that come out of this machine.
1) The Intoxilyzer does not, to a reasonable degree of scientific certainty, accurately report alcohol concentrations. For example, an Intoxilyzer test result of .08 does not actually mean, and cannot be used to show, an alcohol concentration of .08.
2) Numerous scientific safeguards that are supposed to ensure that Intoxilyzer results are valid and reliable simply don’t work. This includes some shocking revelations, including the fact that the Intoxilyzer just flat out cannot properly measure breath volume, despite claims to the contrary. The Intoxilyzer also reports the presence of alcohol when a totally “clean” air sample is provided. Basic safeguards, like the ability to detect interferents (non-alcohol substances that show up as alcohol), the ability to detect radio frequency interference, and various “self-tests” all fail to work as advertised.
3) Essential components of the Intoxilyzer can be disabled without sending up any red flags. This includes heating elements and interferent detectors that are essential to providing consistent, reliable results.
4) The “slope detector” is shaping up to be about as faulty as we expected. Many people are being charged with “test refusal” because source code errors are reporting otherwise valid samples as “deficient.”
Numerous other flaws have been exposed, all leading towards the final question: can we trust this machine to ensure that our roads remain safe, or is it little more than a “random number generator” that is sending innocent people to jail?
This week we expect to get even more information as we examine several experts from the Minnesota Bureau of Criminal Apprehension, as well as experts in breath testing from other States. Stay tuned!
The steady progress of science has plenty of consequences for anyone arrested for DWI - and not just regarding the test the State performs to determine your level of intoxication. Before the government can even test your blood, breath or urine, a police officer needs to have probable cause to arrest you.
Probable cause is usually determined by observations of the officer and performance on field sobriety tests. Unfortunately, this sometimes means that defense attorneys have little to go on other than what the police officer chooses to write in their after-the-fact police report. Luckily, due to advances in technology, we’re seeing more and more video evidence taken at the scene of the stop.
We always request all the audio and video evidence collected by the government whenever we represent a client charged with a DWI. Review of that evidence can take what appeared to be a difficult case and turn it into a slam-dunk. Review of any video evidence provides a good defense attorney with many opportunities to win a case:
- Were you really “slurring your speech” or “stumbling” (every police report I’ve read claims as much)
-Did the officer properly and accurately perform the three Standard Field Sobriety Tests (you’d honestly be shocked at how many officers fail on this point, and how often this can lead to an outright dismissal of your charges)
-Did the officer actually provide you with an opportunity to consult with an attorney?
We look forward to the day when every officer is wearing a video camera - it provides so many additional opportunities to scrutinize the arrest process, and can in turn lead to a dismissal of all charges.
After years of carefully crafted discovery requests, and a lengthy lawsuit in Federal Court, the source code to the Intoxilyzer 5000EN was finally released to the experts hired by the Source Code Coalition.
The Supreme Court ordered a state-wide consolidated hearing be held on the validity and reliability of the Intoxilyzer. That hearing is scheduled for December 8, 2010 before the Honorable Judge Abrams, district court judge for the First Judicial District.
As a member of the trial team and as lead counsel for this complex and controversial hearing, we’ve been working overtime to prepare all of our experts and exhibits for what is bound to be an eye-opening hearing. It is expected that Judge Abrams will issue a final decision on this matter in early 2011. It is also likely that his decision will be appealed by at least one of the parties to the consolidated case, creating considerable uncertainty in what the future status of the Intoxilyzer will be.
Joel Watne, 72, a lawyer with the Office of the Minnesota Attorney General, is also being phased out. This week, Joel retired after 37 years as a lawyer. While Joel may not be personally responsible for as many revocations and convictions, he has an impressive resume.
Joel wrote and lobbied for many of Minnesota’s DWI laws. He has logged over 11,700 court appearances, handled over 300 appeals in Minnesota Supreme Court and Court of Appeals and some in federal court, including the 8th Circuit Court of Appeals and U.S. Supreme Court according to his Linked-In page.
Last week I appeared in a civil implied consent hearing in Dakota County. Joel was my opponent. That battle was Joel’s last court appearance.
As a criminal defense attorney, I won’t miss Joel. He was always a pain the neck and always gave it his best. Because Joel handled primarily civil implied consent cases, he was not subject to the higher ethical standards of criminal prosecutors– his duty was not to “do justice” but, like a defense attorney, to zealously pursue his case and do whatever it took to win. He was passionate about keeping our roads safe and used every weapon in his arsenal to win – whether I thought it was fair or not.
He was passionate about his work and always brought his A-game. He was a resource for not only the other lawyers in the Attorney General’s office, but for peace officers and prosecutors around the state. As a husband and father of two young children, my family is safer because of his efforts. As a tax payer, I recognize the state got its money’s worth out of Joel and thank him for his 37 years of service.
Unfortunately, few judges are willing to put their own necks on the line and completely ignore Minnesota’s DWI bail laws. However, many judges will listen to (and agree with) the argument that the bail statute itself does not even apply to many DWI defendants. I’ve used this argument many times in a situation where the court was going to charge my client $12,000 bail, and instead chose to release him or her without requiring any bail.
The DWI maximum bail statute defines when maximum bail is required. It supposedly requires maximum bail ($12,000) in all cases where a defendant is charged with second degree DWI (a DWI with two aggravating factors), whenever a test result reports an alcohol concentration at or above .20, or whenever someone under the age of 16 is in the vehicle. Other situations are also covered, such as when someone under the age of 19 is charged with third degree DWI, or when someone was caught driving with a canceled driver’s license.
The statute supposedly “requires” that anyone charged with a DWI under these situations be arrested immediately, and held until their first court appearance. This is the key - the requirement that these offenders be both arrested and held in custody. Put another way, if the officer does not have an offender held in custody until their first court appearance, the maximum bail statute, by its own terms, does not apply.
This situation comes into play all the time, especially in blood or urine test cases. These tests typically take at least a month to complete, so there is rarely a basis to hold someone in custody until their first court appearance. What happens instead is that the person is notified, a month or more after their arrest, that their test result came back above the legal limit. Then, overzealous prosecutors issue an arrest warrant, and expect people to post $12,000 bail long after they had already been released from custody!
It sounds absurd, but it happens, it happens regularly, and it happens in situations where defense attorneys should know better. Time and time again potential clients call our office, upset that they were forced to post thousands of dollars in bail after they had already been released from custody. It’s frustrating, because if we had been involved earlier, we likely could have prevented any bail from being ordered at all. All it takes is a careful argument to the judge, explaining why the maximum bail statute doesn’t cover situations where someone has already been released from custody!
If you’ve been arrested for DWI, and are awaiting the results of a blood or urine test, you need an attorney before, not after, the test results come back. Waiting will often be an expensive mistake - and a mistake that, with a little legal experience, can be completely avoided.
Our “Freedom Through Independence” series chronicled our ability to use retested samples to win DWI cases for our clients. Since then, the government has repeatedly thrown in the towel and dismissed our DWI cases whenever our retest has contradicted the state’s alcohol test result. After publishing our blog series, more and more lawyers followed our advice and began retesting DWI blood and urine samples.
As a result, the state faced many more cases where the state’s DWI test results were contested, forcing the government to change its tactics. Now, the government is actually trying to fight back in cases where our independent retest refutes the state’s own test.
The Judge Rules: Two Different Test Results = State Loss
The state is now finding out the hard way that if they try to fight against retested samples, the end result is no different than if it had just dismissed its case from the outset. Last week a judge rendered the first written decision in years on this issue, and clearly held that if a retested sample produces different results than the state’s test, the state is going to lose.
In that case, the driver submitted to a urine sample after being arrested for DWI. The officer collected the sample, and submitted it to the Minnesota Bureau of Criminal Apprehension ("BCA") for analysis. The BCA’s analysis resulted in an alcohol concentration of 0.08.
Several months after the BCA performed its analysis, the driver’s frozen sample was independently analyzed by Regions Hospital. Regions Hospital’s analysis resulted in an alcohol concentration of .06. The difference between .08 and .06 is huge, for two reasons. First, a difference of .02 between the samples proves that urine testing fails one of the main tenets of the scientific method: the ability to consistently reproduce statistically reliable results. Second, one test is above the legal limit, while the other is clearly below that limit.
A nervous BCA employee testified, offering several possible explanations for the dramatically different test results:
1) A difference in testing methods between the BCA and Regions Hospital (The BCA does not contest Regions Hospital’s independent lab results, and in fact has approved its methods and procedures for testing urine for alcohol concentration.)
3) An improper seal on the sample container permitted ethanol to escape the container.
All these “explanations” make the BCA look bad, but the driver’s attorney noted a fourth, even more troubling possibility; that the analysis performed by the BCA was inaccurate and the analysis performed by Regions Hospital was accurate.
The judge wrote in his order:
In this case the Court has been presented with two equally valid samples with disparate results. One result supports the revocation of the Petitioner's license while the other does not.
The Commissioner, however, bears the burden of proving it is more likely than not that the Petitioner was operating a motor vehicle with an alcohol concentration of 0.08 or more. The evidence presented is not sufficient to overcome this burden. It is equally possible the Petitioner had an alcohol concentration of 0.08 or 0.06767. The Commissioner has therefore failed to prove the requisite alcohol concentration justifying revocation of the Petitioner's license.
The judge correctly ordered the government reinstate the driver’s license and remove any reference to the license revocation from his driving record.
This case raises as many questions as it answers. Had this been a criminal case, what would a jury have decided? We think that a court should not even permit the state to present this evidence to a jury, since no reasonable juror could find the state could meet its burden of proof beyond a reasonable doubt.
This raises other questions as well, such as “how long will the BCA continue to freeze DWI test samples after testing?” “What are the differences between the BCA and Regions’ testing methods?” and “Whose testing method is more accurate?”
And of course, all of these questions lead directly to the one question I’ve been asking for years. It’s a simple question, and yet it has gone unanswered for far too long.
Why does our state remain as one of the only places in the world that still use urine testing?
Congratulations to defense attorney, Ed Cohen, for his work against the Office of the Attorney General in the implied consent case.
As we blogged about in part one of this three-part series on bail arguments, most Minnesota judges think that they are required by law to set bail in DWI cases. It turns out that the majority of people arrested for DWI are supposedly required to pay the State thousands of dollars for the privilege of being allowed to go home, go back to work, see their families, and try to bring some semblance of normalcy to their lives.
Generally, bail serves an important purpose. It ensures that criminal defendants who may be likely to flee prosecution have an incentive to show up for court. However, determining who is and is not likely to flee is a very fact specific inquiry, and can differ from person to person. Whether a specific person is a risk to “public safety” is another reason to require bail - another factor that depends on the character and background of each individual.
One purpose bail can not serve is to “punish” someone before trial. Bail only exists to ensure that defendant’s appear in court, while allowing them to continue to lead their lives until their court case is resolved. This is why every Minnesotan has a constitutional right under Article 1, Section 7 to post bail, and cannot be held “without bail.”
This is one of two reasons why Minnesota’s DWI Bail Statute is unconstitutional. It assumes that every person arrested for DWI is a flight risk, and automatically requires bail for all but some types of first time offenders. For example, if you are arrested for DWI and have one prior offense within the past ten years, an alcohol concentration above a .20, or someone in your vehicle under the age of 16, the law states that you must post $12,000 bail in order to be released without other conditions. It is absurd to assume that anyone who fits into these categories is automatically a flight risk, and then arbitrarily stating that $12,000 will eliminate the risk of flight.
The other reason why this statute is unconstitutional is that the legislature simply doesn’t have the authority to pass this type of law - our Constitution is one that is based upon the separation of powers. Bail is an area that is constitutionally delegated to the judicial branch; thus, regulation of bail can be done through the judicially-approved Rules of Criminal Procedure, but not through legislatively passed statutes. The Rules of Criminal Procedure make it clear that a judge should presume each defendant can be trusted to appear, and does not need bail assigned. The legislature simply does not have the power under our Constitution to pass a law that overrides that presumption and replaces it with the command that every defendant post bail.
Unless there is a strategic reason not to, we raise these arguments at every bail hearing. That bail hearing is often our first chance to “go to bat” for our clients, and is our only opportunity to convince the court not to punish our client with excessive and unnecessary bail while they are still presumed innocent.
Up next in our three part bail series: Why Minnesota’s DWI bail statute simply doesn’t apply in most cases - regardless of whether it is actually constitutional or not.
I’ve blogged about the unscientific nature of DWI urine testing for years and years. Being at the forefront of defense challenges to urine testing has brought numerous successes for our clients, but we’ve never had a Minnesota Appellate court rule with finality that urine tests are inadmissible. Change is in the air, however, and the ruling from the Minnesota Supreme Court yesterday will likely change our position for the better.
DWI Urine Testing: Rejected by Scientists
The primary issue with urine tests is that the scientific community simply does not accept urine testing in DWI cases as a valid means of determining alcohol concentration. Most states don’t use it at all. Fewer than a dozen periodically use the method, but don’t test the “first void.” It appears Minnesota stands alone as the only state to utilize solely “first void” testing.
A brief refresher for those new to our blog: Alcohol collects in the bladder and does not “burn off” like alcohol in the blood or breath. Instead, it remains in the bladder until voided. Without voiding the bladder and waiting 20-30 minutes before collecting a “second void,” there is no relationship between the amount of alcohol in the urine and the amount of alcohol in the blood. In fact, Minnesota BCA scientists concede that under “first void” testing, a person may have no alcohol in the blood, but be over the legal limit by urine.
Under Minnesota law, before a scientific method or test can be admitted as evidence, a judge must find it to be “generally accepted by the relevant scientific community.” The Minnesota Supreme Court held in 2002 (State v. Roman Nose) that trial courts must grant motions for a Frye hearing unless and until the Supreme Court upholds a lower court finding of general acceptance for the specific scientific testing or method (for those unfamiliar with the Frye-Mack standard, check out our previous post).
We continually present scholarly articles, learned treatises and expert opinion from forensic toxicologists proving that urine testing is not “generally accepted in the scientific community.” If the judge listens to the evidence, this can and will lead to suppression of the test result. However, because the State has no real evidence supporting the use of urine tests, they use a different argument altogether - they try to claim that the Frye-Mack “general acceptance” test doesn’t even apply to urine tests, so there is no need to even prove general acceptance. Since urine testing for alcohol concentration was implemented nearly a century ago, many courts have rejected our motion for a Frye hearing simply because they believed that urine testing is not a “novel” test, and doesn’t need to be scrutinized. That’s about to change . . .
Minnesota Supreme Court Clarifies When Courts are Required to hold Frye Hearings
The Minnesota Supreme Court issued an opinion yesterday that rejected the State’s “it’s not novel science if it’s old science” argument this week in State v. Hull.
In State v. Hull, the jury found Jeremy Hull guilty of murder. Before the trial, the defense challenged whether fingerprint evidence and handwriting analysis was admissible under the Frye “general acceptance” standard. The trial court refused to hold a Frye-Mack hearing on the scientific validity of the fingerprint evidence, concluding (without reviewing any evidence) that “fingerprints have been generally accepted as scientifically reliable for a long time.” Similarly, it denied the motion on the handwriting analysis by summarily finding, it too, is generally accepted, again without a hearing.
Analyzing whether the trial court correctly rejected a defense motion for a Frye hearing of fingerprint evidence, Justice Paul Anderson wrote,
“[L]engthy use of a method by law enforcement, and even lengthy unquestioning acceptance by courts, does not [by itself] exempt expert evidence from scrutiny under the first prong of Frye-Mack….”
Justice Anderson also cited with approval a report issued by the National Research Counsel of the National Academies (NRC), which stated, “In a number of forensic science disciplines, forensic science professionals have yet to establish either the validity of their approach or the accuracy of their conclusions, and the courts have been utterly ineffective in addressing this problem.”
Justice Meyer filed a concurring opinion, “because [precisely defining the Frye-Mack standard] has wide-ranging implications for future cases, we do a disservice to district courts and the administration of criminal justice in this state by declining to decide the issue on its merits” (she said this because the majority refused to actually state a rule, holding that the evidence against Hull was so overwhelming so as to make the issue irrelevant).
Justice Meyer went on to state, “The NRC Report states in no uncertain terms that the state and federal courts’ longstanding acceptance of traditional forensic science expert opinions is simply not supported by good science.”
She concluded by noting that, “in order to present expert conclusions based on these methods to a jury, the proponent of the evidence must first meet its burden under the first prong of Frye-Mack to show that its forensic evidence methods produce accurate and reliable results. The district court erred in this case when it relieved the State of that burden.” (Emphasis added).
“But We’ve Always Done It That Way” Falls Short
The Court’s message is crystal clear: The State can no longer rely on the “long-standing use” of a scientific method to prevent a Frye hearing. Longevity alone is insufficient; the State can’t be permitted to “grandfather” junk science past the rigorous safeguards of the Frye-Mack test. Instead, the Supreme Court has again made it clear that the government must prove in a Frye hearing that a test if generally accepted by the relevant scientific community.
So how does this affect urine testing? Many courts have succumbed to prosecutors’ argument, “But we’ve always done it that way” in denying motions for a Frye hearing. Thanks to the Hull case, I’m hoping this will also bring an end to another government adage, “Good enough for government work” which has allowed urine testing to be used against innocent citizens for years.
The Chief Justice for the Supreme Court penned an incredibly articulate and devastating attack against Minnesota’s test refusal law today. In the case of State v. Larson, the Court held that:
"Larson also argues that his due process right to a fair trial was violated because the State was allowed to introduce evidence that he had refused to submit to voluntary . . . testing, and that the State used his refusal as evidence of his guilt. It is uncontested that Larson refused to allow the police to take a . . . sample . . . until the police produced a warrant. At trial, the district court ruled, over Larson’s objection, that Larson’s refusal to submit voluntarily to . . . testing could come before the jury. The court acknowledged that, while Larson “had that right to refuse to cooperate,” he did not see that “any constitutional rights of [Larson’s] are violated by that fact being told to the jury.” This ruling was erroneous. See Jones, 753 N.W.2d at 687 (“It is a violation of the defendant’s right to due process for a prosecutor to comment on a defendant’s failure to consent to a warrantless search.”)." (Emphasis added)
There is one problem: the above quote doesn’t refer to blood, urine, or breath samples for alcohol concentration - it refers to blood samples for DNA testing. Thus, the legal conclusion that our current test refusal law is unconstitutional can be craftily avoided by simply invoking the DWI exception to the Constitution.
We’ll be bringing the Larson case to the attention of every judge that is presiding over a test refusal case, and it will be very, very interesting to see how they can “distinguish” (legalese for “ignore) this case from the line of cases mysteriously holding that charging someone for test refusal is constitutional.
One problem that most people arrested for DWI will quickly encounter is that Minnesota judges think that they are required to set bail in DWI cases. This means that before you are found guilty - sometimes before you even appear in court - the State will require to you pay them for the privilege of being allowed to go home, go back to work, see your family, etc. So much for “innocent until proven guilty!”
Bail in a DWI case can range up to $12,000 (and can reach $100,000 or more in felony DWI cases). This can be an incredible financial burden for the average citizen, which is why you have the option to pay a bail bondsman. A good bail bondsman will charge you about 10% of the bail amount (e.g. if your bail was set at $6,000, you would pay about $600), and allow you to be on your way - as long as you promise to make all future court appearances.
If you don’t think you can afford bail, there is a second option that is often made available that appears like a good idea, but is actually far inferior to posting bail. Many judges will set bail, and as an alternative order that you go on “pre-trial monitoring.” This typically means that you are locked into an ankle-bracelet to ensure that you don’t use alcohol for the duration of your criminal case. What isn’t made clear to you is that you have to pay for the “privilege” of having this ankle bracelet - typically $10 - $15 per day. Thus, after 60 days, you’ll have paid at least $600; if your case takes longer than four months (very typical) you will have already “paid” the maximum bail amount of $1,200 . . . and you’ll still be wearing that ankle bracelet. And be careful - if the ankle bracelet even thinks you’ve consumed alcohol, it’ll report you, and you’ll end up facing an arrest warrant in the near future.
Whenever it is financially possible, we advise all of our clients to post bail rather than shackle themselves to an ankle bracelet. Posting bail is almost always cheaper in the long run, and you don’t have to worry about false positive readings or other errors that can put you back in jail.
Of course, being a good attorney doesn’t just mean giving advice, it means knowing how to fight for our clients rights. It’s always better to convince a judge not to order any bail at all, rather than have to decide between the lesser of two evils. Our next post will discuss some of the arguments we’ve successfully used in court to make sure that our clients were not saddled with expensive pre-trial bail amounts - the fact that Minnesota’s bail statute is unconstitutional, and the added fact that judges incorrectly apply the statute in a vast majority of cases where it doesn’t even apply.
Among the many decisions recently issued by the Minnesota Court of Appeals was the troubling case of Van Note v. 2007 Pontiac, A09-2311. This case is a perfect example of why our vehicle forfeiture laws are so absurd, and why the first thing you need to do when charged with a DWI is find a knowledgeable attorney.
In the Van Note case, the driver was arrested for 2nd degree DWI while driving his girlfriend’s vehicle. The driver was not on the title . . . the vehicle was not registered in his name . . . and yet the State immediately seized the vehicle for forfeiture.
The State made a half-hearted effort to notify the actual owner (the driver’s girlfriend) that it had every intention of keeping her 2007 Pontiac G6 (with a bluebook value well over $10,000). Eventually, the innocent owner tried to convince the court to return her vehicle by filing a petition for review. However, because the girlfriend of the driver convicted of a DWI didn’t file the appropriate paperwork within the correct period of time, the Court of Appeals basically told her “tough luck.”
So, because this innocent vehicle owner did not understand the complex laws surrounding vehicle forfeiture, the State gets to sell her vehicle for profit, even though the law requires the State to return the vehicle to her!
This type of situation happens far too often. In the traumatic and often shame-filled period following a DWI arrest, many people do not take the immediate steps they need to in order to preserve their rights. Because we work every day hammering the State on all aspects of a DWI case, we would have immediately recognized that the innocent owner defense applied, and filed a prompt petition for review. In the end, our client should have gotten her vehicle back. Instead, she’s in the market for a new vehicle . . . and out a lot of money.
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.
A special thanks goes to Pennsylvania attorney, Justin McShane of the McShane Firm, LLC. Although Justin represents none of the Minnesota litigants, he generously donated a hefty sum in an effort to support the cause. Justin, recognized as one of the top criminal defense attorneys in the country, probably has more scientific knowledge in the criminal defense arena than any other lawyer.
Once others learn of Justin McShane's leadership here, other lawyers from around the country will soon follow his lead with their kind contributions.
Today, Judge Abrams issued an order extending the timeline for the consolidated Minnesota Intoxilyzer 5000 source code cases. In his order, the judge set the final hearing to start on December 18, 2010.
The source code coalition requested this extension about a month ago, due to delays caused by CMI, the manufacturer of the breath test machine. Most troubling was the fact that CMI recently notified the Source Code Coalition that it had provided us with the “wrong” source code. Instead of reviewing the actual source code used in Minnesota, coalition experts had been reviewing different code for nearly two months at CMI’s headquarters in Owensboro, Kentucky.
If this wasn’t absurd enough, our experts also discovered the state had improperly “burned” the source code onto the Intoxilyzers’ microprocessors. It appears that in its haste to convict Minnesota drivers, government scientists included unintended machine code on the chips which govern the machines’ testing of Minnesota drivers. Our experts now have the added task of determining if and how this unintended code affects the validity, reliability and accuracy of DWI breath tests – tests dating all the way back to 2004.
To date, nearly 3,000 DWI breath test cases have been consolidated by the Minnesota Supreme Court. Some expect that number to rise to more than 5,000 cases before the end of the year.
The latest numbers are in. As of August 4, 2010, nearly three thousand cases have been consolidated in Minnesota's consolidated source code challenge. A total of 3,830 are attempting to consolidate according to Christina LeClaire from the Minnesota Courts.
The number of cases will continue to climb as long as some police departments insist on using the beleaguered machine. I predict 5,000 cases will be at issue before the court makes its ruling. I estimate the court will be unable to make its ruling until 2011.
If the State replaces the Intoxilyzer 5000 with the Datamaster, doesn't this start everything all over again? Requesting the source code. Why doesn't the State just eliminate the breath test machines altogether and strickly go with blood tests?
Attorney Dan Koewler responds:
Scientifically, it would make perfect sense to discard breath testing altogether, and rely strictly on blood sample testing. Breath testing has numerous problems completely independent of possible software errors. That being said, there is no way that the State would discard such an “easy” test method just because of a few measly scientific concerns. Remember, the State measures its success rate by how many convictions it can rack up, and it wants those convictions as fast as possible.
Additionally, National Patent (the manufacturer of the Datamaster) is a drastically different creature than CMI (the manufacturer of the Intoxilyzer). Datamaster has a track record of actually working with defense attorneys, rather than stonewalling them. In fact, we already know that their source code is available – for about $250, they’ll put the code on a disk and send it directly to us. Compare that attitude with CMI, where it took four years of litigation and hundreds of thousands of dollars just to get a chance for our experts review some of the source code, in a remote location, under some pretty ridiculous terms.
Given National Patent’s history of being rather transparent, there likely won’t be much to gain by a protracted source code challenge. The real challenges will remain with how the State chooses to implement the Datamaster; our State has spent years pretending that its breath test machines were flawless, with the full support of CMI. With National Patent, I expect the State will have to find better explanations for its failure to have a regular maintenance schedule for its machines, among numerous other scientific safeguards that have been ignored with the use of the Intoxilyzer.
We’re defense attorneys – its we do, and what we love. I know that there will be numerous challenges to the Datamaster’s integrity, but at this point, I’m just not sure that source code challenges will be one of them.
Yesterday, the Minnesota Court of Appeals issued an incredibly troubling decision in the case of State v. McIlraith. In that case, the defendant was arrested for boating while intoxicated. He took an Intoxilyzer test that reported an alcohol concentration over a .08. He immediately attempted to exercise his right to have an independent test (we’ve won numerous cases after having our clients obtain an independent test). Six hours after being arrested, the defendant was finally allowed to submit a urine sample for independent analysis.
The defendant’s attorney successfully suppressed the Intoxilyzer test result, which usually results in a victory. However, the State made a motion to use the Defendant’s own independent test against him! The judge agreed that this was legal, and the Defendant suddenly found himself being prosecuted by evidence that he himself had obtained.
There is a lot about this case that is troubling. I won’t even get into the absurdity of convicting someone of boating above a .08 alcohol concentration based on a urine test taken six hours after driving. What I do want to point out is that the Court, in upholding the admission of a defendant’s independent test against the defendant, has turned independent testing into a double-edged sword.
We routinely tell all our clients to get an independent test - sometimes, it’s the only way to challenge the validity and reliability of the “State’s test.” However, with this new ruling, the Court has made it acceptable for the State to use our own investigative work against our own clients. Now, if we try to use an independent test result to question the validity of the State’s test, the State gets a second bite at the apple. This seems to directly violate all sorts of bedrock Due Process principles: the right to present a complete defense, attorney-client privilege, the statutory right to obtain an independent test, and half a dozen others. Again, a very disturbing decision.
I have it on good authority that the attorney involved has every intention of appealing this decision, and I sincerely hope that the Supreme Court corrects this manifest error. In the meantime, the status of independent tests is very much up in the air.
The State has requested discovery of all independent alcohol tests taken in conjunction with Intoxilyer tests at issue in the consolidated source code matter.
While the coalition opposes this request, we will need them in the event Judge Abrams orders the coalition to turn them over to the state as part of either the consolidated civil implied consent cases or the consolidated criminal cases.
Please send any independent test results taken in your cases and the corresponding Intoxilyzer test result to Liason Counsel Lee Orwig, by email, fax or mail:
Many people believe that it is impossible to beat a drunk driving criminal charge or the DWI driver’s license case. The public believes this for a number of reasons.
First, ill informed police and prosecutors believe DWI science is beyond reproach.
Second, attorneys who are ill prepared to handle complex DWI cases will often merely exacerbate the problem. In most cases they take their client’s money, then hold their hand as they plead them guilty.
Finally, the personal guilt that many people feel when charged with DUI crimes can be overwhelming, even if they thought that they were okay to get behind the wheel. They either hire a “dump truck lawyer” or plead guilty.
We’ve busted these DWI myths time after time. It takes hard work, dedication, and a heartfelt desire to vigorously defend our clients, but in the end, the effort pays off. Here’s a sampling of some of our more recent successes, accumulated over the last few weeks. These victories demonstrate our commitment to our clients and our never-ending crusade to debunk the myth that DWI’s are “unbeatable.”
“B Card Violation” – Judge Order Driver’s License Reinstated
The Department of Public Safety cancelled my client’s license to drive. They claimed that he was driving in violation of his restricted driver’s license (which prohibited him from consuming ANY alcohol while behind the wheel).
Our client was involved in an accident in Hennepin County. After reporting to the scene, the police officer claimed to smell an order of alcohol, said our client failed the Horizontal Gaze Nystagmus test, and reported my client’s alcohol concentration was .06 on the preliminary breath test.
Many attorneys believe such “B card” cases are impossible to win – after all, the government just has to prove that our client had a drink (not that he was impaired). Despite the common misconception that this type of case is unwinnable, we won! We challenged the DPS’ evidence in court and convinced the judge to overturn the license cancellation and reinstate my client’s driver’s license.
DWI – Police Officer Coerced Driver’s “Consent” to take DWI alcohol test
In another case we challenged how the police officer obtained our client’s “consent” to a urine test. As we’ve blogged about before, we believe Minnesota’s implied consent law is unconstitutional as it unlawfully coerces all drivers to submit to DWI alcohol testing.
The judge disagreed with our argument, and we lost at the district court level. That didn’t slow us down – we simply took the fight to the next level, and we appealed to the Minnesota Court of Appeals. After we submitted our appellate memorandum, we received a stunning letter from the government – they would agree to give our client his license back (a victory) if we withdrew the appeal. Thus, solely on the strength of our written memorandum (before we even had to argue the case in front of the appellate court) we won the case!
Prostitution Sting: Soliciting Prostitution – Case Dismissed
Our firm practices only criminal defense and related civil cases, e.g., automobile forfeitures. Although the majority of our case load is Minnesota DWI cases, we regularly represent people charged in other types of cases as well.
In Ramsey County, our client was arrested as a result of a St. Paul Police prostitution sting. He was charged with Loitering with Intent to Solicit Prostitution. After we obtained the police reports, video & audio recordings, and other documents, we started pushing the government hard – and were able to obtain a complete dismissal of the charges.
Fifth Degree Criminal Sexual Conduct – Case Dismissed
In another criminal case in Ramsey County, the government charged our client with Fifth Degree Criminal Sexual Conduct. We challenged the criminal charges and showed the prosecutor the weaknesses in its case. Again, they dismissed all of the criminal charges.
DWI – Bad Seizure– Judge Orders License Reinstated after Urine Test
In a Scott County case, our client was charged with a DWI after he was arrested and given a urine test. The results were .11, well over the legal limit.
Through experience and a desire to fully defend our client, we were able to get the state to dismiss the DWI charges against our client. Shortly thereafter, we convinced the judge in the implied consent case to rule in our favor as well, and restore our client’s driver’s license.
The end result of this “unbeatable” DWI charge? All criminal charges were dismissed, and our client’s driving record doesn’t even reflect being pulled over for a DWI offense.
DWI – Judge Grants Motion for Post-Conviction Hearing
A judge granted our motion for a post-conviction hearing in our efforts to get a new trial in a highly publicized case that we took to trial more than four years ago. In that case, our client was charged with “test refusal” on the Intoxilyzer 5000 because she was unable to provide an “adequate sample.” She begged for the chance to take another test, but wasn’t allowed to. Because we had not yet uncovered the critical flaw in the Intoxilyzer that causes such errors, the jury found our client guilty of test refusal.
Since that trial, our client’s conviction was overturned by the Minnesota Court of Appeals, and then reversed again by the Minnesota Supreme Court.
Now, four years later, the trial court judge is granting us a new hearing based on the evidence we discovered concerning the faulty source code that runs Minnesota’s breath test machine, the Intoxilyzer 5000. The case is scheduled to be heard next month.
DWI – Judge Grants Motion for Unprecedented Access to the Source Code
In a civil license revocation case involving the same driver as above, a judge granted our motion for the source code to the Intoxilyzer 5000. However, this case is a good example of what can happen if you reach for the stars; we not only asked for the source code, but also demanded key pieces of source code information well beyond that which was provided in the federal court settlement last year. After listening to our arguments, the court granted our motion, further opening the door to prevent our client from being wrongfully charged as a “test refusal.”
DWI – .19 Blood Test Dismissed
DWI – .19 Breath Test Dismissed (Source Code)
DWI – .10 Breath Test Dismissed (Source Code)
“Can’t Win ‘em All . . . But Can’t Win Any If You Don’t Try”
A prosecutor in Ramsey County did manage to hand us our first DWI trial loss in years, in a case where the judge admitted into evidence a .14 urine test result. After careful consultation, our client decided that he wanted his case tried to a jury, despite the prejudicial test result. That jury ultimately found our client guilty.
Fortunately, the judge gave our client the exact same sentence he would have handed down had our client pled guilty without going to trial. As long as there is no disincentive to go to trial, we’ll do just that!
DWI –Just Reinstates License to Drive – Right to Counsel – .14 Breath Test
In a huge win in a difficult case, a Hennepin County judge ruled in our favor and reinstated our client’s driver’s license after an implied consent hearing (we had already beat the DWI charge on the criminal case). This was a difficult situation where our client was deaf, and had repeatedly begged the arresting officer for either an interpreter or the advice of a lawyer. Although the officer did make some attempts to communicate with our client, he did not know American Sign Language, and the court agreed that her right to counsel was not vindicated.
This is a huge win not only because our client got her driver’s license back, but because this case also resulted in the police department installing a TTY communication device, for hearing-impaired persons.
Finally, Chuck was named, “Geek of the week” by nationally renowned attorney, Justin McShane of Pennsylvania. The “Truth About Forensic Science”, McShane’s forensic blog, named Ramsay winner of his weekly forensic science quiz, aptly entitled, “Geek of the Week.”
Okay, so it is not a Nobel, but it's a good distraction for Chuck.
If you follow our blog, you noticed that we recently exposed the fact that the State was charging drivers with DWIs based upon incorrect urine test results. It now appears that this error was due to a systematic failure to implement proper procedures. Simply put, the lab wasn’t performing a routine calculation on its urine samples to ensure that the results were being properly reported.
Bureau of Criminal Apprehension
1430 Maryland Avenue E., St. Paul, Minnesota 55106
Phone: 651/793-7000 FAX: 651/793-7001 TTY: 651/282-6555
July 1, 2010
Sgt. Steven Johnson
Anoka County Sheriff’s Office
Tri County Regional Forensic Laboratory
325 East Main Street
Anoka, MN 55303-2489
Re: Summary of an onsite visit to Tri County Regional Forensic Laboratory
Anoka – Sherburne – Wright Counties
BCA Forensic Scientists Dr. Edward Stern and Brent Nelson visited the Tri County Regional Forensic Laboratory located at 13301 Hanson Blvd NW in Andover, MN. The laboratory requested an outside assessment of their alcohol-testing program after a client raised a concern about urine alcohol results. Mr. Nelson and Dr. Stern met with Lieutenant Steve Johnson, Crime Laboratory Director, in the presence of Sergeant Andy Knotz, Quality Assurance Manager, Lead Forensic Scientist Steve Banning, and Forensic Scientist Miranda Thurmer.
Lt. Johnson advised that there was a concern by one of their clients regarding the reported alcohol result and the alcohol results obtained via preliminary breath test results (PBT). While there are explainable situations that would lead to discrepancies with a PBT result conducted roadside versus the evidential test performed such as mouth alcohol effects, possible slight matrix differences, calibration of the PBTs, as well as the time the tests were conducted, the concern raised by the client was taken very seriously. Testing and reporting of the alcohol results was suspended while the root cause of the discrepancies was investigated. This investigation in part consisted of an inquiry to the Bureau of Criminal Apprehension in regards to reporting parameters for alcohol results. It was initially thought the discrepancy involved the application of a conversion factor to convert the results that were obtained in a concentration of grams per 100 milliliters (g/100mls) to the Minnesota statutory value for urines of grams per 67 milliliters (g/67mls).
Review of the of the Quality Control results obtained from the analytical runs from 10/8/09 to 6/23/10 demonstrated acceptable performance across the various analytical levels of 0.05 g/100ml to 0.20 g/100mls. The R- Squared values obtained for all the calibration curves during this time period also demonstrated acceptable values. Also reviewed was the external proficiency performance from the samples provided from the College of American Pathologists (CAP) as well as the CTS proficiency exams. These results all demonstrated this laboratory’s ability to quantify alcohol within the acceptable parameters in accordance with these proficiency tests.
Evidence of quality assurance was also demonstrated by the documentation and maintenance of instrument performance checks, instrument and temperature maintenance logs, as well as the certificates of analysis of the reference standards used demonstrating traceability.
Their Quality Manual was also reviewed in part and states in Section 188.8.131.52 (pertaining to control of data, calculations and data checking) “Each laboratory section is responsible of developing and documenting procedures to ensure that the data is free from calculation errors and quality control measures are reviewed and evaluated before that data is reported.” A review was conducted on their current procedure entitled “Alcohols by Headspace Gas Chromatography” Version 1, November 2009. A draft revision, version 2, also reviewed, contains a new section entitled “Calculations” which defines the application of the conversion factor to convert the urine alcohol results obtained in the concentration units of grams per 100 mls to grams per 67 mls. This proposed change to the procedure should help ensure that the urine alcohol result is converted properly to the units of concentration in accordance with the current statute requirements. It should be noted that even though this laboratory is not currently accredited under ISO 17025 standards, it contains the components of the key elements regarding customer service and quality of results.
The procedure “Preparation of Whole Blood and Urine Controls- version 1, Jan. 2010.” was reviewed. This procedure defines the preparation of in house blood and urine controls. The procedure was found to be correct to produce the desired concentrations, however the urine control proportion resulted in a concentration expressed as grams per 100 mls not grams per 67 mls. It was recommended to either covert the expected value to grams per 67 mls or more appropriately change the procedure to target a urine alcohol of 0.08 grams per 67 mls.
The laboratory was challenged with three spiked urine alcohol specimens previously prepared and examined at the BCA Laboratory. These specimens were analyzed during the site visit and all produced acceptable results when the applicable conversion factor of 0.67 was applied.
The issue was that the urine alcohol results obtained in grams per 100 milliliters were not converted to grams per 67 milliliters in accordance with the statute. The documentation presented demonstrated this laboratory’s ability to quantify alcohol. It is recommended that amended reports be issued for the urine alcohol results conducted during this time period. The amended urine alcohol results that were obtained in grams per 100 milliliters must have the applicable conversion factor of 0.67 applied to the value obtained.
Staci A. Bennett
Toxicology Section Supervisor – BCA Laboratory
CC: Debra Springer – Assistant Laboratory Director
This is part two of our two-part discussion of Minnesota’s strange forfeiture scheme. At this point, you’ve been arrested for DWI. You haven’t been found guilty (you haven’t even been to court yet) but the State has already told you that it’s taking your car. Forever. What can you do to stop this vehicle forfeiture?
Most people assume that they’ll be able to take this case to court, where they are presumed innocent until proven guilty. That seems fair, right? Too bad that’s now how forfeitures work.
You see, you’re already presumed guilty when the State seizes your vehicle. Without any court hearing, merely on the say-so of the arresting officer, the State has seized your vehicle, and is likely planning on selling it off for profit.
Do you think this is unfair? Well, you have exactly thirty days to file a petition in court to contest this forfeiture - and you’d better be quick, because 31 days later you lose ALL RIGHTS TO YOUR VEHICLE. The criminal charges against you could be dismissed on the 31st day after your arrest, and the State would STILL keep your vehicle!
We hear this type of horror story far too often. A country that once fought a war to prevent government seizure of personal property no longer seems to care that the government routinely grabs the property of citizens for its own profit.
Ironically, even though you have less than a month to file a petition to get your car back, you won’t even see a judge until after your criminal case is resolved - and unless you plead guilty, that could take a year or more (especially if you took a test on the awful Intoxilyzer 5000).
If this sounds like an unconstitutional get-rich-quick scheme, you’re right. We’re working hard to convince judges statewide that this scheme is blatantly illegal. Unfortunately, in order to even use this argument, we need to file a petition within 30 days.
Even if the arresting officer tells you that you don’t have to show up for court for two months, don’t wait. Failure to act promptly can result in the permanent loss of your vehicle (and your driver’s license) - EVEN IF THE STATE DISMISSES THE CRIMINAL CHARGES AGAINST YOU.
Please read about part one of this blog post here.
Today CMI, the Intoxilyzer manufacturer, faxed a letter to Federal District Court Judge Frank, Magistrate Boylan and Judge Abrams disclosing "that the software that is presently installed in the ... Intoxilyzer 5000EN instruments in service in Minnesota does not ... match the 75_0240 software that was preserved at CMI at the time it was created for use in Minnesota."
CMI admits in the letter that neither CMI nor the State knows the reason for the difference.
The Honorable Donovan W. Frank
United States District Court
District of Minnesota
316 North Robert Street
St. Paul, Minnesota 55101
The Honorable Jerome B. Abrams
Scott County Courthouse
200 Fourth Avenue W.
Shakopee, Minnesota 55379
The Honorable Arthur J. Boylan
United States Magistrate Judge
334 Federal Building
316 N. Robert Street
St. Paul, MN 55101
RE: State of Minnesota v. CMlof Kentucky, Inc.
Court File No. 08-CV-603 (DWFIAJB)
In re: Source Code Evidentiary Hearings in Implied Consent Matters
Consolidated File No. 70-CV-09-19459
In re: Source Code Evidentiary Hearings in Criminal Matters
Consolidated File No. 70-CR-09-19749
Dear Judges Frank, Boylan and Abrams:
As the Courts may recall, the Intoxilyzer 5000EN breath-alcohol test instrument contains two
memory chips (EPROMs), which contain software that performs distinct functions within the
instrument. One EPROM, often referred to as the "master," contains software identified as
"1408.62." The other EPROM, sometimes called the "slave" or "side processor," is loaded with
different software, identified as "7502.40" or "75_0240."
In accordance with the July 16, 2009 Consent Judgment and Permanent Injunction, CMI has
been providing Authorized Minnesota litigants access to all Source Code files for the current
version of Intoxilyzer 5000EN software (1408.62 and 75_0240) in both native electronic and
printed, hardbound (redacted) book format.
However, it has recently come to CMI's attention that the software that is presently installed in
the side-processor EPROMs in the Intoxilyzer 5000EN instruments in service in Minnesota does
not identically match the 75 0240 software that was preserved at CMI at the time it was created
for use in Minnesota.
At present, neither CMI nor the State is certain of the cause of this difference, or of its impact, if
any, on the Source Code review currently underway. I assure the Courts that CMI and the State
are working cooperatively and diligently to resolve this issue as quickly as possible.
Very truly yours,
WINTHROP & WEINSTINE, P.A.
William A. McNab
cc: Counsel of RecordiLiaison Counsel (via e-mail)
Tomorrow Justice David Stras begins his new job as Minnesota Supreme Court Justice. I thought it appropriate to present my view of the makeup of the court and how the change may affect the court’s direction.
The defense bar (and those for whom we fight) has endured for the last four years the “Pawlenty Four” (“P4”) – a bloc of conservative justices carrying the majority and appointed by the lame-duck governor. Until recently, the P4 took the majority in several close cases. In a number of cases, including State v. Netland (2009), Laase v. 2007 Chevrolet Tahoe, and State v. Peck (2009), the minority wrote particularly scathing dissents.
Last month the Minnesota Supreme Court voted 4-3 in Governor Pawlenty’s unallotment case. The governor lost when retiring Chief Justice Magnuson seemingly switched sides and went against the governor. This could have indicated a “shift” in the Chief Justice’s stance, and provided some hope that the Court would perhaps return to a less activist role in Minnesota. Unfortunately, Chief Justice Magnuson had announced he was retiring earlier this year.
After the unallotment case, the governor named Justice Magnuson’s replacement. He elevated Justice Gildea – who wrote the unallotment dissent – to Chief Justice, and appointed David Stras to fill the new vacancy. Professor Stras, a young law school professor, had written an Amicus Curiae (“Friend of the court”) supporting Pawlenty in the unallotment case.
Professor Stras served as law clerk to conservative U.S. Supreme Court Justice Clarence Thomas and serves on the executive committee of the conservative Federalist Society.
Stras said he believes “the role of judges is a limited one, safeguarding liberty and protecting the rights of all citizens.” Reporters asked whether he shares Thomas’s philosophy of the law. Stras called Thomas ‘my mentor. ... But we have differences in our approach.’”
Reporters and court observers questioned how to interpret Stras’ comment. Stras suggested that review of his “scholarly papers” may provide some insight.
In Pierce Butler: A Supreme Technician, Vanderbilt Law Review, vol 62 (2009), Stras characterizes Butler as having “surprisingly pro-defendant criminal rights positions.” P. 697. In attempting to debunk Butler’s reputation as conservative, he portrays Butler’s views as “liberal” in criminal cases but conservative on economic issues. See FN183. He thoughtfully explains that Butler broadly construed the Fourth Amendment, in defense of individual liberties. P. 722, and applies this same ideology to defendant’s Sixth Amendment rights. P. 723.
Stras noted that “Justice Butler was a ‘stickler for the rights of criminals,’” citing Chief Justice Hughes. P. 723. After analyzing this article, Stras’ thesis is clear: He makes a scholarly case that carefully debunks Justice Butler’s reputation as conservative when it comes to criminal law issues.
One quote is particularly telling:
As a Supreme Court Justice, Butler’s jurisprudence was deceptively nuanced. Those who categorize him merely as one of the so-called “Four Horsemen of the Apocalypse” fail to give him credit for the intricacy and sophistication with which he approached constitutional questions. To be sure, Butler often took positions that were “favorable toward constitutional protection of economic liberties through judicial restriction of government action.” But it is far too simplistic to assert, as some commentators have, that Butler was the “epitome of ultra-conservativism” or that he was “insensitive to matters of civil liberties.” To the extent that labels are helpful in describing Butler, previous commentators have largely mischaracterized his jurisprudence by widely labeling him as a “conservative.” For example, Butler took stereotypically libertarian (or even liberal) positions in cases involving the Fourth Amendment and the rights of criminal defendants.
P. 717-18 (footnotes omitted).
Does this mean that Stras, despite being appointed to act as a “conservative” justice on a “conservative” court, may actually be a wild card? Is it possible that the P4 could suddenly become the “P3" and end up dissenting in upcoming cases penned by Stras himself? It’s too soon to tell, but based on my research, I don’t see Stras as the type of justice who would indubitably fall in line with the other Pawlenty appointees.
Anyone will be upset after being arrested for DWI. They are usually put in handcuffs, transported in the back of a squad car to a nearby (or not-so nearby) police station, and then told to submit a sample of blood (ouch) urine (embarrassing) or breath (inaccurate). After that, many are thrown in jail; others post as much as $12,000 in bail, while others need to find a ride home and a way to get their car out of an impound lot.
After this incident has robbed them of their dignity, many are then even more shocked to discover that they are being charged with not one crime, but two, based off of this arrest. While this seems illegal, it’s actually common, and a good defense attorney can work this to your advantage.
There are two types of DWI Crimes in Minnesota: 1) “driving while impaired” and 2) “per se intoxication.” There is only one real difference between these two crimes, and that is what type of evidence the State can use to prove guilt.
Driving while impaired means just that: the State must prove beyond a reasonable doubt that you were impaired by alcohol or drugs while you were driving. The type of evidence in this type of case ranges from performance on field sobriety tests to the arresting officer’s “opinion” of your level of impairment to the reason the police office stopped your vehicle. Note that for this type of offense, it’s not necessary to prove an alcohol concentration above a .08 - sometimes a driver’s alcohol test result isn’t even relevant.
Per se intoxication, on the other hand, doesn’t mean that a driver was a danger to anyone on the road. In fact, someone who is per se intoxicated might not even feel the effects of what they drank. Instead, per se intoxication just means that someone’s alcohol concentration was at or above .08, as measured anytime within two hours of driving. You can perform perfectly on a field sobriety test and enunciate every word flawlessly, and still be guilty of per se intoxication - if the State has a test result that “proves” you were above a .08.
Back in the day, the only offense drivers could be charged with was “driving while impaired.” These are the types of drivers that can be the most dangerous. However, in close cases, they are also the types of drivers that are hardest for a prosecutor to convict.
Because it can be hard to convict an otherwise safe driver of driving while impaired, the legislature chose to pass a per se law and create a level of alcohol concentration that automatically renders someone “drunk.” This use of “science” makes it far easier for prosecutors to get convictions. Obviously, any prosecutor would rather just flash a test result in front of a jury, say “this number is higher than .08," and get a conviction, than actually prove that someone was impaired!
Of course, these per se laws were both a blessing and a curse for prosecutors. A blessing, because now it’s so much easier to convict people who otherwise do not appear impaired - just look at the test result! However, it’s also a curse, because if they don’t have a test result to rely on, most prosecutors won’t even bother to litigate a driving while impaired case.
That’s where we come in: we often gear our defensive strategy towards getting that test result suppressed, which forces the prosecutor to try their case the “old fashioned” way. Whether that test result is an example of junk science, flawed logic, or the secretive workings of the incomprehensible Intoxilyzer 5000 breath test machine, if there is a way for us to get it suppressed, we will get it suppressed. And without a test result, the vast majority of prosecutors will lose interest in gaining a conviction, and seriously consider settlement or dismissal.
You can feel stone sober and still commit the crime of driving while per se intoxicated. Winning your case means hiring an attorney who knows every possible way to attack the State’s best evidence - a test result - and get it suppressed. If you’ve been charged with driving while impaired, driving while over a .08, or both, contact Ramsay Law Office as soon as possible. We’ll carefully explain the legal process to you and answer your questions.
Earlier this year Judge Abrams issued his case management order for the review of the Minnesota Intoxilyzer 5000. Among other deadlines, he set July 1 as the due date to provide the government with our experts’ report of our source code review.
Last week the source code coalition brought a motion to extend the timelines set by the court. We asked for a three month extension given the circumstances. The Court responded by extending these timelines by a little more than one month. I can’t help but compare this deadline with the current fiasco in the Gulf of Mexico.
While I’m not our president’s number one fan, I empathize with his position. He did not cause the BP oil spill in the Gulf of Mexico, but many look to him to stop the oil and limit the scope of this disaster. Given a choice, I’m sure that everyone would prefer that this oil leak was just offshore, instead of under 5,000 feet of water, and that those responsible for causing the problem would solve it themselves before anyone innocent is harmed.
Likewise, it was the state and CMI who have repeatedly dragged their feet and interfered with our software review. It was the state and CMI that mandated that we travel to Kentucky to review the software, instead of reviewing it from established computer forensics laboratories. Yet, Judge Abrams is expected to speed this whole review process along, meaning that we are expected to inspect, analyze and present a full report in less than two months! I feel like we are trying to plug a leaking oil well miles below the surface of the gulf - and what’s worse, it’s a leak that wewarned everyone about years ago!
“Need for Speed?”
This six week extension of the deadline for our experts to finish their report is already causing serious problems, and simply isn’t enough time to properly analyze a complex piece of ancient software. What makes this “need for speed” especially odd is the fact that the State has been dragging its feet for years on any issues regarding the source code!
I “led the charge” against the Intoxilyzer, and was one of the first attorneys in Minnesota to ask the state to produce the source code. This was back in 2006 - over four years ago - and sadly, I have a number of cases that have been consolidated dating all the way back to then.
The Minnesota Supreme Court issued Underdahl I in 2007, holding that Minnesota owned the source code and the state is required to provide it. As early as then, the state acknowledged it could sue CMI for access to the source code, but it did nothing until March, 2008. It was then, over two years after I made my first request, that the state filed a law suit against CMI. And even then, while the state outwardly claimed that it was suing to obtain the software, it was obvious the suit was primarily designed to keep it from us.
With barely a shot fired in the litigation, the state secretly (and hastily!) settled a second time with CMI in June, 2009. We objected to this settlement - we claimed that it rendered source code review too costly, too time consuming, and too inefficient. Nevertheless, Federal Judge Frank approved the settlement over our objection on July 16, 2009. Thus, over three years from the first request for the source code, the state finally crafted a half-cocked method of analyzing this problematic software.
Unfortunately (but not unexpectedly) this interesting settlement was simply the starting point for more and more delay . . .
Relying upon the terms of the settlement reached between the State and CMI, the breath test machine’s manufacturer delayed analysis of the software for months. It boasted about how it would provide a “hard copy” of the source code . . . and then it blacked out large portions of the material throughout the book.
Our experts had to cancel flights to Owensboro, Kentucky on several occasions. We were forced to bring motions in federal court to get greater access to the code, made agreements which CMI breached, and had to bring even more motions. All of this occurred months and months after the State had reached its secretive settlement with CMI, and years after the State was first asked to disclose the source code.
10,000 Leagues Under the Sea
Our experts finally - finally! - got access for the first time on May 11, 2010. Since then, they have worked diligently to get the job done, despite onerous conditions. They must perform review at CMI’s headquarters in Kentucky, under the constant supervision of CMI security. Hours are limited to Monday to Friday, 8:30-4:30. Each day, ½ hour is wasted for “check-in.” Additional time is wasted setting up and tearing down their equipment. Although it sounds like an exaggeration, our experts (who otherwise spend their time reviewing software on behalf of such clients as the U.S. Navy) assure us that these work conditions make no sense, and that their job has gone from a simple analysis to one that is more like capping an oil leak at the bottom of the ocean - a new, strange, and incredibly difficult experience.
This is the history behind our request for an additional three months to analyze the source code and issue a report. It is a history full of delay tactics, hidden agendas and double-speak. Yet here, now that we’ve finally pushed the State long enough and hard enough to actually provide us with some access to the source code, they are objecting to our request for more time, saying we’ve had plenty!
We are at a critical stage. After almost half a decade of motions, arguments and appeals, we are finally on the threshold of proving what we’ve always known to be the case: there are serious problems with the Intoxilyzer 5000 that is used in Minnesota. Drivers and their families have the right to ensure the black box accuser works as designed. Otherwise, we will blindly trust this Intoxilyzer and risk more erroneous convictions.
The State did everything it could to prevent us from reviewing this software. Then it was CMI’s turn to prevent analysis of the source code. Now, due to overly-restrictive scheduling orders (prompted by the State) our careful analysis is being rushed to a sudden conclusion. It almost seems like the State is being rewarded for dragging its feet for so long.
Many people believe our government should have secrets, at least when it comes to our national security. But scientists agree that forensic testing should be open. Their formulas, procedures and test results must be reproducible in order to be good science. But government scientists and the companies that supply them disagree.
CMI is notorious for its secretiveness. It has shunned its customers – numerous states including Arizona, Florida, Georgia, Michigan and Minnesota – by refusing to provide access to the software that runs its breath test machines. Only after we obtained a federal court order, was CMI forced to permit us access to its source code. (Our experts are currently in Kentucky at CMI’s headquarters examining the Intoxilyzer 5000 software).
Intoximeters, another breath testing company which produces the EC/IR II and the alco-sensor, also conceals the science behind its breath test machine. It is holding its 2010 Users Group Meeting in its home town September 12-15, 2010. Intoximeters program will include the “’Thomas Workman’ Update” and “Source Code Challenges”. Apparently it felt it was being to open, however, as it recently revised its program omitting the above and instead chose the more generic “Legal Challenges.”
It, too, however, will not permit me or defense experts to attend.
Under our government’s leadership, it’s not surprising breath test manufacturers are so secretive about their breath test machines, the science they use and the software that runs their machines. The Minnesota County Attorneys Association (MCAA) is one of those organizations that perpetuates the covert treatment of DWI law enforcement.
The MCAA describes itself on its internet page:
The Minnesota County Attorneys Association is an independent, voluntary organization of County Attorneys dedicated to improving the quality of justice in the State of Minnesota. The Association is a not-for-profit corporation governed by a Board of Directors elected annually by the membership.
The members of the Association are dedicated to the accomplishment of this Mission by developing consensus on legal and public policy issues of statewide significance to County Attorneys. The Mission will be implemented competently and professionally while adhering to the highest ethical standards of the legal profession.
The MCAA closely follows my work. On its home page, it tracks my issues including the consolidated source code case, urine testing cases (see “Matthys Order”), and obtains transcripts (see “Implied Consent Transcript Bank”) of my expert witnesses and case issues. It will not give me access to its indexed transcript data base.
MCAA’s clandestine treatment of DWIs is particularly troubling. Its annual DWI Program includes:
Initial contact, probable cause and preconditions to a test request
Testing and refusal issues
Right to counsel and additional testing issues
Tips from judges and prosecutors on how to proceed with your case
The impact of administrative rules
The program, entitled “Impaired Driving: New Laws, New Issues, New Decisions” will be held June 25, 2010 at the Minnesota Bureau of Criminal Apprehension in St. Paul.
To help satiate my thirst for knowledge, I thought it would be beneficial to attend. I registered and paid my fee. However, the MCAA told me that defense lawyers are not welcome at the continuing education seminar.
I was surprised given the fact that it advertised one of courses would include “Tips from judges … on how to proceed with your case.” I wonder which judges will present the (secret) tips and if they know the MCAA is precluding defense lawyers from hearing the inside information?
Should your government keep secrets? Maybe when it comes to matters of national security. But not when it comes to “science” that puts innocent people behind bars.
Almost every client that calls us for legal advice and representation will ask it at some point. Most clients who retain us will hear the question from their friends and family. The government and the media have done a great job of making the “science” of DWI prosecutions seem unbeatable.
Which always begs the question: is it even possible to beat a DWI charge?
The answer, our answer, and the correct answer, is always “YES!”
A good criminal defense attorney will help guide anyone through the hoops, traps and pitfalls that make up our complex DWI laws. A great defense attorney will have a proven track record to demonstrate their ability and desire to make sure that you get the best effort and the best outcome possible. But the truly top-notch defense attorneys are the ones who understand that the “science” surrounding DWI prosecutions is little more than smoke and mirrors - and like any illusion, once you see the “science” for what it really is, your attorney is in the best position to reveal how shaky the State’s case really is.
A recent situation that arose in Colorado highlights the fact that any test - blood, breath, or urine - can successfully be challenged in court by top-notch attorney. In Colorado, over 200 blood tests were found to have been horribly botched - some tests reported a blood alcohol concentration 40% higher than the actual concentration should have been! Everyone here at Ramsay Law Office shuddered a little bit at that statistic, but what really gets to us is that the crime lab still can’t explain how so many tests came back with such inaccurate results.
Many people convince themselves that, “if the State’s test says I was over the legal limit, I must have been over the legal limit.” I’m sure that the vast majority of all of the improperly analyzed samples in Colorado went unchallenged in court. And that is the only real way to lose a DWI case - to not examine the evidence, to take the State’s word at face value.
At Ramsay Law Office, we’ve won many “unbeatable” cases, and we’ve done it by staying current with the scientific literature and never taking the State’s evidence at face value. If you’ve been charged with a DWI, and the State has a blood, breath, or urine test up their sleeve, don’t buy into the hype. Contact Ramsay Law Office - we don’t buy into the hype either. We get results.
Last week we published our blog series demonstrating how independent testing and independent analysis of the state’s blood and urine samples may help drivers beat DWI urine or DUI blood tests. After we concluded the series, we ran into an interesting wrinkle when we sought to have two urine samples independently analyzed.
The prosecutor informed us the government had destroyed the urine samples!
I believe the state has a duty to retain such critical evidence until the case has concluded. It should not destroy any blood or urine test samples unless and until the driver has actual knowledge the state intends to destroy the sample and waives the right to examination.
In response, we amended our motions to suppress admission of the test results and to dismiss the DWI charges. We filed the following motions:
1) Dismissing the Complaint based on the State’s destruction of the evidence. Specifically, admission of the urine test report violates Defendant’s constitutional rights to Confrontation, pursuant to Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), because the state intentionally destroyed the evidence, thereby denying Defendant the opportunity to independently inspect, evaluate and test his alleged urine sample;
2) Dismissing the Complaint based on the State’s destruction of the evidence. Specifically, admission of the urine test report violates Defendant’s constitutional rights to Due Process, pursuant to California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528 (1984), because the state intentionally destroyed the evidence, thereby denying Defendant the opportunity to independently inspect, evaluate and test his alleged blood sample;
3) The State has violated the Minnesota Rules of Criminal Procedure and Defendant’s Due Process rights by failing to provide Defendant with his blood sample as part of his requested discovery;
4) The law of spoilation of evidence is inconsistent with the Minnesota Rules of Criminal Procedure and cannot be applied in light of the rights of Defendant to Due Process and Confrontation; and
5) Dismissing the charges against Defendant as the State’s destruction of Defendant’s urine sample impermissibly shifts the burden of persuasion onto Defendant for a key element of the offenses with which he is charged.
A judge had previously ruled in our favor when presented with these issues. In a DWI case we brought to jury last July, the judge had ordered the blood test suppressed because the state had destroyed the blood sample. We had challenged admissibility based our client’s right to confrontation, among other things.
In his order, the judge explained why due process required him to suppress the state’s evidence:
Due process requires that a criminal defendant have the same access to information as the State when the State offers the result of a scientific test. The State did not give Defendant an opportunity to stop destruction of this evidence. If the State offers into evidence the blood-test report, the State must also call the person who prepared the blood-test report, and a person who can testify as to the chain of custody. Without access to the blood sample, Sickmann is denied the right granted in the rules of discovery to reproduce the state's test results. The reproducibility of scientific test results is an important factor when considering the reliability of the test results.
The judge also explained why the Sixth Amendment’s Confrontation Clause requires suppression:
The BCA's policy of destroying the blood or urine sample, therefore, eliminates [Defendant]'s ability to reproduce the blood test results and limits the methods available to him to challenge the reliability of those results. The scope of the [Defendant]'s cross-examination of the witnesses who prepared the test report is unconstitutionally limited.
The Sixth Amendment's guarantee that an accused shall enjoy the right to be confronted by his accusers is vindicated only upon effective and adequate cross-examination of those witnesses. The BCA's policy of destroying the blood sample after a predetermined period of time renders [Defendant]'s opportunity to cross-examine the state's witnesses inadequate and ineffective. Because [Defendant]'s cross-examination of the witnesses who prepared the blood test report is inadequate and ineffective in light of his inability to reproduce the results, his rights under the Confrontation Clause are violated and this violation precludes admission of the blood test report.
Accordingly, this Court must conclude that at subsequent trial of this matter, the blood test report of the BCA is inadmissible.
We will see if other judges understand the constitution as Judge A.P.
Minnesota uses three types of chemical test to investigate DWI cases. There are breath tests on the Intoxilyzer 5000EN. Then Minnesota has its unique take on urine testing. The third type of test is the blood test; a type of test used in nearly every state for DWI prosecutions and considered the “gold standard” with respect to value as evidence.
Despite the massive problems with the Intoxilyzer, and the overwhelming criticism of its urine testing regime, the Minnesota Legislature passed a bill and signed into law by Governor Pawlenty, seriously undermining its last, best chance at equitably enforcing our DWI laws. Starting July 1, 2010, it appears that almost anyone a police officer chooses can draw a driver’s blood - not just registered nurses, EMTs, and the other specifically listed persons currently authorized by statute. The law protects them from civil suit if they were to cause infection or other injury.
This is troubling for numerous reasons, the least of which is the fact that blood draws, if improperly performed, can be painful, traumatic, and can transfer infectious diseases. Moreover, the current law is likely unconstitutional.
Currently, blood tests for evidentiary purposes are deemed constitutional - but not by much. In the Supreme Court case that first authorized these types of blood draws, the Court clearly explained that such a test is only reasonable where it is “taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions that would arise is a search . . . were made by other than medical personnel or in other than a medical environment.”
Police officers with limited training have routinely drawn blood in Cottage Grove, Woodbury and a few other jurisdictions. We expect that to expand. Soon, that Supreme Court’s warning 45 years ago will be ignored, at least in Minnesota. The Legislature just legalized a practice that has opened the door to roadside blood tests by officers. Instead of blood drawn “in a hospital environment according to accepted medical practices,” we fully expect cops to routinely suck drivers’ blood on the hood of a filthy squad car at the side of the road. Rest assured, we plan on fighting this law at the first available opportunity.
At Ramsay Results, part of our job is to keep current on the latest changes in the law, so that we can effectively represent our clients. If you’re arrested for a DWI - especially if the arrest involves a blood test - contact Ramsay Law Firm immediately.
As we have blogged before, urine testing is not a scientifically accepted method of determining a driver’s alcohol concentration in a DUI case. Despite this fact, more police agencies are using urine testing to determine drivers' alcohol concentration.
Our law firm continues to be very successful attacking urine tests. This month prosecutors agreed to reduce numerous urine cases to lesser offenses, eliminating mandatory jail sentences. In a number of instances, the prosecutors voluntarily dismissed the DWI charges entirely.
Judges also recognize the unscientific nature of urine tests. In one case this month, the state charged my client with a Gross Misdemeanor DWI after his urine test revealed an alcohol concentration of .22. I asked the judge to throw out the urine test result. The state objected. The officer had collected the urine sample two hours and five minutes after the stop. While acknowledging this, the state claimed that it could use “retrograde extrapolation” to prove my client had an alcohol concentration over the limit within two hours. The judge disagreed.
Urine has many limitations, one of which is that it has no burn-off rate – as does breath and blood. At the suppression hearing, the state toxicologist admitted that no reputable scientist could use a urine test result to extrapolate one’s alcohol concentration at an earlier point in time. Without the ability to tie the .22 urine test to any one point in time, the court ruled the alcohol test result irrelevant and suppressed the urine test.
With no alcohol test, the prosecutor dropped the DWI charges and my client pleaded to a careless driving. Because we had prevailed in the civil implied consent hearing, the careless was not alcohol related.
We will expose the unscientific nature of urine testing as long as police use urine testing to take away drivers’ licenses and convict them of crimes. We continue to develop new ideas to attack urine and other alcohol tests. Call us immediately if you’ve been charged with a DWI.
For years, Minnesota law has permitted the State to seize the vehicles of some arrested for DWI, sell them off, and keep the proceeds. This means that many of our clients come to us concerned not only about jail time, or loss of their driver’s license, but also worried about the fact that the State is trying to permanently deprive them of their car, their SUV, their boat, or whatever motor vehicle they were operating when they were arrested.
There are serious concerns to be raised whenever the State gets into the business of seizing a person’s private property for its own gain. When the police department and the prosecutor get to divide up the proceeds from selling off forfeited vehicles used by drunk drivers, the procedure starts to look less like it’s about public safety and more like its all about generating revenue. However, what makes DWI forfeitures so bad – so bad that they are unconstitutional – is the fact that the police get to seize the vehicle immediately . . . and then completely prevent the driver from contesting the seizure in front of a judge. See Policing for Profit for more on forfeiture abuse.
The current forfeiture law does not permit a driver to contest the seizure of his vehicle until after his criminal case has been resolved. This can take years. Despite the fact that this law has been on the books for years, we recently addressed the constitutional problems with this scheme, and won. We had a client who had his vehicle seized over a year ago. While we’ve spent over a year fighting the criminal charges lodged against him (he was charged with “refusing” a breath test. In reality, the Intoxilyzer 5000 “refused” to accept his breath sample), his vehicle sat in an impound lot, depreciating in value while remaining exposed to the elements. Meanwhile, the State patiently waited for permission to sell it at auction and divvy up the spoils.
On our motion for summary judgment, the court ruled that the forfeiture law is unconstitutional, and the vehicle was ordered to be returned. By convincing the court that this law – a law that has been enforced for years – was unconstitutional, we took a bleak looking situation and ended up getting results for our client.
Winning a DWI case means winning the criminal case, the civil Implied Consent case, and sometimes, the vehicle forfeiture case. If you’ve been charged with a crime – especially a crime that resulted in a forfeiture of your hard-earned personal property - you’ll need an attorney who knows how to defend all of your rights. That’s when you need to call Charles Ramsay Law Office. Where other attorneys have given up, we can get results.
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.
This week, Minnesota Governor Pawlenty proposed new DWI laws in an effort to significantly reduce drunk driving in Minnesota. Highlighting the changes is a requirement that all offenders install ignition interlock devices into all of their vehicles to be eligible to drive. The proposal applies to first time DWI offenders.
The proposal also aims to toughen other aspects of Minnesota DWI laws, including lowering the alcohol concentration limit from 0.20 to 0.15 for enhanced penalties; applying enhanced sanctions to all second-time DWI offenders, regardless of blood alcohol concentration; and reforming drivers’ license revocation laws.
Governor Pawlenty appears to be making a genuine effort to reduce drunk driving. It is well known that to be successful, DWI laws must emphasize rehabilitation. This proposal is a step in the right direction. However, it is riddled with pitfalls - this law is no panacea.
Topping the list of pitfalls are the unrealistic expectations. Supporters of the proposal claim the changes will nearly eliminate repeat offences. "Drunk drivers will no longer be able to get behind the wheel of a car without proving their sobriety," Pawlenty said. (Pioneer Press, Jan. 20, 2010). For that statement to be accurate, every vehicle in Minnesota would need to be permanently equipped with a breath testing locking device as standard equipment. This is not the case. The requirement is limited in duration and other unequipped vehicles are available for use. What’s stopping a person from driving another’s vehicle? What safeguards are there after the device is removed?
Additionally, the governor’s cost expectations are deceptively low. The actual cost to drivers is quite high. Although the cost varies from company to company, drivers must pay to have the device installed and removed, in addition to the monthly fee.
Already, DWI drivers must pay a reinstatement fee of $680. Currently, drivers are required to pay this before they are eligible for a work permit. The current proposal eliminates the availability of work permits and hardship licenses. As a result, the total cost of reinstatement and interlock would be cost prohibitive to many, particularly in this economic climate. Based on my observations, Minnesotans will drive without a valid license if they cannot afford to pony up the funds necessary to drive legally. In the end, the high costs of the program will create more criminals while falling short of expectations.
Not only will the changes not meet expectations, but they will further erode citizens’ constitutional rights (the “DWI exception” to the constitution). Our current Minnesota DWI laws operate under a “shoot first, ask questions later” mentality. When a driver’s alcohol test is .08 or more, their license to drive is automatically revoked, based solely on the accusation. Under this plan, a person would be forced not only to endure the license revocation, but forced to pay well over a thousand dollars to be able to drive. Yet drivers would receive no refund In the event they ultimately prevail by demonstrating the test was erroneous or invalid, or that their rights were otherwise violated.
So are the proposed changes a panacea or a patsy? Time will tell....
Minnesota’s DWI law (Chapter 169A) consumes 186 pages on Westlaw. By comparison, the entire First Degree Murder law easily fits on a single page.
Without an attorney who has the experience, knowledge and skills in the field of DWI law, you run the serious risk of losing what otherwise should be a winning case. This is especially true when it comes to the some of the arcane and obscure rules that apply in the civil “Implied Consent” case that trails along with almost every criminal DWI case.
In the context of a criminal case, any attorney worth his or her salt should know that the government must prove that an allegedly intoxicated driver was either driving, operating, or in “physical control” of a motor vehicle.
What most attorneys don’t know - probably because it isn’t even listed in a Minnesota statute - is that the State is alsorequired to prove that a person was driving, operating or in physical control of a vehicle in the civil Implied Consent case. This is an issue that can win cases, but first you have to recognize that the issue exists!
The civil implied consent law seems to limit the issues a driver may raise at the implied consent hearing. Note that none of the Implied Consent Statute does not permit a driver to challenge whether he or she was actually driving. Instead it permits a driver to challenge only whether the police officer had “probable cause.”
The scope of the hearing is limited to the issues in clauses (1) to (10):
(1) Did the peace officer have probable cause to believe the person was driving, operating, or in physical control of a motor vehicle or commercial motor vehicle in violation of section 169A.20 (driving while impaired)?
(2) Was the person lawfully placed under arrest for violation of section 169A.20?
(3) Was the person involved in a motor vehicle accident or collision resulting in property damage, personal injury, or death?
(4) Did the person refuse to take a screening test provided for by section 169A.41 (preliminary screening test)?
(5) If the screening test was administered, did the test indicate an alcohol concentration of 0.08 or more?
(6) At the time of the request for the test, did the peace officer inform the person of the person's rights and the consequences of taking or refusing the test as required by section 169A.51, subdivision 2?
(7) Did the person refuse to permit the test?
(8) If a test was taken by a person driving, operating, or in physical control of a motor vehicle, did the test results indicate at the time of testing:
(i) an alcohol concentration of 0.08 or more; or
(ii) the presence of a controlled substance listed in schedule I or II or its metabolite, other than marijuana or tetrahydrocannabinols?
(9) If a test was taken by a person driving, operating, or in physical control of a commercial motor vehicle, did the test results indicate an alcohol concentration of 0.04 or more at the time of testing?
(10) Was the testing method used valid and reliable and were the test results accurately evaluated?
Despite the statutory limitations to the contrary, drivers can and should challenge whether the state can prove they were driving when appropriate. Many attorneys miss this since the statute does not seem to permit it.
Too many attorneys give a passing glance to the maze of DWI statutes, shrug their shoulders, and decide to plea their clients and outright waive the right to a hearing. At Ramsay Results, we’re always one step ahead, looking beyond the law to make sure that any issue that can be raised, will be raised. It’s how we practice law - and it’s how we get results.
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.
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.
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.
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:
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.
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.
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.
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.
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.
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.
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.
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.
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.
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:
Minnesota Society for Criminal Justice - Source Code Coalition
Minnesota Society for Criminal Justice - Source Code Coalition
Minnesota Society for Criminal Justice - Source Code Coalition
Minnesota Society for Criminal Justice - Source Code Coalition
Minnesota Attorney General's Office
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.
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
State of Minnesota, District Court
County of First Judicial District
Petitioner vs. Commissioner of Public Safety, Respondent
Court File No.
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.
Is your DWI lawyer a member of the Minnesota Source Code Coalition? If you took an Intoxilyzer 5000 breath test and lost your license and/or you are being charged with a DWI, your attorney may not be doing all he or she can to win. Urge them to become a member immediately to defend you against the state's unscientific breath test machine.