Common indicia of intoxication include an odor of alcohol, bloodshot and watery eyes, slurred speech, and an uncooperative attitude . . . An officer needs only one objective indication of intoxication to constitute probable cause to believe a person is under the influence.
State v. Kier, 678 N.W.2d 672, 678 (Minn.App.2004) (Emphasis added).
Read the above quote from the Minnesota Court of Appeals. Ignore, for the moment, that the Court incorrectly describes both the odor of alcohol and bloodshot/watery eyes as “common indicia of intoxication” (because they are actually nothing more than indicia of alcohol consumption). Instead, focus on what those two sentences mean, because it’s scary.
In Kier, the Court was stating that anyone with bloodshot, watery eyes who gets behind the wheel of a vehicle is eligible to be arrested for DWI. The only conclusion that we can draw is that evidence of “bloodshot and watery eyes” must be so damning, so convincing, that its very existence renders a driver guilty. Surely such powerful evidence has a strong scientific foundation… doesn’t it?
Well . . . some organizations have actually spoken out about what conclusions can be drawn when an officer sees “bloodshot and watery eyes,” but they sure don’t support using the evidence to convict someone. The National Highway Traffic and Safety Administration (the organization that helped push the legal limit from .10 to .08) did a thorough study of impaired drivers in 1997. Because NHTSA’s goal was to instruct officers on how to detect and arrest drunk drivers, it created a list of eight “cues” that an officer could look for to help determine if a driver was impaired.
Guess what’s not on the list? If you guessed “bloodshot and watery eyes” you are correct. In fact, this “cue” was on the old list, and was actually removed from the list after NHTSA figured out that having bloodshot/watery eyes has as much to do with allergies and people working multiple jobs as with consuming alcohol. If a police officer based his or her decision to arrest on bloodshot watery eyes, the worst thing you can do is just accept that fact - you need to fight it.
The National Highway Traffic and Safety Administration has been telling peace officers - since 1997 - to ignore “bloodshot and watery eyes” as it pertains to allegedly drunk drivers. Yet six years later, the Kier Court was willing to say that this evidence alone was enough to authorize an arrest.
I have no reason to believe that the Kier Court was presented with the 1997 NHTSA study, or that it factored into that decision. That’s why, in my opinion, it would be malpractice not to offer this scientific study into evidence in every case where the State wants to introduce evidence of bloodshot, watery eyes. This study provides the scientific muscle a quality defense attorney needs to attack the longstanding (and incorrect) notion that bloodshot watery eyes are strong evidence that someone is impaired - and to get that evidence suppressed. The reality is that “bloodshot, watery eyes” is lukewarm evidence that someone might be suffering from allergies. . . and, to the best of my knowledge, that is not a crime in Minnesota.
One common indicia of alcohol consumption is “odor of alcohol.” Nearly every DWI police report will start with a mention of this odor, usually as soon as the officer gets within five feet of an alleged drunk driver. And it won’t just be an “odor.” It will be further defined by the officer, usually as a “moderate” odor, sometimes a “strong” odor, and on special occasions as an “overwhelming” odor. Sounds like damning evidence, right? It is, unless (like us) you know exactly how to fight in DUI cases.
Minnesota’s appellate courts certainly believe so. One recent example comes from the case of State v. Koppi (Minn. 2011) where our own Supreme Court ruled in the driver’s favor, but did so in an interesting way. In the Koppi case, the officer (no doubt honestly) described the odor of alcohol as “slight.” The Supreme Court emphasized this characterization, noting that 95% of all drunk drivers exhibit at least a “moderate” or “strong” odor of alcohol (at least, according to the officer - a point we’ll revisit in a moment). The court ruled in Koppi’s favor largely because he only had a “slight” odor of alcohol.
Compare Koppi with State v. Nur (Minn.App. 2011), which dealt with the exact same legal issues . . . but had a dramatically different result. Although both cases involved DWI arrests, the officer in Nur’s case described his odor of alcohol as “strong.” When the court ruled against Nur, it emphasized the difference between a “slight” odor of alcohol and a “strong” odor, and adopted as fact the assertion that 95% of drunk drivers exhibit a “moderate” to “strong” odor of alcohol. In State v. Mahoney (Minn.App. 2011), another case with legal issues identical to those in the Koppi case, the court stated, “the deputy in this case testified that he smelled a “strong” odor of alcohol on Mahoney's breath. This evidence stands in contrast to evidence that Koppi had only a “slight odor of alcohol.” So, it’s clear that the courts put great weight on how strong any alleged odor of alcohol really is.
This just begs the question, “when a police officer describes an odor of alcohol as “slight,” “moderate” or “strong” do they have a scientific basis for doing so?” Put another way, when a person’s breath is described as having a “strong” odor of alcohol instead of “slight,” does that actually mean that the driver is more drunk? Does odor of alcohol provide any meaningful indication that someone is “intoxicated,” or does it just merely mean that they may have consumed alcohol?
A scientific study, supported by the Insurance Institute for Highway Safety and published in a peer-reviewed journal, quickly determined that odor of alcohol is a mostly useless indicator when deciding whether to arrest a driver for DWI. In fact, after conducting their study, the authors actually came up with this conclusion:
Odor strength estimates were unrelated to BAC levels. Estimates of BAC level failed to rise above random guesses.
This study confirmed - via the scientific method - what our attorneys have long suspected. An officer’s description of the odor of alcohol as “strong” is just as useless a fact as if the officer had called it “slight” or “overwhelming.” Someone who really is drunk will be described as having a “slight” odor of alcohol, while someone who is perfectly capable of driving will, as often as not, be described as having a “strong” odor of alcohol.
This type of evidence, which doesn’t even rise to the level of “random guesses,” should never be presented to a jury in a DWI case, and should not even be used to support probable cause to arrest. We continue to educate the courts about how useless this “evidence” really is, but until the day comes that we no longer read about the distinction between “slight” and “strong” when describing odor of alcohol, our only choice is to fight, and fight, and fight!
The mere odor of alcohol about a driver’s person may be indicia of alcohol ingestion, but is no more a probable indication of intoxication than eating a meal is of gluttony.
Saucier v. State, 869 P. 2nd 483 (Ak. App. 1994) (emphasis added).
Whenever drivers are arrested for DWI, the police will write a report that describes the reasons why, in their opinion, the driver was impaired by alcohol. Nearly every officer will describe an “odor of alcohol” alongside other observations like “bloodshot, watery eyes” and “slurred speech.” Judges, prosecutors, and even some defense attorneys will incorrectly describe these observations as “indicia of intoxication,” implying that each of these confirms that someone is drunk. This could not be further from the truth.
At best, these “indicia” may reveal alcohol consumption – dramatically different that alcohol intoxication. While nobody can truly get drunk without first consuming alcohol, nearly everyone is able to have a drink without immediately becoming drunk. Yet, too often, many consider these “indicia of intoxication” as all the evidence necessary to provide probable cause to arrest a driver, or even to provide proof beyond a reasonable doubt to convict a driver.
How have these “indicia of consumption” (from this point on, I will never again refer to them as “indicia of intoxication,” and you shouldn’t either) gained such widespread use and credibility?
Partially from common usage - every police report I’ve ever seen has described the arrested driver has having smelled of alcohol, while having bloodshot, watery eyes. Some will even “grade” the odor of alcohol (after the driver has already submitted to a test), describing it as “moderate” “severe” or “overwhelming” depending on the circumstances.
Partially by acceptance by the courts - some judicial decisions are based largely on whether or not the arresting officer described the odor of alcohol as “moderate” compared to “slight.”
But, in my opinion, these indicia of consumption have become so commonplace in the courtroom because defense attorneys have not done their job to attack them.
The attack starts by simply calling these observations what they are - indicia of alcohol consumption. By doing so, we also inform the court and the jury what they are not - indicia of alcohol intoxication. But these are just labels, and while labels have power, a true attack requires more muscle. And that’s where the use of hard science comes into play.
Too many attorneys try to use the “law” to trump the State’s “science.” That’s rapidly changing - nowadays, its far more important to fight science with science, and to shed light on government practices that have gone unchallenged for too long, convicting too many innocent drivers.
Coming up, we’ll discuss some of the most overblown and overemphasized indicia of consumption that find their way into the courtroom: Odor of alcohol, bloodshot/watery eyes, and some of the more ridiculous “field sobriety tests.” And then we’ll show you exactly how each and every one is refuted by hard science.
And finally, we’ll explain why this is probably the most important topic imaginable for the future of DWI defense in Minnesota.
This week, we headed down to Mansfield, Ohio to get some first hand knowledge about Minnesota's new breath test machine, the DataMaster. Today, we toured the plant and attended several lectures regarding the science behind infrared spectrometry and fuel cell detection of alcohol.
Tomorrow we get to grill several of the manufacturer's employees regarding the specifics of the machine that will be used in Minnesota.
Stay tuned- we'll be posting more about our impressions and analysis of Minnesota's new breath testing device in the upcoming weeks.
We blogged last week regarding yet another problem that affects first void urine alcohol tests (F-VUAT) that are tested by the Minnesota Bureau of Criminal Apprehension. In one case, we re-tested a urine sample that was reported to have an alcohol concentration of .09. Our retest, performed at an accredited laboratory, reported a result of .05 – significantly lower than .09, and well below the legal limit of .08.
Via sworn testimony at an Implied Consent hearing, we were told the following two tidbits:
1) The open admission that BCA forensic scientists routinely botch the handling of crucial evidence in about half of all DWI urine cases, resulting in destruction of the evidence; and,
2)The revelation that this mishandling of evidence, a problem that was announced to have been “solved” in a 2003 study by the BCA toxicology supervisor, has actually continued non-stop since that day, and that the BCA does not think that it is necessary to inform anyone about it.
So why the discrepancy?
Although the BCA forensic scientist who analyzed the sample was unable to account for the differences, the Commissioner called a second BCA employee to justify the discrepancy. His explanation was alarming.
He claimed that after testing our client’s sample, the BCA froze what was left to “preserve” it. He then speculated that the freezing (instead of refrigerating) the sample caused it to lose alcohol. This, despite the fact that the 2003 peer-reviewed study addressed this issue and determined that the use of a different type of storage container would correct any problems like this.
Strangely, while acknowledging the BCA continues to use the same containers that were previously found to correctly preserve these urine samples, he then testified that the conclusions of the previous 2003 peer-reviewed study are wrong – despite the fact that 1) he was an employee of the BCA at the time the study was published, 2) neither he nor the BCA has taken steps to correct the published article, and 3) he is of the personal opinion that the BCA has no duty to actually preserve these samples for retesting, because his lab results are good enough!
Not only does he disagree with the published 2003 peer- reviewed study, he openly speculated that shoddy work forensic scientists at the BCA are responsible for this discrepancy. Specifically, his “conjecture” is that the forensic scientist who analyzed our client’s urine test failed to properly seal the urine container - which then purportedly allowed the alcohol to evaporate. He also believes that an analyst’s failure to properly secure the lid on the urine samples occurs in about ½ of all the urine test samples at the BCA lab! Under his version of the truth, literally thousands of samples are being destroyed (from an evidentiary standpoint) because analysts can’t be bothered to tighten the lids properly.
If this explanation holds up in court, the BCA has stumbled upon a dramatic new way to forever prevent any other lab from reviewing their results. If a retested sample produces the same results, they can claim that this just supports the fact that they did everything right the first time. If a retested sample produces different results, they can keep on saying that they did everything right the first time, and blame that tricky sample for changing on them!
Last week we rhetorically askedwhen would a courageous BCA employee come forward and blow the whistle on BCA practices. We did not think it would happen like this! Ironically, it is the “whistleblower’s” attempt to explain the discrepancy between two test results that reveals not only widespread incompetence and fraud by omission, but as a panel of judges in the State of Washington put it, it may also reveal a culture of “‘culture of compromise’ with so many “ethical lapses, systemic inaccuracy, negligence and violations of scientific principles.”
Are we just beginning to scratch the surface in Minnesota?
A senior forensic scientist at Minnesota’s Bureau of Criminal Apprehension (BCA) has come forward with shocking revelations. According to the sworn testimony of the 25-year veteran:
1)BCA forensic scientists routinely botch the handling of crucial evidence in about half of all DWI urine cases, resulting in destruction of the evidence; and,
2)A 2003 BCA study published in a prestigious publication includes misleading results and inaccurate conclusions; the BCA has refused to publicly correct its findings and conclusions with the scientific community.
Unfortunately, these revelations come not from a courageous government servant blowing the whistle on shoddy forensic work and unethical conduct. Instead, it’s just another attempt by the Minnesota BCA to justify - at all costs – a truly shocking lack of scientific accountability.
The Rest of the Story…
The two revelations listed above came to light during a civil implied consent hearing. The State revoked our client’s driver’s license when the BCA reported a urine test result as .09. We had the same sample analyzed by an independent lab, which reported a .05! (See more on independent analysis of urine samples). Now, before you jump to any conclusions, you need to know that two separate BCA witnesses and our privately retained forensic scientist all agreed that the independent lab’s test result was valid, reliable and accurate.
The parties presented two equally valid samples with widely disparate results. One result supported the license revocation (being slightly above a .08) while the other (well below .08) did not.
This situation underscores just one of the many, many problems that surround the use of first void urine alcohol tests (F-VUAT) for DWI purposes. Not only can two separate urine samples, taken minutes apart, produce dramatically different results, but now we see that the same sample, tested on different days, can also produce shockingly inconsistent results.
How did we get to this point? Did the BCA, faced with such baffling evidence, agree that their procedures were faulty? Did the State admit error, and tell our client she could have her license back? Sadly, when you live and drive in one of the only states in the world who still use F-VUAT, you’re not dealing with a state that is likely to admit that it made a mistake.
Instead, what was revealed was the startling revelations revealed above. Next week, we’ll relay to you exactly what was said, and why it’s so troubling.
The last source code brief is in! The Source Code Coalition filed its reply brief on behalf of thousands of Defendants and Drivers with the Minnesota Supreme Court on October 17, 2011. This is the last of the briefs to be submitted to the Minnesota Supreme Court on this issue. We anticipate the Supreme Court will schedule a date for oral argument soon.
Here are the other briefs filed in this matter pending before the Supreme Court:
Minnesota finally is using its new breath test machine, the DataMaster DMT. The state has produced no public information about these machines, so my office contacted the Minnesota Bureau of Criminal Apprehension (BCA) on two occasions last week in attempt to obtain documentation for the machine.
BCA employees initially claimed the DataMaster breath test machine was not yet “deployed” and therefore no manuals are available. After we told them that we are aware of several instances where police officers used the machine for DWI testing to revoke several drivers’ licenses, they admitted the machines were being used only in a “pilot program.”
One of my firm’s employees spoke to a supervisor. We specifically requested the DataMaster DMT manual, documents used to train operators and any other documents related to the breath test machine. The supervisor said the BCA would not provide any of the documents, and insisted we go through the Office of the Attorney General and obtain them through formal discovery in an actual DWI case.
This is disturbing. Because discovery is specifically limited by Minnesota’s Implied Consent Act, the BCA’s position requires a court order to obtain the public documents in a DWI case with the Attorney General.
The relevant part of the implied consent law says:
Judicial reviews must be conducted according to the Rules of Civil Procedure, except that prehearing discovery is mandatory and is limited to:
(1) the notice of revocation;
(2) the test record or, in the case of blood or urine tests, the certificate of analysis;
(3) the peace officer's certificate and any accompanying documentation submitted by the arresting officer to the commissioner; and
(4) disclosure of potential witnesses, including experts, and the basis of their testimony.
Other types of discovery are available only upon order of the court.
This is a change from the way the BCA has traditionally handled such requests. Previously the BCA was much more open to requests for information.
This is not the first time the BCA’s toxicology section has copped an attitude. As Judge Abrams wrote in his source code order:
Those responsible for the operation and maintenance of the [Intoxilyzer 5000 at the BCA] have been defensive and at times outright hostile to the suggestion that problems may exist, which has in turn led to the instant challenge. … A less defensive posture and access to the [information] at an earlier time would likely have increased confidence in results and reduced the need for this protracted litigation.
While we hope the government learns from its mistakes, it seems the BCA is unaware of the Minnesota Government Data Practices Act which requires disclosure as well. Failure to turn over the documentation under the act could likely result in payment of sanctions.
While we will be filing a formal data practices request this week, we are disappointed the BCA would again entrench itself in secrecy.
There are two types of punishment the state can impose on a driver who allegedly operated a motor vehicle while impaired by alcohol or a controlled substance – although not all controlled substances are viewed equally. In Minnesota, the state cannot revoke your license to drive (one type of punishment) based solely on a positive blood or urine test for marijuana under Minnesota’s Implied Consent laws. However, if a prosecutor charges you with the crime of driving while impaired (the second type of punishment) you will lose your license if convicted.
Minnesota has two methods of taking your license in this situation: through the Minnesota Implied Consent Act (civil driver’s license revocation) and as a direct consequence if you are convicted of a crime.
Civil Driver’s License Revocation
Minnesota’s Implied Consent Act permits the state to revoke a driver’s license to drive when a driver’s alcohol concentration is .08 or more or when a blood or urine test detects any amount of most drugs or their metabolites, including prescription medications. As we discussed recently, the state may take the license even before the driver goes to court under the Implied Consent Act.
However, Minnesota treats marijuana differently from other drugs and alcohol. It cannot take away a person’s license to drive under this law when blood or urine tests detect the presence of marijuana under any circumstances.
Criminal DWI Laws
So, in Minnesota, it is not, under the Implied Consent Laws, automatically a crime to drive a vehicle with marijuana in your blood or urine. Unlike other drugs, Minnesota does not make it a crime to have marijuana in a driver’s system – meaning that there is no “per se” limit for marijuana. While the legal driving limit for alcohol is .08, and any amount of methamphetamine will provide a basis to charge someone with DWI, there is no minimum (or even a maximum) amount of marijuana that you can have in your system before it is illegal to drive.
This isn't to say you can feel free to toke up prior to driving, because it is still a crime to drive while "under the influence " of marijuana. If a person is actually impaired by the use of marijuana at the time they are driving, they can and probably will be charged with DWI. However, unless you plead guilty to such a charge, it is extremely difficult for a prosecutor in most cases to meet the burden of proving guilt beyond a reasonable doubt. If the matter goes to a jury, a good defense attorney can often suppress the results of any blood or urine tests, as the scientific community is in agreement that evidence of prior marijuana consumption simply does not have any bearing on whether or not someone was actually impaired by marijuana. And without those test results, the prosecutor's case is usually pretty weak. While it is never a good idea to drive a vehicle while tired, texting, after consuming alcohol, or with any sort of "hard" narcotic in your system, Minnesota has crafted its laws in such a way so as to make it easier to avoid a license revocation for those drivers who may have recreationally used marijuana in the past (which, let me make clear, is a crime in Minnesota) but who were not impaired at the time they were actually driving.
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.
Last week we told you that the scientific community requires blood, breath and urine tests be reported not as a certainty, but with a confidence interval that has a high probability of containing the true alcohol level. (This is not to be confused with results involving mistakes or blunders; uncertainty assumes that no mistakes or blunders have been made.) Therefore, due to the uncertainty in every measurement, the state must report a DWI alcohol test results with a range, not as a single number.
This raises some interesting questions for drivers in Minnesota who face criminal penalties or civil license revocation, or vehicle forfeiture.
Are there established confidence intervals for Minnesota DWI tests?
Despite the 2009 National Academy of Science Report to Congress which requires that each lab analyze and establish confidence intervals for each type of test, Minnesota has failed. Nationally renowned attorney, Ted Vosk, has advocated with some success that no test result should be admitted as evidence unless it meets these criteria. (Note to practicing attorneys, judges and scientists: I highly recommend you read Mr. Vosk’s work along with the NAS report to get a better understanding. See others including Justin McShane.)
How can I use measurement uncertainty in my case?
One well respected scientist has analyzed the data from Minnesota’s Intoxilyzer 5000 to establish a confident interval. Analyzing test data provided by the Minnesota BCA of more than 44,000 breath tests, Rod Gullberg determined that the uncertainty of measurement of a .08 breath test in Minnesota’s Intoxilyzer 5000 EN is approximately nine percent. Rod G. Gullberg, Breath Alcohol Measurement Variability Assessment with Different Instruments & Protocols, 131 Forensic Science International 30 (2003).
This percentage increases with the level of alcohol. At an alcohol concentration of 0.20, the measurement uncertainty is even greater. One must have a thorough understanding of complicated mathematical and scientific concepts to use his formula. For more information, see his work at the Borkenstein Course.
So what does this mean for drivers with alcohol concentrations close to critical levels? The Minnesota legislature has mad .04, .08, .16, .20 critical levels of alcohol concentration. In addition to other defenses, measurement uncertainty should be employed to defeat blood, breath and urine testing.
Minnesota analyzes drivers’ blood, breath and urine to determine a specific level of alcohol concentration. The manner in which the state reports the results leads us to believe they are very certain that the results are 100% accurate.
This is definitely not the case and is inconsistent with well-established scientific standards.
As with all scientific testing, laboratory analyses conducted by forensic scientists are subject to measurement error. Consider the following situation, based on an example taken from 2009 National Academy of Science Report to Congress:
It’s a DWI case in which the Minnesota Bureau of Criminal Apprehension tests a driver’s blood using “state of the art” instruments. The lab analyzes the blood three times. The instruments’ measurements are 0.08 percent, 0.09 percent, and 0.10 percent.
Minnesota takes the lower of the three measurements, and reports that result – 0.08 – as a certainty. They even try to claim that by taking the lowest number, they’re somehow “helping” the test subject by giving them the benefit of the doubt. This is not only incredibly misleading, but in examples like this, downright wrong. It’s the type of sleight of hand that looks good, but is flat out unscientific. Scientifically speaking, the “conclusion” that should be reached in the above example is that the test result is no higher than .07! (0.09 +- .02 for those of you with statistics training, and further explained below).
As the NAS Report says, the variability in the three measurements may arise from the internal components of the instrument, the different times and ways in which the measurements were taken, or a variety of other factors. These measured results must be reported, along with a confidence interval that has a high probability of containing the true blood-alcohol level (e.g., the mean plus or minus two standard deviations). For this illustration, the average is 0.09 percent and the standard deviation is 0.01 percent; therefore, a two-standard-deviation confidence interval (0.07 percent, 0.11 percent) has a high probability of containing the person’s true blood-alcohol level.
In criminal cases the government has the burden to prove beyond a reasonable doubt the driver’s alcohol concentration is over a specific alcohol concentration. When the Intoxilyzer reports an alcohol concentration of .08, juries are left to believe that result is a certainty. It is not.
This becomes even more significant when test results are near .04, .08, .16, .20. The government lab report misleads judges, juries and the Minnesota Department of Public Safety. As a result, drivers are erroneously convicted of drunk driving and may go to jail. They may lose their license to drive and face penalties which include ignition interlock, or vehicle forfeiture and plate impoundment.
Next: Are there established confidence intervals for Minnesota DWI tests? What are they? How can I use them in my case?
Currently, the consolidated source code litigation, originally presided over by Judge Abrams, is up on appeal before the Minnesota Supreme Court. This has caused more than a little confusion in the various district courts, as each judicial district tries to decide how to proceed with DWI cases based on Intoxilyzer 5000EN breath test results.
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 use of urine tests for DWI’s in Minnesota received yet another endorsement from the Court of Appeals today. At issue in the case of Ellingson v. Comm’r of Pub. Safety was the question of whether urine tests fell into the “single factor exigency” doctrine that permits law enforcement to collect other types of samples (blood and breath) without first obtaining a warrant.
What makes the issue compelling - and highlights another reason why Minnesota is pretty much the only place in the world that is still using urine tests - has to do with the basic fact that the alcohol in a person’s bladder is fundamentally different than the alcohol in a person’s bloodstream.
The argument, simply put, is that while your average person’s blood alcohol steadily decreases over time (due to action by the liver and kidneys) the same doesn’t hold true for alcohol in a person’s bladder. In fact, we’ve presented unrebutted expert testimony in court that urine alcohol, compared to blood alcohol, doesn’t decrease at all.
In the Ellingson case, the court was only presented with the testimony of a government-paid, government employed lab technician, who convinced the court that urine alcohol “could” rapidly change in concentration. However, if you ask a toxicologist who isn’t employed by the Minnesota Bureau of Criminal Apphrension, they’ll tell you that any change in urine alcohol concentration could affect, at most, the third digit (example: a sample that would test at .105 could, over an hour, change by about .002).
Thus, the “single-factor exigency” doctrine, which was designed to apply in blood and breath test cases where alcohol concentration can go down by .015 in an hour, now applies to situations where any alcohol concentration may be decreasing by a comparatively minuscule amount.
This issue is far from finished. The Ellingson court based its finding on a very lenient standard of review (it gave great deference to the lower court’s opinion of the testimony it was presented with). In another case, with more accurate testimony, the courts will still be free to find that urine alcohol concentration doesn’t diminish rapidly enough to permit a warrantless intrusion. This is just another example of bad facts making for bad law.
Yesterday the Commissioner of Public Safety filed a Petition for Accelerated Review with the Minnesota Supreme Court. This Petition follows the April 27, 2011 Order of the Minnesota Court of Appeals granting the Petition for Discretionary Review which was filed by counsel for Minnesota Petitioners and Defendants.
Minnesota’s expansion of ignition interlock devices this summer may cause more problems than state officials anticipated. You might remember our previous blog about the earlier stages of this program, but now the “pilot” project is official. As of July 1, 2011, first time DWI arrestees may be required to install the devices in their vehicles in order to get their drivers’ licenses back in a reasonable period of time.
State officials might see the interlock device as a panacea for repeat DWI offenders (see below), but what I see are all of the potential problems that will arise.
Minnesota Lawyer’s front page story this week, headlined, “DWI Law Changes Worry Lawyers,” cited Bill Lemons, the traffic safety resource prosecutor from the Minnesota County Attorneys Association, as saying,
[T]he program helps offenders get their lives back on track sooner because they can drive right away, and the ignition interlocks will mean safer roads for everyone else. In addition, it ensures offenders will drive legally instead of driving with a revoked license.
“We would like to see all [of those offenders] get the ignition interlock,” said Lemons. “The research shows that the program is only effective when the device is in the car. Absent that behavior changing program, the likelihood to re-offend goes right back to where it was.”
Defense attorneys paint a less-rosy picture. Jeff Sheridan, a criminal defense attorney from Eagan, told the paper the law fails to take into account that not every other state has an ignition interlock program.
“What about the guy who is up here on business and gets arrested and his state doesn’t do interlock?” Sheridan said. “Is his home state is required to enforce the revocation? Is he supposed to put [a device] on his car anyway?
“I encourage the interlock device [with my clients] but assuming that there are going to be no problems is a bit of a step,” he said.
Kelly Keegan, an Anoka defense attorney, pointed out other limitations to the program, including the hefty price of participating - costs that may prevent many from using the device at all.
Minnesota Lawyer asked me about a bill pending before the legislature which would significantly increase the driver’s license revocation period for repeat offenders and for those with an alcohol concentration .16 or more. As I told the weekly publication, the legislature’s tinkering will have unintended consequences. As just one example, the current version of the bill acts as an incentive for drivers to refuse testing, which is something that State undoubtedly wants to avoid.
-How well do these ignition interlock devices actually work?
-Who gets these government contracts? As Mike writes, “It can be a nice money making monopoly for some companies.”
I will be watching this issue very closely, including how other states have handled the problems that go hand in hand with ignition interlock. But for now, I agree with Minnesota Lawyer reporter Patrick Thornton, “Come this summer, DWI defense lawyers are going to be busy.”
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.
Judge Abrams noted that Minnesota officials and the BCA have been aware of the broken Intoxilyzer since at least 2006, but have refused to install corrected software.
The slope detection software … does reject under somecircumstances samples which are valid. … In situations where this result has been reported due to slope acceptance criteria in the 240 version of the software, the BCA could have implemented corrective software but chose not to update the instruments. This conclusion is confirmed by the testimony of the BCA witnesses.
Now that Judge Abrams has made official findings that the Intoxilyzer 5000 software does not work properly and that the BCA has a fix to correct the problem, it would be reasonable to believe we would stop using these broken machines for DWI alcohol testing.
[T]he BCA was aware from the fall of 2006 onward that a change in the Source Code was made that caused, under some circumstances, previously acceptable breath samples to be rejected. This software, version 240, continues to be used with knowledge of this problem and without change or correction by the BCA.
Surprisingly, Minnesota continues to use these fatally flawed machines to revoke drivers’ licenses and put innocent people in jail.
Why?
Perhaps the answer lies in the arrogance of state officials responsible for the use of the Intoxilyzer 5000EN. According to Judge Abrams:
There is a general perception that perfection and flawless operation is present in the Intoxilyzer and its test results. Those responsible for the operation and maintenance of the device have been defensive and at times outright hostile to the suggestion that problems may exist….
Luckily, we now have the evidence we need to suppress every Intoxilyzer test that reports a “deficient sample,” no matter how long the State continues to use this broken machine. Be sure to stick around for tomorrow’s blog, where we detail how every case where the Intoxilyzer reported a deficient sample should be dismissed . . . and why.
Minnesota continues to use Intoxilyzer 5000 Despite Hundreds of Defective Breath Cases Annually.
Last month, Judge Abrams issued his consolidated Intoxilyzer source code order. In a case directly affecting more than 4,000 Minnesota DWIs – and thousands more indirectly – the court decided that the Intoxilyzer, while suffering from many defects, is not so flawed as to prevent the test results from being admitted into evidence in most cases. In other words, the test results are “close enough for government work,” but drivers’ attorneys are still free to present evidence attacking the results (even this conclusion is currently under appeal).
Few people realize that Judge Abrams did not find that all test results are admissible. He actually highlighted the fatal errors in the source code that wrongly reject perfectly valid samples, stating 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 in such cases of a ‘Deficient Sample’ test report should not be allowed ….”
In the order’s Conclusion, the court indicates the machine reports a deficient sample even when the sample is not actually deficient.
There is one limited situation, as discussed earlier, in which the labeling of a sample as “deficient” arises from multiple causes. At least one of these causes is a consequence of the Source Code's instructions to the microprocessors and has little, if anything, to do with whether the sample is actually deficient.
Under my cross examination, BCA experts were forced to openly admit that the current version of the source code has more than three times the number of deficient samples as the prior version. According to the BCA’s own data, hundreds of drivers each year who provide a sample greater than 1.1 liters are deemed to have provided a deficient sample!
We’ve been striving for years to bring these issues into the public spotlight. Now, with Judge Abrams’ order, we finally have the evidence we need to successfully debunk the myth that every driver who provided a “deficient sample” was somehow at fault.
Of course, now that we’ve unmasked these fatal errors in the source code, the State will stop using the Intoxilyzer . . . right? If only life were that simple: stay tuned for tomorrow’s blog, explaining just how long the State has known about these errors, and why they plan to keep on using the broken Intoxilyzer, regardless of its known flaws.
Then be sure to check back on Thursday, when we will discuss exactly why Judge Abrams' order should results in the dismissal of almost any case where a "deficient sample" was reported.
Many believed challenges to DWI alcohol urine testing were finished last December after the Minnesota Court of Appeals issued a series of decisions. Recent orders issued by the Minnesota Supreme Court, however, provide hope for those accused of DWI based on a urine test.
In State v. Edstrom – a case with a shaky and dubious procedural posture – the Minnesota Court of Appeals affirmed a lower court’s finding that DWI urine alcohol testing is generally accepted by the scientific community.
The following week the court of appeals held in State v. Tanksley that the trial court erred by denying a Frye hearing in a urine test case, but – based on Edstrom – the court held the error harmless. The court also upheld the district court’s suppression of expert testimony challenging the validity, reliability and accuracy of the urine test result.
Shortly thereafter the court of appeals again affirmed a trial court’s decision prohibiting a driver from offering expert evidence on the reliability of urine testing to measure alcohol concentration in State v. Dixon. The court justified denying the driver his fundamental right to present a complete defense because, “Minnesota recognizes urine testing as a reliable method of measuring alcohol concentration.”
Minnesota Supreme Court Grants Review.
Last month the Minnesota Supreme Court accepted review of State v. Tanksley and State v. Dixon (the parties in Edstrom did not seek review; it appears that had they done so, it likely would have been granted).
In its order granting review of Dixon, the Supreme Court provided insight on at least one of the issues that it felt required review:
IT IS HEREBY ORDERED that the petition of Matt Dixon, Jr., for further review be, and the same is, granted on the issue concerning exclusion of defense evidence challenging the reliability of urine testing, and all proceedings are stayed pending final disposition in State v. Tanksley, No. A10-392. The petition is denied on all remaining issues.
Judges across the state have denied drivers the right to tell the whole story to a jury: that urine testing is junk science. With the Minnesota Supreme Court reviewing the issue on appeal, we hope that will change.
Today, the Office of the Minnesota Attorney General on behalf of the Commissioner of Public Safety and Prosecution Liaison Counsel for the State of Minnesota filed responses to the Appeal of Judge Abrams’ Order. The defense trial team appealed Judge Abrams’ Order on March 28, 2011.
We blogged previously about the new “cutting edge” type of urine test - the EtG urine test. This new type of testing is primarily used for probation violations (where the person is expected to entirely abstain from alcohol) whereas the more traditional form of urine test is used for both violating probationers and prosecuting drivers. One thing both types of urine test have in common is that government scientists don’t approve of their use in criminal cases.
DWI urine tests are not generally accepted by the scientific community, but the Minnesota BCA continues to use them. Now, the US health department's Substance Abuse and Mental Health Services Administration (SAMHSA) has issued its second report in five years calling the EtG test "inappropriate" and "scientifically unsupportable,” yet there is no doubt that Minnesota will continue to use this test to incarcerate its citizens.
If you are on probation, or have a “B-card” restriction on your driver’s license, be warned that the use of hand sanitizers or the consumption of sauerkraut may ultimately provide the State with enough evidence to put you in jail.
The briefs are in! Today both the state and drivers submitted written closing arguments to Judge Abrams in the consolidated breath test case. The Court will render its decision within 90 days.
We’ve previously blogged about the serious problems that arise when the government tries to enforce its DWI laws with urine testing. Despite these known problems, Minnesota continues to use discredited urine tests. Now, they are starting to take things one step further - using a new, error-prone method of analyzing urine samples to “prove” that someone recently consumed alcohol.
The science behind this post is a little complicated, but the results are easy to explain: scientists are claiming that they can test a urine sample for the presence of ethyl glucuronide (EtG), which is basically a “byproduct” of alcohol consumption - a byproduct that can be detected days after someone consumed any alcohol.
Probation officers and prosecutors alike love this new type of urine test- most people on probation are specifically ordered to abstain from alcohol, and any consumed alcohol has usually left the system before someone can be brought in for a random urinalysis test. With these new tests for EtG, the government can find out if someone drank alcohol three days ago, instead of only three hours ago.
Sounds fair, right? WRONG. We’ve noticed more and more EtG tests being used and spent a great deal of time studying the science behind the testing. We have discovered just how unreliable these tests are. If someone “fails” a test for EtG, it may mean that they consumed alcohol sometime in the previous few days . . . but it can also mean that they used a common hand-sanitizer sometime in the previous few days. Non-alcoholic beer and mouthwash can cause false positive results. So can consuming bananas. Even sauerkraut can generate EtG in a urine sample.
The message is clear: if you’re prohibited from consuming alcohol as a condition of probation, be sure to avoid sauerkraut and bananas. The State has a new test they may ask you to perform, and your craving for fruit and cabbage may end up putting you behind bars.
While a negative Etg test is conclusive proof that a person did not recently consume alcohol, it does not follow that a positive is conclusive proof that a person did recently consume alcohol.
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!
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.
On July 1, 2010, the Legislature updated Minnesota’s DWI laws in one troubling aspect. Before July 1, the law stated that only specific types of individuals could perform blood draws for DWI purposes - registered nurses, medical laboratory technicians and the like. These types of people work in labs and hospitals, making it likely that any blood draw would be performed by people who were both highly qualified, and working in a sterile environment.
As of July 1, Minnesota’s DWI law now allows anyone who is considered a “qualified person” to draw blood. In a previous blog, we wondered if the State would use this new law to start performing roadside blood tests by under-qualified individuals. It didn’t take them long to make this concern a reality.
Minnesota peace officers are now being given a 40 hour course that will supposedly “qualify” them to perform blood draws. That’s 8 hours of online training, and 32 hours of “lab exercises” before they can begin sticking needles into Minnesota drivers. Forty hours of training, versus obtaining a certification that can take years . . .
We predict that we’ll soon begin to meet with clients who were arrested because an officer suspected them of driving while intoxicated, and then stuck them with a needle right there on the hood of the squad car. And we’re already planning on ways to highlight just how unconstitutionally coercive and outright shocking such behavior is.
At this rate, how far are we from allowing vitreous eye fluid tests for intoxication? This is definitely an area of law that bears careful watching.
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.
More Questions:
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.
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.
Frye-Mack Standard
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.
Urine testing has no place in determining whether or not a state’s DWI laws have been violated. Despite near universal rejection of urine specimens for DWI enforcement, the folks at the Minnesota Bureau of Criminal Apprehension (BCA) stand nearly alone in continuing to use this junk science to put people behind bars.
Our firm has been at the forefront of the fight against urine tests, demonstrating again and again exactly why urine testing has no place when it comes to enforcing DWI laws. In every case we present decades of scholarly articles and learned treatises rejecting urine testing.
Because of our success, the BCA has come up with some new “evidence” in an effort to build support for DWI urine testing in Minnesota. Last week the state presented a single piece of paper drafted by one BCA scientist that we’ve lovingly dubbed the “Urge to Purge” memorandum. This memorandum attempts to overcome the obvious fact that when you are given a urine test, the sample demonstrates a “pooled” or average alcohol concentration, and not your actual alcohol concentration from the time you were driving. Basically, a urine test can report – at best – an average alcohol concentration since the subject had last voided his or her bladder.
The “Urge to Purge” memorandum tries to imply that the diuretic effect of alcohol (the well-known fact that drinking makes you have to pee) means that anyone who is drinking is also peeing non-stop, and so any urine sample will be “accurate enough.” What the data doesn’t take into account is simple science; specifically, the well-documented fact that the alcohol only has a diuretic effect during the absorptive phase of alcohol (which stops about an hour after drinking) and not during the post-adsorptive phase (after the alcohol has been fully absorbed).
It appears the state seeks to use their new “science” to refute the well-founded legal position that the police need a search warrant to force a urine test. Because alcohol doesn’t dissipate in the bladder, there is no immediate need to obtain a sample, as in the case of breath tests. The state’s “urge to purge” memorandum implies that a person will wet their pants before a cop can get a warrant. There is no science to back up the state’s claim.
To make a long-story short, the “Urge to Purge” memorandum that the BCA is now touting is about as relevant to urine testing as a chart explaining how blondes have more fun. It just doesn’t matter.
Hopefully - someday - the BCA will learn not to support junk science with more junk science. Until that day comes, we’ll be here, continuing to attack this flawed test in the courtroom.
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.
The State’s decision to give over $1.5 million dollars to a company other than CMI, Inc. of Kentucky (the manufacturer of the Intoxilyzer) is hardly surprising to us, but is an interesting decision that speaks volumes about the State’s lack of faith in the Intoxilyzer machine.
The State has repeatedly claimed that it has absolute faith in the accuracy, validity, and reliability of the Intoxilyzer 5000. However, it’s difficult to believe these claims when the State made the clear decision to abandon the Intoxilyzer altogether (they could have purchased the “state of the art” Intoxilyzer 8000).
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.”
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“B Card Violation” – Judge Order Driver’s License Reinstated
The Department of Public Safety cancelled my client’s license to drive. They claimed that he was driving in violation of his restricted driver’s license (which prohibited him from consuming ANY alcohol while behind the wheel).
Our client was involved in an accident in Hennepin County. After reporting to the scene, the police officer claimed to smell an order of alcohol, said our client failed the Horizontal Gaze Nystagmus test, and reported my client’s alcohol concentration was .06 on the preliminary breath test.
Many attorneys believe such “B card” cases are impossible to win – after all, the government just has to prove that our client had a drink (not that he was impaired). Despite the common misconception that this type of case is unwinnable, we won! We challenged the DPS’ evidence in court and convinced the judge to overturn the license cancellation and reinstate my client’s driver’s license.
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DWI – Police Officer Coerced Driver’s “Consent” to take DWI alcohol test
In another case we challenged how the police officer obtained our client’s “consent” to a urine test. As we’ve blogged about before, we believe Minnesota’s implied consent law is unconstitutional as it unlawfully coerces all drivers to submit to DWI alcohol testing.
The judge disagreed with our argument, and we lost at the district court level. That didn’t slow us down – we simply took the fight to the next level, and we appealed to the Minnesota Court of Appeals. After we submitted our appellate memorandum, we received a stunning letter from the government – they would agree to give our client his license back (a victory) if we withdrew the appeal. Thus, solely on the strength of our written memorandum (before we even had to argue the case in front of the appellate court) we won the case!
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Prostitution Sting: Soliciting Prostitution – Case Dismissed
Our firm practices only criminal defense and related civil cases, e.g., automobile forfeitures. Although the majority of our case load is Minnesota DWI cases, we regularly represent people charged in other types of cases as well.
In Ramsey County, our client was arrested as a result of a St. Paul Police prostitution sting. He was charged with Loitering with Intent to Solicit Prostitution. After we obtained the police reports, video & audio recordings, and other documents, we started pushing the government hard – and were able to obtain a complete dismissal of the charges.
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Fifth Degree Criminal Sexual Conduct – Case Dismissed
In another criminal case in Ramsey County, the government charged our client with Fifth Degree Criminal Sexual Conduct. We challenged the criminal charges and showed the prosecutor the weaknesses in its case. Again, they dismissed all of the criminal charges.
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DWI – Bad Seizure– Judge Orders License Reinstated after Urine Test
In a Scott County case, our client was charged with a DWI after he was arrested and given a urine test. The results were .11, well over the legal limit.
Through experience and a desire to fully defend our client, we were able to get the state to dismiss the DWI charges against our client. Shortly thereafter, we convinced the judge in the implied consent case to rule in our favor as well, and restore our client’s driver’s license.
The end result of this “unbeatable” DWI charge? All criminal charges were dismissed, and our client’s driving record doesn’t even reflect being pulled over for a DWI offense.
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DWI – Judge Grants Motion for Post-Conviction Hearing
A judge granted our motion for a post-conviction hearing in our efforts to get a new trial in a highly publicized case that we took to trial more than four years ago. In that case, our client was charged with “test refusal” on the Intoxilyzer 5000 because she was unable to provide an “adequate sample.” She begged for the chance to take another test, but wasn’t allowed to. Because we had not yet uncovered the critical flaw in the Intoxilyzer that causes such errors, the jury found our client guilty of test refusal.
Since that trial, our client’s conviction was overturned by the Minnesota Court of Appeals, and then reversed again by the Minnesota Supreme Court.
Now, four years later, the trial court judge is granting us a new hearing based on the evidence we discovered concerning the faulty source code that runs Minnesota’s breath test machine, the Intoxilyzer 5000. The case is scheduled to be heard next month.
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DWI – Judge Grants Motion for Unprecedented Access to the Source Code
In a civil license revocation case involving the same driver as above, a judge granted our motion for the source code to the Intoxilyzer 5000. However, this case is a good example of what can happen if you reach for the stars; we not only asked for the source code, but also demanded key pieces of source code information well beyond that which was provided in the federal court settlement last year. After listening to our arguments, the court granted our motion, further opening the door to prevent our client from being wrongfully charged as a “test refusal.”
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DWI – .19 Blood Test Dismissed
DWI – .19 Breath Test Dismissed (Source Code)
DWI – .10 Breath Test Dismissed (Source Code)
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“Can’t Win ‘em All . . . But Can’t Win Any If You Don’t Try”
A prosecutor in Ramsey County did manage to hand us our first DWI trial loss in years, in a case where the judge admitted into evidence a .14 urine test result. After careful consultation, our client decided that he wanted his case tried to a jury, despite the prejudicial test result. That jury ultimately found our client guilty.
Fortunately, the judge gave our client the exact same sentence he would have handed down had our client pled guilty without going to trial. As long as there is no disincentive to go to trial, we’ll do just that!
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DWI –Just Reinstates License to Drive – Right to Counsel – .14 Breath Test
In a huge win in a difficult case, a Hennepin County judge ruled in our favor and reinstated our client’s driver’s license after an implied consent hearing (we had already beat the DWI charge on the criminal case). This was a difficult situation where our client was deaf, and had repeatedly begged the arresting officer for either an interpreter or the advice of a lawyer. Although the officer did make some attempts to communicate with our client, he did not know American Sign Language, and the court agreed that her right to counsel was not vindicated.
This is a huge win not only because our client got her driver’s license back, but because this case also resulted in the police department installing a TTY communication device, for hearing-impaired persons.
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Finally, Chuck was named, “Geek of the week” by nationally renowned attorney, Justin McShane of Pennsylvania. The “Truth About Forensic Science”, McShane’s forensic blog, named Ramsay winner of his weekly forensic science quiz, aptly entitled, “Geek of the Week.”
Okay, so it is not a Nobel, but it's a good distraction for Chuck.
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
Internet: http://www.dps.state.mn.us/bca/
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 5.4.7.1 (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.
Sincerely,
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.
While recently working on one of our clients DWI cases, we noticed something interesting: the client’s urine sample hadn’t been tested at the Minnesota Bureau of Criminal Apprehension, as is nearly every sample collected in Minnesota. Instead, the sample had been sent for analysis to the TriCounty Regional Forensics Laboratory in Anoka, Minnesota.
It didn’t take long to uncover a truly massive problem - this lab wasn’t reporting accurate test results. In fact, it was making huge mistakes.
As if there weren’t enough problems with urine testing, we discovered another error unique to this type of test. Under Minnesota law, a driver is per se intoxicated if either their blood alcohol concentration or their urine alcohol concentration is above .08. However, whenever a urine sample is tested, the final result needs to be multiplied by .67 to take into account the fact that alcohol levels are naturally higher in urine than in blood. (Therefore, if a urine test result comes back at a .11, the forensic lab must be multiply that by .67 to get the “actual” alcohol concentration, which would actually be .07!)
When the BCA reports a urine alcohol concentration, it automatically does this routine, elementary-school math before sending its results to the prosecutor. However, in this case TriCounty Regional Forensics Laboratory forgot to perform a simple math exercise, and reported our client’s alcohol concentration 50% higher than it should have been!
Because we constantly scrutinize all of the evidence that the State is bringing against our clients, we caught this error before it could permanently affect our client’s rights. However, seeing this mistake on one urine test makes us wonder . . . how many other urine tests were also reported incorrectly? How many people pled guilty to DWI based on a urine test that they just “assumed” was accurate?
The lesson to be learned? Never, ever fall for the myth that the scientists working for the State are infallible. Mistakes can and do happen - more often than anyone will admit - and not catching a mistake like this can mean the difference between an acquittal and going to jail.
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
WAM/lm
cc: Counsel of RecordiLiaison Counsel (via e-mail)
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, the manufacturer of the Intoxilyzer 5000 and Intoxilyzer 8000, is holding its 26th Annual Meeting of the Intoxilyzers Users Group in Providence, Rhode Island on August 15-19, 2010. Although I own my own Intoxilyzer 5000 and am certified to operate the breath test machine, I am not permitted to attend. CMI is guarding the program’s agenda, only saying “This conference promises to be an exciting one with many new things, courses, and information to share.”
CMI is notorious for its secretiveness. It has shunned its customers – numerous states including Arizona, Florida, Georgia, Michigan and Minnesota – by refusing to provide access to the software that runs its breath test machines. Only after we obtained a federal court order, was CMI forced to permit us access to its source code. (Our experts are currently in Kentucky at CMI’s headquarters examining the Intoxilyzer 5000 software).
Intoximeters, another breath testing company which produces the EC/IR II and the alco-sensor, also conceals the science behind its breath test machine. It is holding its 2010 Users Group Meeting in its home town September 12-15, 2010. Intoximeters program will include the “’Thomas Workman’ Update” and “Source Code Challenges”. Apparently it felt it was being to open, however, as it recently revised its program omitting the above and instead chose the more generic “Legal Challenges.”
It, too, however, will not permit me or defense experts to attend.
Under our government’s leadership, it’s not surprising breath test manufacturers are so secretive about their breath test machines, the science they use and the software that runs their machines. The Minnesota County Attorneys Association (MCAA) is one of those organizations that perpetuates the covert treatment of DWI law enforcement.
The MCAA describes itself on its internet page:
The Minnesota County Attorneys Association is an independent, voluntary organization of County Attorneys dedicated to improving the quality of justice in the State of Minnesota. The Association is a not-for-profit corporation governed by a Board of Directors elected annually by the membership.
The members of the Association are dedicated to the accomplishment of this Mission by developing consensus on legal and public policy issues of statewide significance to County Attorneys. The Mission will be implemented competently and professionally while adhering to the highest ethical standards of the legal profession.
The MCAA closely follows my work. On its home page, it tracks my issues including the consolidated source code case, urine testing cases (see “Matthys Order”), and obtains transcripts (see “Implied Consent Transcript Bank”) of my expert witnesses and case issues. It will not give me access to its indexed transcript data base.
MCAA’s clandestine treatment of DWIs is particularly troubling. Its annual DWI Program includes:
Initial contact, probable cause and preconditions to a test request
Testing and refusal issues
Right to counsel and additional testing issues
Tips from judges and prosecutors on how to proceed with your case
The impact of administrative rules
The program, entitled “Impaired Driving: New Laws, New Issues, New Decisions” will be held June 25, 2010 at the Minnesota Bureau of Criminal Apprehension in St. Paul.
To help satiate my thirst for knowledge, I thought it would be beneficial to attend. I registered and paid my fee. However, the MCAA told me that defense lawyers are not welcome at the continuing education seminar.
I was surprised given the fact that it advertised one of courses would include “Tips from judges … on how to proceed with your case.” I wonder which judges will present the (secret) tips and if they know the MCAA is precluding defense lawyers from hearing the inside information?
Should your government keep secrets? Maybe when it comes to matters of national security. But not when it comes to “science” that puts innocent people behind bars.
Almost every client that calls us for legal advice and representation will ask it at some point. Most clients who retain us will hear the question from their friends and family. The government and the media have done a great job of making the “science” of DWI prosecutions seem unbeatable.
Which always begs the question: is it even possible to beat a DWI charge?
The answer, our answer, and the correct answer, is always “YES!”
A good criminal defense attorney will help guide anyone through the hoops, traps and pitfalls that make up our complex DWI laws. A great defense attorney will have a proven track record to demonstrate their ability and desire to make sure that you get the best effort and the best outcome possible. But the truly top-notch defense attorneys are the ones who understand that the “science” surrounding DWI prosecutions is little more than smoke and mirrors - and like any illusion, once you see the “science” for what it really is, your attorney is in the best position to reveal how shaky the State’s case really is.
A recent situation that arose in Colorado highlights the fact that any test - blood, breath, or urine - can successfully be challenged in court by top-notch attorney. In Colorado, over 200 blood tests were found to have been horribly botched - some tests reported a blood alcohol concentration 40% higher than the actual concentration should have been! Everyone here at Ramsay Law Office shuddered a little bit at that statistic, but what really gets to us is that the crime lab still can’t explain how so many tests came back with such inaccurate results.
Many people convince themselves that, “if the State’s test says I was over the legal limit, I must have been over the legal limit.” I’m sure that the vast majority of all of the improperly analyzed samples in Colorado went unchallenged in court. And that is the only real way to lose a DWI case - to not examine the evidence, to take the State’s word at face value.
At Ramsay Law Office, we’ve won many “unbeatable” cases, and we’ve done it by staying current with the scientific literature and never taking the State’s evidence at face value. If you’ve been charged with a DWI, and the State has a blood, breath, or urine test up their sleeve, don’t buy into the hype. Contact Ramsay Law Office - we don’t buy into the hype either. We get results.
Last week we published our blog series demonstrating how independent testing and independent analysis of the state’s blood and urine samples may help drivers beat DWI urine or DUI blood tests. After we concluded the series, we ran into an interesting wrinkle when we sought to have two urine samples independently analyzed.
The prosecutor informed us the government had destroyed the urine samples!
I believe the state has a duty to retain such critical evidence until the case has concluded. It should not destroy any blood or urine test samples unless and until the driver has actual knowledge the state intends to destroy the sample and waives the right to examination.
In response, we amended our motions to suppress admission of the test results and to dismiss the DWI charges. We filed the following motions:
1) Dismissing the Complaint based on the State’s destruction of the evidence. Specifically, admission of the urine test report violates Defendant’s constitutional rights to Confrontation, pursuant to Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), because the state intentionally destroyed the evidence, thereby denying Defendant the opportunity to independently inspect, evaluate and test his alleged urine sample;
2) Dismissing the Complaint based on the State’s destruction of the evidence. Specifically, admission of the urine test report violates Defendant’s constitutional rights to Due Process, pursuant to California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528 (1984), because the state intentionally destroyed the evidence, thereby denying Defendant the opportunity to independently inspect, evaluate and test his alleged blood sample;
3) The State has violated the Minnesota Rules of Criminal Procedure and Defendant’s Due Process rights by failing to provide Defendant with his blood sample as part of his requested discovery;
4) The law of spoilation of evidence is inconsistent with the Minnesota Rules of Criminal Procedure and cannot be applied in light of the rights of Defendant to Due Process and Confrontation; and
5) Dismissing the charges against Defendant as the State’s destruction of Defendant’s urine sample impermissibly shifts the burden of persuasion onto Defendant for a key element of the offenses with which he is charged.
A judge had previously ruled in our favor when presented with these issues. In a DWI case we brought to jury last July, the judge had ordered the blood test suppressed because the state had destroyed the blood sample. We had challenged admissibility based our client’s right to confrontation, among other things.
In his order, the judge explained why due process required him to suppress the state’s evidence:
Due process requires that a criminal defendant have the same access to information as the State when the State offers the result of a scientific test. The State did not give Defendant an opportunity to stop destruction of this evidence. If the State offers into evidence the blood-test report, the State must also call the person who prepared the blood-test report, and a person who can testify as to the chain of custody. Without access to the blood sample, Sickmann is denied the right granted in the rules of discovery to reproduce the state's test results. The reproducibility of scientific test results is an important factor when considering the reliability of the test results.
The judge also explained why the Sixth Amendment’s Confrontation Clause requires suppression:
The BCA's policy of destroying the blood or urine sample, therefore, eliminates [Defendant]'s ability to reproduce the blood test results and limits the methods available to him to challenge the reliability of those results. The scope of the [Defendant]'s cross-examination of the witnesses who prepared the test report is unconstitutionally limited.
The Sixth Amendment's guarantee that an accused shall enjoy the right to be confronted by his accusers is vindicated only upon effective and adequate cross-examination of those witnesses. The BCA's policy of destroying the blood sample after a predetermined period of time renders [Defendant]'s opportunity to cross-examine the state's witnesses inadequate and ineffective. Because [Defendant]'s cross-examination of the witnesses who prepared the blood test report is inadequate and ineffective in light of his inability to reproduce the results, his rights under the Confrontation Clause are violated and this violation precludes admission of the blood test report.
Accordingly, this Court must conclude that at subsequent trial of this matter, the blood test report of the BCA is inadmissible.
We will see if other judges understand the constitution as Judge A.P.
Today we conclude our four part blog series on independent testing and analysis. In parts two and three we discussed how independent analysis of the state’s blood and urine samples revealed inaccurate BCA test results. Today our series concludes with our posting of the administration of independent testing. We describe a case litigated last month where our client’s independent blood test refuted the state’s breath test.
INACCURATE DWI BREATH TESTS
We have revealed numerous problems with Minnesota’s Intoxilyzer 5000 breath test machine in this blog and elsewhere. Yet the BCA continues to claim the breath test machine yields accurate, valid and reliable results. With a little foresight, leading to the administration of an independent blood test, we are able to demonstrate the inaccurate breath test results.
The Intoxilyzer 5000 is designed to retain a portion of the breath sample collected in an apparatus called a “tox trap”, a silicon device that attaches to a connection on the back of Intoxilyzer. After a subject has supplied a breath sample, the machine blows the sample out an ejection port, to which the the tox trap is affixed. The operator then seals the tox trap, keeping the air within the tox trap so that it can be independently analyzed in the future.
Although Minnesota breath test machines have this capability, the Minnesota Bureau of Criminal Apprehension (BCA) decided against using a tox trap to preserve breath samples. As a result, we are unable to obtain an independent analysis of a subject’s breath as we are able to do with blood and urine samples.
We don’t let the BCA’s decision to discard critical evidence prevent us from fully representing our clients. While we can’t independently analyze a breath sample, we are able to obtain an independently collected sample under Minn. Stat. sec. 169A.51, subd 7 (b). The statute states:
The person tested has the right to have someone of the person's own choosing administer a chemical test or tests in addition to any administered at the direction of a peace officer; provided, that the additional test sample on behalf of the person is obtained at the place where the person is in custody, after the test administered at the direction of a peace officer, and at no expense to the state.
Mark’s DWI Breath Test Case & Independent Blood Test
In a case I litigated last month, we introduced the results of my client’s independent blood test to demonstrate the breath test results were inaccurate. My client was arrested for DWI. He had called me before giving a breath test. During the “midnight call” I arranged for him to obtain an independent blood test. Mark submitted to the breath test which showed his alcohol concentration was .11, well above the legal limit. His independent blood test, administered two hours and 20 minutes later was .04.
The two test results cannot be reconciled.
The average burn off rate recognized by forensic scientist (including the Minnesota Bureau of Criminal Apprehension) is .015/hour. Multiplying .015 by 2 1/3, we had a total “burn off” of .035 during the time between the breath test and the blood test. Subtracting the burn off of .035 from .11, the breath test result should have been .075 at the time the blood was drawn – under the legal limit! The breath test result was very inaccurate.
Conversely, if we were to add the total burn off of .035 to the .04 blood test result, we would see that my client’s actual alcohol concentration by blood at the time of the administration of the breath test was .075!
We are well aware of Minnesota’s Intoxilyzer 5000 software problems. The problems deal with sampling, volume measurement and specificity. The BCA continues to insist the test is accurate. This demonstrates the Intoxilyzer 5000’s problems are well beyond source code issues, it does not provide accurate test results. Only by obtaining an independent blood test were we able to prove the breath test inaccurate.
This week we present our blog series about the value of obtaining independent tests and conducting independent analysis to reveal inaccuracies in government testing. This year alone our firm discovered cases where the Minnesota BCA has reported inaccurate DWI test results.
Yesterday, we told you how independent analysis of the state’s blood sample in a case last month revealed that it was inaccurate. The BCA reported our client’s blood alcohol concentration was over the legal limit of .08 and independent analysis by a local reputable lab showed it was actually .078 – under the legal limit.
Today our series continues with urine testing. We describe two separate cases from this year where the prosecutors agreed to dismiss charges as a result of our independent analysis of the state’s sample. In one of the cases, however, the results were actually higher than what the BCA reported.
INACCURATE DWI URINE TESTS
We have blogged extensively that urine testing is not generally accepted by the scientific community as a valid and reliable means of measuring impairment or determining the amount of alcohol in a person’s body. That is another topic. This blog posting addresses analyses of the samples.
When a urine sample is collected for DWI prosecution, the lab must ensure the evaluation of the sample conforms to those procedures necessary to ensure the test results are valid, accurate and reliable. It appears that the Minnesota BCA does not share this view.
Eric’s Urine Test Case
In January we tried Eric’s urine case to jury. Before trial we had the state’s urine sample analyzed by an independent lab. The Minnesota BCA had reported the urine alcohol concentration as more than .08. The independent test result was a .07, below the legal limit.
The information was sufficient to convince the prosecutor to dismiss the .08 charge. The key evidence in most DWI trials – the state’s DWI alcohol sample – became irrelevant. With the critical evidence removed from the case, we easily prevailed on the impaired charge and the jury acquitted Eric. See, First Not Guilty Verdict of 2010: Hennepin County Jury Acquits Man of DWI Charges. I don’t know if the outcome would have been the same without the independent analysis of Eric’s urine sample.
James’ Urine Test Case
While we are unaware of the precise reason for the discrepancy between test results in Eric’s case, we are aware the BCA procedures are lacking as they do not ensure the test results are scientifically valid, reliable or inaccurate. For example, glucose – a sugar found in one’s urine – may ferment, artificially increasing an alcohol concentration test result. Reputable labs promulgate procedures to check for glucose and avoid reporting tests that may be contaminated with the sugar.
Nationally recognized forensic scientis, Dr. Staubus, recently provided me with the State of Wisconsin’s procedures it implemented to ensure test samples are not contaminated with glucose. Wisconsin, unlike Minnesota, employs significant requirements to ensure glucose does not interfere with valid and reliable test results. They include lab technicians to:
1. Check all ethanol-positive urine specimens for the presence of glucose with a Keto-diastix reagent strip. Record the Keto-diastix result on the sample submission form (implied consent specimens) or internal tracking form (MVD, death investigation specimens).
2. If a urine specimen is glucose-positive, store a room temperature for at least two days and re-analyze for ethanol concentration. If the ethanol concentration has increased by 5% or more, the ethanol result is not reported and an appropriate comment is placed on the report.
The BCA claims that because each urine kit contains sodium fluoride, it need not promulgate procedures for collection, storage and transportation of urine samples to prevent fermentation. For the same reason, it need not promulgate procedures to check for glucose.
We proved the BCA wrong. James was arrested for DWI and given a urine test. The BCA reported the alcohol result as .16. James was adamant the result could not be correct. We sent the sample to an independent lab to be retested. The independent test result was .18. The urine alcohol concentration had increased by more than 12 percent! As I explained in a previous blog post, More Issues with DWI Urine Testing: Fermentation, we demonstrated that fermentation can and does occur. Once we provided the prosecutor documentation of our independent analysis, he dismissed all the DWI charges.
In both Eric’s and James’ cases, we were able to prove the state’s tests results were inaccurate due to independent analysis of the state’s samples. We were able get the .08 DWI charges dismissed and prevailed in both cases.
Tomorrow in the final post of our four part series, we address a different method of checking the accuracy of the state’s alcohol test. Unlike the previous posts where we covered independent analysis of the state’s samples, we will discuss how administering an independent test at the time of arrest may provide valuable information in the defense of a DWI breath test case.
Yesterday, we blogged about the serious deficiencies of our nation’s forensic science system. We noted that although Minnesota’s crime lab has escaped wide spread scandal (notwithstanding the source code debacle), anecdotal evidence has emerged indicating the Bureau of Criminal Apprehension (BCA) is not immune from shoddy work.
Using independent analysis and independent testing, our firm discovered specific cases this year where the Minnesota BCA has reported inaccurate Driving While Impaired (DWI) test results. The BCA’s errors apply to all three DWI alcohol tests – blood, breath and urine. Today, we report on an erroneous BCA blood test result.
INACCURATE DWI BLOOD TESTS
Our client (“JM”) was arrested in February, 2010 for suspicion of driving while intoxicated in Ramsey County, Minnesota. The police asked JM to submit to a blood test and she complied. A paramedic withdrew the blood at the police station and mailed the blood sample to the Minnesota BCA for analysis. The BCA reported JM’s alcohol concentration to be .08, over the legal limit. The state revoked JM’s license to drive and charged her with Fourth Degree DWI.
We believe that good DWI defense attorneys never assume that government tests results are accurate. To verify JM’s BCA test results my firm had her blood retested by a reputable, independent lab. The results were astounding. The independent lab’s analysis revealed the BCA test results were inaccurate. The independent lab results were .078 – below the legal limit!
We have already had JM’s driver’s license reinstated and the incident removed from her driving record. With the benefit of the independent lab results of JM’s blood sample, I fully expect we will be successful in the criminal DWI case as well.
Blood testing is widely recognized as the “gold standard” for DWI alcohol testing. But a test is only as good as those who conduct the testing and only as reliable as the procedures they follow, including reporting the uncertainty in the test results (for an excellent article about metrology and reporting uncertainty, see The Truth About Forensic Science by Pennsylvania attorney, Justin McShane).
When investigating a blood test case, DWI lawyers should obtain not only the final lab reports, but also such information as all Quality Control tests used; all Quality Control tests performed on the test kit; any and all records relating to the test results; Chain of Custody records; the actual Gas Chromatograms; and Proficiency Records or results of proficiency tests for the BCA lab and the analyst who conducted the test.
Finally, attorneys should consider having the government’s DWI blood test results independently evaluated. In many cases, your clients may gain their freedom through independence.
Tomorrow in part three of our series on independent testing and analysis: DWI urine test results.
Our society has a blind faith in government forensic test results. The public’s confidence is particularly fervent in drunken driving cases. This confidence in government tests, however, is unfounded.
In 2009, the National Research Council reported serious deficiencies in the nation's forensic science system and called for major reforms and new research. It discovered that mandatory certification programs for forensic scientists were lacking, as were strong standards and protocols for analyzing and reporting on evidence. It found a scarcity of peer-reviewed studies establishing the scientific bases and reliability of many forensic methods.
Media reports provide support for the 2009 study. Major crime labs around the country have been exposed for unscrupulous behavior, resulting in erroneous, untrustworthy forensic testing. For example:
In Washington, a judge found “ethical lapses, systemic inaccuracy, negligence and violations of scientific principles” in the state’s crime lab and threw out hundreds of breath tests.
The mayor completely shut down the Detroit crime lab after voluminous errors were discovered.
Colorado Springs metro crime lab’s blood alcohol results were just plain wrong.
San Francisco’s crime lab is in the midst of a scandal which jeopardizes “thousands of cases.”
Minnesota’s crime lab, the Bureau of Criminal Apprehension (BCA), has thus far escaped wide spread scandal (notwithstanding the source code debacle). Still, it is not immune. Anecdotal evidence has emerged, signaling similar problems exist in Minnesota.
This year, our firm has discovered the Minnesota BCA has reported inaccurate test results in specific cases with all three of its DWI alcohol tests: blood, breath and urine. In the following three parts of our series, we will provide information about these cases demonstrating that individual drivers can help protect themselves through both administering independent tests and performing independent analysis of the state’s DWI alcohol samples.
Part 2: BCA Reports Inaccurate Blood Test Results
Part 3: BCA Reports Inaccurate Urine Test Results
Part 4: Intoxilyzer 5000’s Inaccurate Breath Test Results
Minnesota uses three types of chemical test to investigate DWI cases. There are breath tests on the Intoxilyzer 5000EN. Then Minnesota has its unique take on urine testing. The third type of test is the blood test; a type of test used in nearly every state for DWI prosecutions and considered the “gold standard” with respect to value as evidence.
Despite the massive problems with the Intoxilyzer, and the overwhelming criticism of its urine testing regime, the Minnesota Legislature passed a bill and signed into law by Governor Pawlenty, seriously undermining its last, best chance at equitably enforcing our DWI laws. Starting July 1, 2010, it appears that almost anyone a police officer chooses can draw a driver’s blood - not just registered nurses, EMTs, and the other specifically listed persons currently authorized by statute. The law protects them from civil suit if they were to cause infection or other injury.
This is troubling for numerous reasons, the least of which is the fact that blood draws, if improperly performed, can be painful, traumatic, and can transfer infectious diseases. Moreover, the current law is likely unconstitutional.
Currently, blood tests for evidentiary purposes are deemed constitutional - but not by much. In the Supreme Court case that first authorized these types of blood draws, the Court clearly explained that such a test is only reasonable where it is “taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions that would arise is a search . . . were made by other than medical personnel or in other than a medical environment.”
Police officers with limited training have routinely drawn blood in Cottage Grove, Woodbury and a few other jurisdictions. We expect that to expand. Soon, that Supreme Court’s warning 45 years ago will be ignored, at least in Minnesota. The Legislature just legalized a practice that has opened the door to roadside blood tests by officers. Instead of blood drawn “in a hospital environment according to accepted medical practices,” we fully expect cops to routinely suck drivers’ blood on the hood of a filthy squad car at the side of the road. Rest assured, we plan on fighting this law at the first available opportunity.
At Ramsay Results, part of our job is to keep current on the latest changes in the law, so that we can effectively represent our clients. If you’re arrested for a DWI - especially if the arrest involves a blood test - contact Ramsay Law Firm immediately.
We have previously blogged about the unscientific nature of Minnesota’s urine testing regimen. Despite some adverse court decisions, we continue to find ways to demonstrate our clients’ innocence. Here is the story of one case where we revealed this month another reason why urine testing should not be used in DWI cases.
My client (“James”) was arrested for DWI and given a urine test. The result was .16. James, a former peace officer, was adamant the result was wrong. During my initial interview, I learned that the container into which James deposited his urine sample was empty before he filled it.
I explained to James that Minnesota’s DWI urine kits are to include a white powder -- 1 gm of Sodium Fluoride. The purpose of the chemical is to prevent any sugars present in the urine from being converted to ethanol in-vitro after sampling by fermentation. Fermentation is likely to occur without the powder, particularly when the sample goes unrefrigerated.
One way to determine whether fermentation occurred is to retest the sample by an independent lab. Fermentation is likely if the independent test reveals a higher alcohol concentration than the state’s initial test result. James paid to have the sample retested. The result: .18
The urine alcohol concentration had increased by 12 ½ percent!
We retained the services of a reputable forensic scientist for his opinion. After reviewing the police and toxicology reports he concluded:
1. The urine alcohol level is clearly rising in this sample going from a .16 to a .18 on retest.
2. Fermentation is the cause of this alcohol increase.
3. Fermentation proceeds at room temperature and this sample spends 4+ days at ambient temperature before it is refrigerated at [the Bureau of Criminal Apprehension (BCA)]. It spends unknown, but likely several days, at room temperature during BCA analysis in which it is goes up in alcohol level.
4. The client reports no powder in the kit which would significantly accelerate fermentation.
5. The BCA did not test for glucose or preservative in defendant’s sample.
The clear interpretation of the data is a rising alcohol level. That makes this test and the sample unreliable to show the actual level of defendant’s urine at the time the sample was collected.
The Urine alcohol level is not related to intoxication so the sample is of no value to the issue of intoxication.
My client was right!
This demonstrates that urine testing continues to be an unreliable method of determining the alcohol concentration of a person arrested and charged with DWI. If you have been arrested, call the 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.
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.
Recently, the Superintendent of the Minnesota Bureau of Criminal Apprehension sent a “fluff piece” to the Minneapolis Star Tribune titled, “Some Love for Forensic Scientists” touting why everyone should have “confidence in the quality of the BCA scientists’ work.”
The whole theme of this article can be summed up in one of the first sentences, where the Superintendent states, “without the painstaking work performed by forensic scientists . . . I'm confident justice would be served far less often in real life.”
This statement baffles me, and should baffle you too. Where was this confident sense of justice when the Intoxilyzer 5000 was failing? Are we honestly expected to have confidence in an agency that knewfor years that the Intoxilyzer was experiencing critical flaws, and boldly refused to fix those errors because of fears that fixing their mistakes would undermine the aura of perfection the BCA attempted to create around the Intoxilyzer? That’s neither justice nor good science.
And what about the BCA’s DWI urine testing regime? Minnesota is probably the only state to actually use first void testing regularly for DWI prosecutions. In fact, even other countries, those with far stricter DWI laws, won’t use urine testing for DWI prosecutions.
When a scientific agency is the only one doing something a particular way, it can only mean one of two things – either they are on the cutting edge of science, or they’re stubbornly clinging to science that has already been clearly and unequivocally refuted. I can tell you for a fact that the BCA’s treatment of urine testing isn’t cutting edge science.
What we have here is an agency that claims, in the newspapers, to be using scientific principles to ensure justice in the courtroom. What every Minnesotan needs to know, however, is that those scientific principles are typically ignored by the BCA for purely political reasons, and that always leads to injustice.
A truly independent scientific agency would not refuse to fix its Intoxilyzers for fear of looking foolish. An agency dedicated to sound science and fair convictions would not cling to an outdated and discredited method of urine testing to convict Minnesotan drivers of DWI.
Maybe a better title for that article would have been, “Science Only When it Suits Us.”
If you or your attorney have bought into the belief that the scientific evidence presented by the Minnesota BCA is unassailable, you’re wrong. We fight this evidence every day - and win. If you’re being charged with a crime based on supposedly scientific evidence, call the Ramsay Law Firm. We don’t believe the hype – we get results.
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.
Judge Abrams:
When I began writing this blog last month, Ramsey and Washington Counties seemed to be of the only metro-area counties which had yet to consolidate.
Ramsey County’s chief judge had written to the Minnesota Supreme Court requesting consolidation on a state wide basis, but the request was denied for procedural reasons.
This week, Minnesota Lawyer reported that Ramsey County has a consolidation plan in place.
Ramsey County is following a kind of hybrid model of consolidation, Ramsey County District Court Chief Judge Kathleen Gearin said. Cases involving challenges to the source code will be assigned to one judge, but only for the purpose of resolving the source code issue. The cases will then be assigned to different judges for trial. Cases not involving source code issues must proceed, she added. ... Gearin said that there are discussions ongoing about multi-county proceedings, but Ramsey doesn’t want to wait while those talks run their course.
I have yet to see any orders reflecting this.
Judge Gearin:
The last Ramsey County order I received was before Thanksgiving from Ramsey CountyJudge Marrinan. The order addresses the timing and sequence of expert review of the breath test machine’s software.
The order states:
1. Defendant shall receive access to the source code from CMI pursuant to the instructions and parameters set forth in State v. CMI.
2. Consistent with the Permanent Injunction at Paragraph 3(b) of the above, the Court has executed a Protective Order in this matter, which is attached.
3. Within 90 days after execution of the NDA, Defendant's expert shall report his or her findings to Defendant's counsel, who shall forward a copy to the Court and to counsel for the State within three working days after receipt.
4. The State and CMI shall then have 90 days in which to have their experts review the report of defendant's expert, review the source code, and submit their reports.
5. The State and CMI, shall forward copies of their experts reports to the court and Defendant's counsel within three working days after receipt.
6. Defendant shall appear for a JT in this matter on 7/26/10 at 8:45 am in Maplewood Courtroom A.
While the Ramsey County order is designed to keep the source code battle moving, it is silent regarding issues that already have arisen. For example, CMI, the Intoxilyzer 5000 manufacturer, continues to thwart the Minnesota source code coalition’s experts’ review of the software. As a result, we have been unable to begin analyzing the code which will certainly delay our experts’ report. What if we are unable to complete the report in the time they required?
Minnesota DWI Defense Blog will continue to update its readers as information becomes available on the Intoxilyzer 5000 Source Code battle.
Many consider the test refusal law to be unbeatable. The law is not straightforward and is difficult to understand. A lawyer well versed in the law, science and facts of your case can beat the crime of test refusal.
The law as it exists today came about to close a loophole in Minnesota’s DWI law. Decades ago, people refused to submit alcohol testing which limited the evidence available to the state. Then, the state passed the "Implied Consent Law." Under the original law, upon refusing to test the state would revoke a person’s license for one year. This caused most people to submit to testing. To increase those numbers, the state made it a crime to refuse testing under the Minnesota Implied Consent Act. This crime was treated the same as taking the test and failing. Later, when the state amended the criminal DWI law making the consequences more severe for those over .20, many drivers began to refuse to take the test rather than risk facing enhanced charges for a high alcohol test result.
Once drivers became more aware of the enhanced charges for a .20 or greater, more drivers again began refusing DWI tests rather than risk facing the more serious consequences. The state closed that loophole earlier this decade by making test refusal a crime more serious than merely failing a DWI alcohol test over .08 or more.
As a result of the piecemeal amendments to Minnesota’s Impaired Driving Laws, the laws have become an unconstitutional, knotted mess.
The refusal provision states:
“It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation of license).” Minn. Stat. § 169A.20, subd. 2 (2008).Under the law, the refusal crime is more serious than taking and failing the test.
Is Minnesota’s DWI Test Refusal Law Constitutional?
Minnesota is one of fifteen states that make it a crime for a driver to refuse to submit to blood, urine or breath testing after being arrested for a DWI.The rationale behind the criminal law is obvious: to coerce drivers into providing an alcohol test to increase the likelihood of conviction.
I believe the law is unconstitutional as it compels citizens to waive their right to warrantless searches and seizure.I argued this before the Minnesota Supreme Court last year, but the Court sidestepped the issue in State v. Netland.The court left undecided one question, as articulated by the dissent.
Minnesota Intoxilyzer 5000: Using Science to Beat a Test Refusal
Fortunately, DWI lawyers who are particularly skilled and knowledgeable about Minnesota’s Implied Consent DWI law may be able to beat a DWI test refusal charge when the driver submits to the Intoxilyzer 5000 breath test.
The local twin cities media has reported on how I’ve exposed flaws in the breath test software causing the Intoxilyzer 5000 to erroneously deem a person to have refused to submit to a breath test.The documents I’ve discovered and the testimony I’ve elicited have resulted in a federal judge ordering CMI to disclose the source code to Minnesota defense attorneys.
A driver is not likely to beat a breath test refusal charge without a Minnesota lawyer who knows the scientific flaws of the Intoxilyzer 5000, the issues involving the source code and how the state’s experts will testify in court.
Blood Tests and Urine Tests: Using the DWI Law’s Provisions to Beat the Refusal Law
A client hired me last month in a blood test refusal case.I thought the facts from the case can help explain how to beat a test refusal to test charge.
My client was stopped by police and arrested on suspicion of driving while intoxicated.The officer took her to a hospital for a blood test.The officer asked my client if she would submit to a blood test and my client agreed.
Here are relevant facts from the officer’s police report:
I began to read the Implied Consent document to “Kim.” Kim agreed to take a blood test.An RN assisted me with the blood draw.I opened the blood kit and began filling out the paper work. Kim was physically pulling away from the nurse when she put the tourniquet on her arm. Kim said she didn't like needles. I explained to Kim that this was a registered nurse and she will be fine.Kim would not let the nurse touch her.
Kim would physically pull away every time the nurse would touch her arm. I explained to Kim that she already agreed to take the blood test and that if she did not allow the nurse to take blood that it will be considered a refusal.
Another nurse was called to assist. The nurse said she will hold her arm straight for her while the other nurse inserts the needle. Kim lifted her feet off the floor almost kicking the nurse in the stomach, RN told Kim that the other nurse was pregnant and that she needed to settle down. Kim said “just do it.”RN attempted again to draw blood and Kim pulled away swinging her arms. RN said that she would attempt one more time because she was making it dangerous with the needle. Kim again physically pulled away from the nurse, RN said she would not draw blood because she was physically uncooperative and it was dangerous.Due to Kim’s aggressive behavior all testing was stopped.
Kim refused to test.
Does this violate Minnesota’s Implied Consent/DWI Test refusal law?No.
Under the Statute, “action may be taken against a person who refuses to take a blood test only if an alternative test was offered and action may be taken against a person who refuses to take a urine test only if an alternative test was offered.Minn. Stat. § 169A.51, subd. 3 (emphasis added).
It is clear that the legislature never intended for a person to be subject to criminal charges simply for refusing a blood test or urine test without being offered an alternative.
In this example, although Kim said she would submit to a blood test, she prevented the RN from withdrawing blood and she refused the test.However, the officer should have offered Kim the opportunity to submit to a urine test before declaring, “Kim refused to test.”
Because no action can be taken against a person for refusing to submit to a blood test unless an alternative test is offered, the judge should dismiss the test refusal charge.As a footnote, the state took my client’s car in this very real case.Once the judge dismisses the refusal charge the state will be forced to return my client’s car to her.
If you have been charged with DWI, DUI or Refusal to Submit to Testing, call Chuck Ramsay immediately.
We’ve previously posted about Urine Testing and Frye-Mack hearings. Today, a reader asked “what is a Frye-Mack hearing, and should my attorney be asking for one too?”
The Constitution’s Guarantee of Right to Trial by Jury
Whenever a prosecutor charges a person with a crime that could result in jail, the Constitution provides that person with numerous constitutional rights. One of those sacred, longstanding rights is the right to a trial.
At its most basic, a trial is nothing more than a fact finding process. That means that everyone charged with a crime has the right to have a jury of his or her peers listen to the evidence and determine, based solely on that evidence, whether or not the State has proven that the “defendant” committed a crime beyond a reasonable doubt.
How Good Defense Lawyers Are Worth Their Value
Good Lawyers know how and what types of evidence can be presented to that jury.Great lawyers know how to keep out evidence that should not be admitted at trial.
Anyone who has watched Law and Order realizes that there are a variety of grounds for an attorney to get evidence suppressed. Usually, on TV, it’s because the evidence was obtained by police officers that broke the law.
However, in real life, it’s far more likely that an attorney will be attempting to suppress evidence because it’s simply not relevant, or because it is so unreliable that it would do nothing more than confuse the jury. Sometimes, it’s because the evidence looks good at first glance, but is really nothing more than smoke and mirrors. And this is where the phrase Frye-Mack comes into play.
A Frye-Mack hearing is an evidentiary hearing, held before any trial takes place, and it is used to determine if “scientific evidence” can be presented against an accused defendant. It’s called a Frye-Mack hearing in Minnesota based upon two reported cases that outlined the procedure; United States v. Frye, a Washington D.C. case from the 1920's that dealt with a type of lie detector test, and State v. Mack, a Minnesota case from the 1980's that dealt with “hypnosis” testimony.
As a result of these two cases (and many others that followed), Minnesota has two very specific criteria that need to be met before the State can introduce scientific evidence to a jury. These criteria are aimed at preventing juries from being presented with “junk science.”
Frye-Mack Prong 1:Has the test gained general acceptance in the scientific community?
Under what is called the “first prong” of Frye-Mack analysis, the State must prove that the scientific technique that is being used has gained general acceptance in the scientific community. As a fun example, we’ll use phrenology, or the belief that the personality traits of a person can be derived from the shape of that person’s skull.
In our example, before a jury could find someone guilty of murder based on phrenological evidence (let’s say the State can prove that the defendant has the dreaded “murder bump” on his forehead) the State would have to show that phrenology is a scientific technique that is generally accepted in the scientific community. There would be a Frye-Mack hearing, and the State would fly in experts from around the world to testify about how everyone uses and respects phrenology, why phrenology is such good science, and maybe even why the specific bumps on their own heads prove that they are credible witnesses. If, after all the testimony, the judge is convinced that phrenology is generally accepted in the scientific community, the State has succeeded on “prong one” of the Frye-Mack test.
Frye-Mack Prong 2:Did they do the test properly?
Having successfully met its burden on prong one, the State would then have to meet its burden on “prong two” of the Frye-Mack test. This second prong means that the State must not only show that a technique is generally accepted in the scientific community, but also that the laboratory conducting the tests in the individual case complied with appropriate standards and controls.
In our example, the State would meet its burden under the second prong of the Frye-Mack tests by presenting more experts that could show how phrenology typically works (probably with models of human skulls and demonstrations on how to use weird measuring devices). The State would then have to show that, in the case of our alleged murderer, those accepted techniques were used to conclude that yes, our alleged murderer does have the “murder bump” on his forehead, so of course he must be guilty.
Of course, in a real courtroom, a jury would never hear evidence of phrenology. That’s why Minnesota uses the Frye-Mack standard - to prevent the jury from even being exposed to junk science. In our example, I doubt a prosecutor could find one reliable expert that could sit in court and say, with a straight face, that the scientific community generally agrees that phrenology is valid science. Without proof of general acceptance in the scientific community, the State fails to meet its burden under prong one of Frye-Mack analysis and the evidence is excluded as junk science. We can all breathe a small sigh of relief knowing that the lumps on our head won’t lead to criminal charges in the near future.
However, the two prongs of the Frye-Mack test apply not just to phrenology, but every type of -ology, up to and including every type of mechanical or physical scientific test. Both prongs of the test, general acceptance and foundational reliability, must be met before scientific evidence can be presented to a jury.
DNA evidence, for example, has already been proven to be generally accepted at a Frye-Mack hearing, and juries now see this type of evidence every day. Polygraphs (lie detectors), on the other hand, have not been shown to have gained general acceptance in the scientific community, and until that happens in Minnesota, the results of polygraph tests cannot be presented to a jury.
The list of types of scientific evidence that has undergone the scrutiny of the Frye-Mack test is long, but every scientific technique that has been analyzed has one thing in common - the State had its chance to prove that the technique had gained general acceptance in the scientific community, and either succeeded or failed in its showing.
This, in a nutshell, is what a Frye-Mack hearing is - a special evidentiary safeguard that is in place to make absolutely sure that a person can’t be proven guilty based on science, unless and until that type of science has gained general acceptance in the scientific community.
When it comes to DWI’s, especially DWI’s involving urine tests, one thing is crystal clear: testing urine to determine a precise alcohol concentration at a given point in time has never been shown, via a Frye-Mack hearing, to be a technique that is generally accepted in the scientific community. The sad reality is that there are volumes of evidence demonstrating that it is not generally accepted by any good scientists, and that Minnesota is unique in that it still presents juries with urine test results in DWI cases. Thus, good attorneys who fully understand the rules of evidence will stand up and demand that a Frye-Mack hearing be held whenever the State attempts to use “junk science” like urine tests against their clients.
Every Driver Charged With A DWI by Urine Should File A Frye-Mack Motion.
Although the Minnesota Court of Appeals did not agree with us that Frye applies to urine cases, we are appealing to the Minnesota Supreme Court.In the past, Judges have ruled Urine Does not Pass the Frye Test. I expect the Minnesota Supreme Court to do the same.
In a cruel, ironic twist, a Minnesota Court of Appeals ruling today makes the least scientific alcohol test the most unassailable. In Schroeder v. Comm’r of Pub. Safety, A09-238 (Minn. Ct. App. Dec. 15, 2009), the court rejected a driver’s claim that urine testing is not a practice that is generally accepted in the scientific community as a valid and reliable method of determining alcohol concentration.
Minnesota uses three types of DWI alcohol testing methods: blood, breath and urine. Blood is widely recognized as the most reliable. Even breath tests, which suffer from some well known problems, are used around the world. However, most states do not use urine testing at all to determine a specific level of alcohol concentration.
One district court who tackled this issue head on had some choice words to say about this type of urine testing. The Honorable Judge Thuet, in the case of Carrell v. Comm’r of Pub. Safety, said:
“[T]he continued use of a testing procedure which experts agree may not measure the level of alcohol concentration, and thus intoxication of a driver at the time it is administered, and which the state's witness admitted may yield results that do not correlate with blood tests performed at the same time, constitutes an absurd result which the Legislature could not possibly have intended, especially given the stated goal of enhancing safety by removing intoxicated drivers from the roads. In light of this, the Court is compelled to rescind the revocation of the Petitioner's driving privileges.
Despite the opinions of some Minnesota judges and almost the entire scientific community, the court of appeals rejected our demand for a Frye-Mack hearing (which would require the State to show that urine testing is generally accepted in the scientific community). Instead, the court implicitly adopts the Daubert standard (a standard used in other jurisdictions – ironically, those that don’t even use urine testing – that allows judges to simply take judicial notice of reliability of urine testing). By ignoring our Frye-Mack request, the court is attempting to make the presumption that urine testing is reliable irrefutable.
To understand just how troubling this ruling is requires a brief explanation of the standard that should have been applied by the Schroeder panel (the Frye-Mack standard) versus the standard that was actually applied (the Daubert standard) and why this is a dangerous precedent for the entire state of Minnesota.
Minnesota’s Frye-Mack standard has been steadily evolving since the early 20th century, and by the 1980's the Minnesota Supreme Court summarized the test in State v. Mack, 292 N.W.2d 764, 768 (Minn.1980), by stating that, “the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where experts in the field widely share the view that the results are scientifically reliable as accurate.”
The Supreme Court summed up its holding in State v. Mack two decades later by stating that the ultimate purpose of determining the admissibility of mechanical or scientific evidence is to ensure that, “the particular evidence must have a foundation that is scientifically reliable.” State v. Roman Nose, 649 N.W.2d 815, 818 (Minn. 2002).
The Supreme Court then carefully and definitively created a two-pronged standard that must be used to determine if a particular piece of mechanical or scientific evidence has a foundation that is scientifically reliable. Id. Concisely stated, the Court held that, “a novel scientific technique that produces evidence to be admitted at trial must be shown to be generally accepted within the relevant scientific community, and second, the particular evidence derived from the technique and used in an individual case must have a foundation that is scientifically reliable. Id. at 818-819 (citing Goebv. Tharaldson, 615 N.W.2d 800, 810 (Minn.2000) [reaffirming adherence to Frye-Mack standard after Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)]).
Unfortunately, even a cursory reading of the Schroeder opinion shows that, rather than follow the Supreme Court’s mandate in the seminal Frye-Mack case of State v. Roman Nose, the Court of Appeals instead chose to utilize the Daubert standard for admitting scientific evidence. This, despite the fact that Minnesota has not adopted the Daubert standard, because it is less rigorous than the Frye-Mack standard. State v. Traylor, 656 N.W.2d 885, 891 (Minn.2003). This, despite the fact that one of the judges on the Schroeder panel, when confronted with a specific request to use the Daubert standard instead of the Frye-Mack standard, held that “[T]he task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court.”Yang v. State, 2008 WL 1972856 (Minn.App. 2008) (citing Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn.App.1987), review denied (Minn. 18 Dec. 1987).
The Schroeder panel started its cursory two-paragraph analysis by accurately stating that, “[t]he Frye-Mack test is aimed at reliability.”Schroeder at 5. This is a fairly close approximation of the Supreme Court’s summation of Frye-Mack in the Roman Nose case, cited supra in this post.
What the Schroeder panel did next, however, was to eviscerate the standard two-prong Frye-Mack analysis and instead fall back upon the rejected Daubert standard. After reciting the fact that Frye-Mack is indeed concerned with “reliability,” the panel chose to ignore the fact that Frye-Mack has established a clear and specific procedure for determining that “reliability.” Instead, the Panel simply held, without analysis, that “reliability” as a general concept had already been established by two Court of Appeals cases, Genung v. Comm’r of Pub. Safety, 589 N.W.2d 311 (Minn. App. 1999) and Hayesv. Comm’r of Pub. Safety, 773 N.W.2d 134 (Minn. App. 2009), pet. for review filed (Minn. Nov. 6, 2009). This appellate determination that, nothwithstanding the views of the scientific community, urine testing has mystically become reliable science by judicial fiat is precisely what Minnesota’s Frye-Mack regime is designed to avoid. Neither of the two cases cited by the Schroeder panel dealt with whether or not the testing method at issue had been proven to be “generally accepted in the scientific community,” the required first-prong burden that applies under Frye-Mack. Judicial fiat, not hard science, now appears to be the new test that applies to scientific evidence in Minnesota.
What is so troubling about this sudden development is that the Supreme Court has gone to great, detailed length to carefully explain exactly what type of analysis is required under prong one of Frye-Mack . . . and, as if able to predict the future, the Supreme Court even managed to explicitly reject the approach taken by the Schroeder panel.
Rather than paraphrase or run the risk of misinterpreting the plain language of the Minnesota Supreme Court, a few direct quotations are all that is necessary to demonstrate that the Court of Appeals is attempting to undermine the entire appellate process. The first quote comes from State v. Roman Nose, and explains why the Schroeder panel’s simple and misguided reliance on prior cases (where the issue of general acceptance in the scientific community was not at issue, much less litigated) is improper: The Court stated:
“[T]he issue of whether a technique is generally accepted within the relevant scientific community is best determined by evidentiary hearing. See Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn. 2000). There was no evidentiary hearing on general acceptance in this case and, contrary to the dissent's argument, hearings before other district courts will not substitute for the evidentiary hearing required here. Without an evidentiary hearing on the views of the relevant scientific community, trial and appellate judges become scientists, an approach we clearly rejected in Goeb. 615 N.W.2d at 813-14. State v. Roman Nose, 649 N.W.2d 815, 819, fn.3 (Minn. 2002)”
What immediately comes to mind is that the Schroeder Panel is indeed viewing itself as “amateur scientists” despite all warnings to the contrary by the Supreme Court. Relying on Hayes (where defense experts were actually precluded from testifying) and Genung (where the prosecution did not even present expert testimony, and where the defendant did not even contest the foundation for the urine test) simply cannot comply with the demand to hold an “evidentiary hearing on the views of the relevant scientific community.” Thus, we have a new breed of judge-scientist, a dangerous breed that the Supreme Court has warned the bar about since the dawn of the new millennium.
This type of logic - effectively using the doctrine of “judicial notice” to find that a scientific technique is indeed generally accepted in the scientific community - was shot down by the Roman Nose court years before it was utilized by the Court of Appeals. The Supreme Court in Roman Nose took the time to state clearly:
“The dissent argues that we should take “judicial notice” of the inherent reliability of the PCR-STR method of testing DNA unless something in the record indicates a reason to depart from the findings of other jurisdictions. But that is not the procedure we have established for determining the admissibility of scientific evidence. Moreover, there is an inadequate record to support taking judicial notice of the general acceptance of the PCR-STR method because appellant's request for a hearing on the issue was denied by the trial court.”State v. Roman Nose, 649 N.W.2d 815, 823, fn 9 (Minn.,2002)
As if the above quotations did not make the need for an evidentiary hearing clear enough, and the Supreme Court felt obligated to clearly explain to the lower courts how to conduct Frye-Makc analysis, the opinion in Roman Nose further elaborated on the need for an evidentiary hearing. Again, this is a hearing where the specific issue presented was whether or not a mechanical or scientific technique is generally accepted in the relevant scientific community. The Court repeated that:
“It is not enough for us to believe the test has gained general acceptance in the relevant scientific community. The state must establish that it has gained general acceptance, and it must do so by evidentiary hearing.”State v. Roman Nose, 649 N.W.2d 815, 820, fn.5 (Minn. 2002)”
In the case of Schroeder v. Comm’r of Pub. Safety, the Appellant was asking for nothing more than what the Supreme Court says is absolutely necessary - an evidentiary hearing. Appellant merely wanted the district court to compel the Commissioner to prove, once and only once, one specific proposition. And that proposition came directly from the Supreme Court: Is urine testing, as practiced by Minnesota, a mechanical or scientific technique that has gained general acceptance in the scientific community?” This question was never raised in Genung. It was never raised in Hayes. It was never ruled on by either court. For the Schroeder panel to so callously disregard the Supreme Court’s expectation that Frye-Mack issues will be resolved via nothing other than an evidentiary hearing is a dangerous precedent indeed.
By eliminating the need for an evidentiary proponent to prove general acceptance of a technique, and replacing this test with the nebulous, impossible to define threshold of bald, “reliability,” the Schroeder panel has set dangerous precedent and has demonstrated exactly why Minnesotans do not want their judges to act as scientists.
We are continuing to fight the use of bad science to ruin people’s lives. Let’s hope the Minnesota Supreme Court accepts review and overturns the court of appeals absurd rulings.
Hennepin County consolidated 102 DWI breath test cases. Today it held a hearing at which the attorneys, prosecutors and all 102 defendants were required to attend. The theory was that the prosecutors were going to offer deals to get the cases settled.
Someone forgot to tell the prosecutors.
Although some cases may eventually get resolved, it seemed few, if any cases, settled today. Instead, we learned:
·Prosecutors would not object to consolidation on a state wide basis, but have yet to file a motion to do so.
·Prosecutors have not looked into retaining an expert to analyze the source code, instead they will use the expert retained by the Attorney General on civil cases.
·Prosecutors do not want their expert to begin work until after the defense has concluded its work.
·Prosecutors believe it is best to set a “tracking date” to move things along.
·The Source Code Coalition requested consolidating HennepinCounty cases with the First Judicial District. This would save judicial resources as well as the resources of its municipalities.
The next date was set for June 1, 2010.
Judge Abrams has done an excellent job coordinating the 700+ cases in the First Judicial District and has issued a strict scheduling order, with a trial date of May 10, 2010. Trial is expected to take three weeks.
Is it a coincidence that HennepinCounty scheduled the next source code case immediately after the First Judicial District’s case?
In my opinion, the prosecutors from HennepinCounty don’t want consolidation because they want two bites at the apple. If the prosecutors like the results from the First District, will they seek to use the results in HennepinCounty. If they don’t like the results, then they have the right to their own hearing on the source code issue.
It would in the best interests of Minnesotan’s to move these cases along and stop wasting the tax payers’ money, particularly in these tough economic times. As I blogged previously, otherwise, CMI, the Intoxilyzer 5000 manufacturer, will be the sole winner here.
HennepinCounty is the sole county in the Second Judicial District, which has the largest population in the state of Minnesota. It has the following cities:
Hennepin County Judge Daly issued an email today regarding the approximately 90 criminal DWI Intoxilyzer Source Code. In the email addressed to the Source Code Coalition, judges of the Judges of the Fourth Judicial District and others, she wrote:
Good afternoon,
Tomorrow we will be conducting a hearing on the criminal source code cases. The hearing will be on the A Level of the GovernmentCenter, in the Jury Assembly Room, at 9:00 AM. I will be there along with Judges Wernick and Cahill. Judge Jerry Abrams of the First District will be attending the hearing.
Given that there are over 90 cases on that calendar we need to have some efficiencies. The hearing will be reported and so consideration will be given to the reporter as well. For those reasons we are asking that each “group” select a spokesperson. By “group” we mean the private defense group( MSCJ), the Meaney/Patrin group (if they wish to have a separate spokesperson), the PD (if they wish to speak separately from the MSCJ), the suburban prosecutors and the Minneapolis City Attorney.
We will be asking Judge Abrams to talk about what is happening in the First. We will then ask each group to state what they are requesting of the court going forward. Finally, ever hopeful, Judge Wernick and Cahill will be available to accept pleas should the parties wish to resolve their case. The defendants are required to appear at this hearing.
Please feel free to contact me with questions or concerns. See you all tomorrow.
Judge Daly
Given that CMI does not seem to be cooperating with the Source Code Coalition's efforts to examine the source code -- thus further delaying the review -- I hope prosecutors are in a mood to resolve these cases. To do so, I believe they should have the mindset that the Intoxilyzer 5000 test result will not be available to them in their case. Otherwise, the defendants will have no incentive to settle.
Minnesota has four severity levels of DWI / DUI charges in Minnesota. The level of your charge depends on the number of prior offenses and other enhancing factors.
FIRST DEGREE DWI
The most severe is a First Degree DWI. This can be charged only where the state of Minnesota has probable cause to believe the person drove, operated or was in physical control of a motor vehicle while either under the influence of alcohol, had an alcohol concentration of .08 or more, or refused to submit to alcohol testing AND had three prior DWI convictions or license revocations in the past 10 years. This is a felony level offense.
SECOND DEGREE DWI
The next most severe is a second degree DWI. The state can charge a second degree DWI only where it has probable cause to believe the person drove, operated or was in physical control of a motor vehicle while either under the influence of alcohol, had an alcohol concentration of .08 or more, or refused to submit to alcohol testing AND has two enhancing factors. Enhancing factors include prior DWI convictions or license revocations in the past 10 years; having a child under the age of 16 in the vehicle at the time; test refusal and having an alcohol concentration of .20 or more. This is a gross misdemeanor level offense. The maximum penalty is 1 year in jail and a $3,000 fine. It has a minimum penalty of 90 days confinement if the person has two prior DWI convictions or license revocations.
THIRD DEGREE DWI
The third most severe is a third degree DWI. The state can charge this only where it has probable cause to believe the person drove, operated or was in physical control of a motor vehicle while either under the influence of alcohol, had an alcohol concentration of .08 or more, or refused to submit to alcohol testing AND has one enhancing factor. This is also a gross misdemeanor level offense with the same maximum penalties as a Second Degree DWI. It has a minimum penalty of 30 days confinement if the person has one prior DWI conviction or license revocation.
FOURTH DEGREE DWI
Finally, the least severe is a fourth degree DWI. The state can charge this only where it has probable cause to believe the person drove, operated or was in physical control of a motor vehicle while either under the influence of alcohol, had an alcohol concentration of .08 or more. If a person twice the legal limit has a child in the vehicle or refuses to submit to an alcohol test, the state will charge them with a third degree DWI. This is a misdemeanor level offense. The maximum penalty is 90 days in jail and a $1,000 fine.
A WORD ABOUT OUR PHILOSOPHY:
While many lawyers merely negotiate the best resolution, the best result in a criminal case comes only with hard work by a skilled practitioner. A good lawyer looks for the way to beat the charges. For example, the stop of the vehicle may be unconstitutional; the officer may have violated the implied consent law or the alcohol test result may be flawed.
Contact my office immediately if you have been charged with a DWI for a free consultation.
I have been successful getting judges to throw out urine test results. I’ve posted the court orders in the Carroll case and Westlund case. I’ve also prevailed in trial where a jury agreed urine tests are worthless. Prosecutors are well aware of my firm’s victories. Indeed, I’ve had much greater success in this area than any other attorney in Minnesota. As a result, prosecutors are reluctant to go to trial with me in urine test cases. This is good news for my clients.
If the State of Minnesota has charged you with a crime or taken your license based on a urine test, call us immediately. We can help.
Today, Judge Abrams issued his Case Management Order (CMO) for Minnesota's First Judicial District's Intoxilyzer 5000 Source Code litigation. The order sets a final hearing on the source code issue for May 10-21, 2010.
WHEREAS, the Court has determined that this Case Management Order
("CMO") is appropriate and will be of assistance in the efficient management of this litigation; IT IS HEREBY ORDERED, that this CMO be and hereby is entered as follows:
1. Case Designation
Every filing shall contain, in its caption, the Master File Number 70-CV-09-19459.
In addition, for each separate case the individual originating County file number assigned to each case must also be included in the caption for any filing which pertains to an individual case. Filings in the Master Court File shall be made as set forth in the following paragraph. Attached hereto as Exhibit A is a listing of the original file numbers and other pertinent information for each case which is subject to this Order.
Allcases and all filings for the Master Case File herein shall be directed to the attention of Lori Brandon, Court Administration Scott County. Regardless of where the case was initially filed, all cases Subject to the Consolidation Orders issued in the First District by the Honorable Edward Lynch, as attached in Exhibit A, are to comply with the terms of this CMO. All filings for the individual matters shall be filed with the Court Administrator's Office in the originating county.
2. Applicability of Order
This Case Management Order ("CMO") applies to all pre trial, and trial proceedings concerning the "Source Code" issue in the Implied Consent Master Case and in all cases listed in Exhibit A. Upon resolution of the "Source Code" issue, each case shall be returned to its originating County for such further trials or hearings as may be required.
3. Filing and Service of Papers
a. Master Service List.
Except as otherwise provided for herein, all papers or pleadings filed with the Court or served upon a party shall be served as described in this CMO on counsel for all parties to this action in accordance with the Master Case List, attached hereto as Exhibit A. For the purposes of economy, it shall be sufficient to state in a certificate of service that the relevant document was served on counsel for all parties and on unrepresented parties listed on the Master Case List current as of that date. The Master Case List may be incorporated by reference with express reference to the revised date thereof, and need not be attached to the certificate of service. The document served must be addressed to the individual attorney(s) or unrepresented party(ies) on the Master Case List.
b. Method and Timing of Service.
Service of all pleadings, motions, deposition notices, requests for discovery and other papers required to be served upon counsel for the parties or unrepresented parties (collectively "papers") shall be affected upon the parties with copies to all persons on the Master Case List by electronic mail. Papers served by electronic mail shall be attached to emails as Adobe Acrobat (.pdf) files or Microsoft Word (.doc) files. To the extent a party is unable to effect service by electronic mail to counsel for any party or any party not represented by counsel, service may be affected by facsimile, overnight mail, or regular mail. Large exhibits, affidavits, declarations, or other supplemental documents may be served by overnight mail. With respect to any papers served as described in this paragraph 3b, three (3) days shall be added to any time computed under the Minnesota Rules of Civil Procedure or the Minnesota General Rules of Practice for any party to respond to any such papers.
All Orders of the court in connection with this case shall be posted on the First Judicial District Website at http://www.mncourts.gov/districU1/?page=3753 and shall also be simultaneously transmitted to Liaison Counsel for service upon parties in accordance with the procedures set forth herein.
c. Filings.
The original of every pleading and motion shall be filed with this Court along with proof of service on all counsel and unrepresented parties. The original of each filing shall be directed to the Master File; one copy shall be directed to the originating county for filing in the individual case file. A courtesy copy of every pleading, motion, or letter shall also be directed to Judge Abrams, C/O Daniel J. Sagstetter, Judicial Law Clerk. The parties are advised that for each case in which a fee may be required for filing, (e.g. motion fee, fax fee) THE FEE MUST BE PAID FOR EACH CASE INWHICH RELIEF IS BEING SOUGHT. The fee should be submitted to
Court Administration in the originating county for each individual file. No additional fee is required for the service copy directed to the Master File.The filing of discovery materials with this Court shall be governed by the Minnesota Rules of Civil Procedure, except that the original of all such papers which are not filed with this Court under such rules shall be kept in the offices of counsel responsible for generating such pleading, motion or discovery.
d. Correspondence.
All materials, such as correspondence, which are not due to be docketed, shall be sent directly to the chambers of Judge Abrams. Correspondence and other materials will only be accepted if they are in regards to general administrative matters. The parties shall not submit correspondence regarding substantive matters or any other substantive materials directly to the Judge assigned to the case unless requested by or authorized by Judge Abrams. The corresponding party shall contemporaneously forward a copy of all correspondence and other materials sent to Judge Abrams to all counsel and unrepresented parties by electronic mail or regular mail, as may be necessary.
e. Documents Filed with the District Court.
Notwithstanding the foregoing, any motion genuinely requiring emergency relief shall be delivered directly to the chambers of Judge Abrams. Any such document shall also be served electronically or faxed to all parties on the date of delivery. Proof of service shall be filed within (5) five business days thereafter.
4. Discovery
a. Avoiding Redundancy.
All parties should use their best efforts to avoid unduly duplicative submissions and propound joint discovery requests to the end of minimizing the need for any other party to perform repetitive file searches or interviews of employees and agents on the same topics.
b. Document Requests.
The parties shall not unreasonably refuse to grant extensions of time if reasonably required due to the voluminous number of documents being produced or other necessity associated with their document production.
i. Place of Production and Procedures.
Unless otherwise agreed by the parties, parties shall produce documents for inspection and copying, to the extent practicable, in the form and manner in which the documents have been maintained in the ordinary course of business or in which they previously have been maintained for production in litigation. To distinguish effectively among the documents designated for copying by the parties, each page of each document copied by any party shall bear a unique document identification number, with a unique prefix which identifies the party producing the document ("Bate Stamps" or "Bate Label"). Where documents or portions of documents are withheld, the parties shall, either through the numbering system or as otherwise provided in this Order, to the extent reasonably practicable, identify the number of pages withheld in a manner sufficient to indicate their location in the file being produced. Where part of a page is redacted, both the fact and location of the redaction, and the size or extent of the redaction shall be made clear on the face of the document.
Within a reasonable time before production, the producing party shall advise the inspecting party of the approximate volume of the documents and a general description of the types of files or other materials involved. Each party shall produce its documents at its option: (a) by production of originals as they are kept in the ordinary course of business; (b) by production of as legible as possible photocopies in the same format; or (c) by electronic means or other computerized storage. Notwithstanding these provisions, any party may request to inspect the original of any document, communication, or thing produced and the parties shall make arrangements for such inspection within ten (10) days of the request.
The location of the production shall be at the place where the documents are kept in the ordinary course of business, at the office of the producing attorney, or as otherwise agreed by the parties, provided, however, that all such document productions shall take place in the United States.
ii. Privilege Log.
If a party determines that a document responsive to a document request is subject to attorney/client privilege, attorney work product protection, or any other form of privileges or protection, the following method of handling the privileged or protected writing shall be followed.The producing party may withhold the privileged or protected document and must identify the withheld document on a privilege log which shall be provided to the requesting party and all other parties as soon as practicable, but no more than thirty (30) days following the date on which the producing party is due to commence physical production of the requested documents. If after completion of production pursuant to a particular demand for inspection the producing party discovers additional responsive documents and determines any of them to be subject to attorney/client privilege, attorney work product protection, or any other form of privilege or protection, the producing party may withhold any such privileged or protected document and must identify the withheld document on a privilege log which shall be provided to the requesting party as soon as practicable but in no case more than thirty (30) days after the documents are discovered. Likewise, to the extent any material within a document otherwise producible contains privileged or protected information, the document shall be produced subject to redaction of the subject privileged and protected material and shall be listed on the privilege log. All privilege logs shall identify each privileged document or work product by providing the Bates Label range, date, author(s), recipient(s), the subject matter of the document withheld or information redacted and the nature of the privilege or work product protection asserted. Nothing in this section shall preclude a party from challenging a claim of privilege.
c. Confidentiality Order.
All documents and other discovery materials and testimony produced or provided in this action may be subject to the terms and provisions of the Protective Order, in the form as attached as Exhibit B hereto, which has been entered in each case.
d. Inadvertent Production of Privileged Information.
If a party inadvertently produces information or documents that it considers privileged or protected material, in whole or in part, or learns of the production of its privileged or protected material by a third-party, the party may retrieve such information or documents or parts thereof, memoranda and other material as follows:
(1) Any assertion of inadvertent production shall be made as soon as practicable, but in any case within ten (10) days of the date the party discovers that it, its agents or attorneys, or a third-party has inadvertently produced the privileged document. The party asserting inadvertent production must provide written notice to all parties on the Master Case List via electronic mail or as otherwise provided herein that the party claims the document, in whole or in party, to be privileged or protected material; in addition, such notice must state the nature of the privilege or protection and the factual basis for asserting it. No assertion of inadvertent production will be made less than thirty (30) days before trial or fourteen (14) days after service of a trial exhibit list, whichever comes later.
(2) Upon receipt of such notice, all parties who have received copies of the document shall, within five (5) days thereafter, confer with the producing party and discuss how to resolve the issue. If no agreement is reached, the producing party may request reasonable relief from the Court, including an order that all copies of inadvertently produced documents shall be returned to the producing party, destroyed or otherwise be made available for procurement by the requesting party. Parties who received copies of inadvertently produced documents may oppose the granting of such relief on any permissible basis, including requesting an order that the inadvertently produced documents are not privileged and do not constitute protected attorney work product.
(3) In the event that only part of a document is claimed to be privileged or protected, the party asserting inadvertent production shall furnish to all parties redacted copies of such document, removing only the part(s) thereof claimed to be privileged or protected, together with such written notice.
e. Mutual Use of Discovery.
To help avoid redundancy, all discovery served by any party inure to the benefit of and are enforceable by any other party. The settlement, release or dismissal by any means of any party propounding such discovery will not in any way limit or extinguish any other party's obligation to comply with the discovery.
5. Motion Practice
Except as otherwise provided by the Court, pretrial motions in this litigation shall be governed by the Minnesota Rules of Civil Procedure and by the General Rules of
Practice for the District Courts, provided that these latter rules are modified procedurally as follows:
(1) Motion hearing dates shall be obtained directly from Jan Vohnoutka at Scott County Court Administration;
(2) Proposed orders for dispositive motions shall not be submitted unless specifically requested by the Court;
(3) The moving party shall provide a certification of an attempt to meet and confer to resolve their dispute, (such as is described in Rule 115.10 of the Rules of General Practice for the District Courts) which shall be in writing and shall be filed separately at least two (2) days prior to the hearing date.
Counsel shall attempt to coordinate a hearing date and the notice of motions for hearing on a date cleared with Jan Vohnoutka at Scott County Court Administration.
Nothing shall restrict any party's right to apply to the Court for an order shortening or extending time or page limitations on a motion upon a showing of good cause, but only after making good faith efforts to resolve the issue among counsel.
6. Coordination Among Parties
The Court expects cooperation among the parties to coordinate motion practice, discovery, trial, or otherwise to minimize the expense in this litigation. The parties shall, to the maximum extent practicable, avoid duplicative motions, briefs and discovery ("filings") consistent with each party's individual interests. Since many parties have a commonality of interest as to many issues in the actions, they may serve joint discovery and file joint submissions with the Court and/or adopt, join in or support any motion made or discovery propounded by another party simply by so noting in writing.
Each party has an affirmative duty to immediately notify the involved party upon receipt of any misdirected attorney/client or other privileged communication or work product document, outside the ordinary course of discovery. Upon written request, the receiving party shall either (a) return such communication or other document, along with any and all copies, to the involved party, or (b) provide correspondence or affidavit to the involved party attesting to the fact that such communication or documents and all copies thereof have been destroyed.
7. Depositions
a. Cooperation.
The parties will use reasonable efforts to schedule depositions by agreement. To that end, the parties will participate in bi-weekly discovery conferences by telephone for the purpose of making best efforts to select mutually convenient dates and places for the initial round of depositions, identifying witnesses and arranging other matters. Unless otherwise agreed, formal notice of scheduled depositions is required. Unless exigent circumstances exist, the parties will be advised of a deposition at least ten (10) calendar days before a deposition is scheduled to commence.
b. Non-Party Depositions.
Counsel shall attempt to resolve with any non-party deponent the identification for production and subsequent production of any documents being subpoenaed. Whenever possible, this process shall be completed no later than seven (7) days before the date on which the deposition has been scheduled. All counsel shall be given notice of any documents identified for production pursuant to subpoena and shall have the right to inspect and copy, at each inspecting party's expense, whatever documents are produced by a non-party in response to a subpoena.
Upon request, a party shall conduct a search of all records that may disclose the present address of any former employee and shall provide such information to the requesting party as soon as practicable. Nothing in this Order shall preclude any party, if it so chooses, from obtaining the attendance of any former employee or officer of another party for deposition by subpoena in the first instance.
c. Stipulations.
Unless otherwise noted on the record, the following stipulations shall apply to all depositions in these actions:
(1) Any objection by a single party shall be deemed an objection by each and every similarly situated party;
(2) Corrections to a deposition transcript shall be listed on an errata sheet, copies of which shall be served on all parties by counsel for the deponent or the deponent, within thirty (30) days following receipt of the deposition transcript;
(3) To the extent practicable, exhibits shall be attached to the original transcript. Where the form or volume of exhibits makes attachment to the transcript impractical, the custody of such exhibits shall be maintained at the office of the attorney taking the deposition or the court reporter and such exhibits shall, after reasonable notice, be subject to inspection and copying by any party during normal business hours or by appointment;
(4) The parties shall strive to select and retain court reporters that can produce transcripts in both manuscript and computer-readable format, other agreed format. The parties may stipulate to maintain an online repository for all depositions taken in these cases subject to limitations on accessibility as may be determined by the parties.
d. DepositionSchedule.
With respect to aged or infirm witnesses, counsel shall abide by the reasonable request of such witnesses with regard to timing and availability for deposition testimony. The parties will undertake all reasonable efforts to conduct depositions in an efficient, cost-effective and expedited manner.
e. Attendance and Interrogation.
All parties shall be entitled to be represented at every deposition and to inquire of a deponent through their counsel. A former employee or officer may be represented at his or her deposition by counsel for the former employer. In order to facilitate necessary arrangement for attending counsel, not less than two (2) days prior to the commencement date of a deposition, any counsel intending to attend the deposition shall use its best efforts to notify the noticing party and counsel for the deponent.
f. Time and Location of Depositions.
Depositions may be held Monday through Friday, and shall commence no earlier than 9:00 a.m., and conclude no later than 5:00 p.m. local time, unless otherwise agreed between counselor ordered by the Court. No deposition shall be scheduled for more than two (2) consecutive days absent agreement by the parties or order of the Court. A deposition may, however, proceed for a third consecutive day without agreement of the parties or order of the Court if there is at least eighteen (18) hours between the end of the second deposition day and the commencement of the third. To save expense and travel time, all sessions of the deposition of a single deponent shall, to the extent consistent with the witnesses' schedule and health and the deposition schedule, and unless otherwise agreed, proceed on successive weekdays and for the full deposition day until completion. Except as the parties may agree, no deposition shall be scheduled on the following dates: Court hearing dates, Martin Luther King, Jr.'s Birthday, President's Day, Good Friday, Passover (the first two days), Memorial Day, Independence Day (including the preceding Monday if it falls on a Tuesday or the following Friday if it falls on a Thursday), Labor Day, Rosh Hashanah (two days), Yom Kippur (two days), Columbus Day, Veterans Day, and Thanksgiving (Wednesday, Thursday and Friday). Depositions of witnesses residing outside the United States shall not be scheduled on national holidays in the witness' home country. In addition, no depositions shall be scheduled between December 21, 2009 and January 4, 2010 except upon agreement of the parties.
g. Out of State Depositions.
In order to facilitate the orderly taking of any such foreign deposition, the
Court hereby orders commissions to be granted to take out of state depositions of parties and non-party witnesses, at such times and in such places as are agreed upon by counsel, such commissions to be issued to persons duly authorized by the law of the foreign state to take such testimony. This Order appointing commissions to take foreign depositions shall be applicable to all out of state depositions taken in this action, without the need for any party to file any additional motion for appointment of a commission to take any out of state deposition. The parties will provide the Court with a template order, or otherwise with other necessary appropriate orders respecting the appointment of commissions.
h. Exhibits.
To the extent practicable, all parties intending to question a witness at a deposition with respect to documents shall provide a reasonable number of copies of such documents for the use of the other parties in attendance at the deposition. Exhibits should be identified by the name of the witness and numbered consecutively in each deposition.
i. Objections.
The only objections that shall be raised at any deposition are those involving a privilege or other protection against disclosure or some matter that may be remedied at the time, such as to the form of the question, that the question has previously been asked and clearly answered, or the responsiveness of the answers. Objections on any other grounds shall be avoided and are not waived but preserved until trial. All objections shall be concise and must not suggest answers to the deponent. So called "speaking objections" are not permitted. Except as to an objection on grounds of privilege, any objection made by one party reserves that objection for all other parties and duplicate objections shall not be made.
j. Directions to Deponent Notto Answer.
Directions to a deponent not to answer are improper except on the grounds of privilege, confidentiality, or other similar protection, or to enable the party or deponent to present a motion to the Court for termination of the deposition or protection such as under Minnesota Rule of Procedure 26.03. When privilege, confidentiality or other protection is claimed, the witness shall nevertheless answer questions relevant to the existence, extent or waiver of the privilege, confidentiality, or other protection.
k. Immediate Presentation of Deposition Disputes.
Consistent with discovery concepts and objectives set forth above, if disputes arise during a deposition which the attorneys cannot resolve by agreement and which, if not promptly decided, will critically disrupt the discovery program or court-imposed schedules, the parties may submit the matter orally by telephone to the undersigned if available.
8. Avoidance of Unnecessary Duplication
Cooperation and communication among parties as ordered herein shall not constitute the waiver of any applicable privilege or be construed as evidence of wrongful conduct. In the event that any party is in genuine doubt about the legal effect of the communication and cooperation ordered herein, such party may seek the Court's clarification of the party's responsibilities before proceeding.
9. No Waiver of Privilege Due to Joint Efforts
Communications in connection with this case between and among counsel for the parties and/or their clients, including the exchange of documents and information, shall be deemed subject to the attorney/client privilege, work product protection, and any other applicable privilege or protection to the same extent as if the communication had taken place within one law firm or between one law firm and one client represented by that firm. Protection afforded by this Order will survive the conclusion of this litigation and the dismissal of any party from this action. If a party withdraws from any cooperative litigation efforts with other parties, previous communications among the withdrawing party and such other parties and all work product shared by or with the withdrawing party with respect to this action, will remain subject to any attorney/client privilege, work product protection, or other privilege that attached at the time the communications were made or the work product was shared. Any such withdrawing party is under a duty not to reveal information obtained through such cooperative efforts.
10. Rules and Procedures
This CMO supersedes any provision of the Minnesota Rules of Civil procedure
and General Rules of Practice for the District Court that are in conflict with the provisions of this CMO.
11. CMO Binding on Subsequently Added Parties
Any new party to this consolidated action after the date the CMO is entered up to and including February 16, 2010 shall be served with a copy of this CMO by Liaison Counsel and any subsequent Case Management Orders. Any such new party will be bound by this CMO and all other Case Management Orders unless it files a motion for relief with the Court within ten (10) days after service of this CMO and other case management order upon it. Upon the addition of any party to this action, the party adding the new party shall serve a copy of this CMO on counsel for the new party within five (5) days of the date of receiving notice of the identity of the new party's counsel.
12. Liaison Counsel
In recognition of the large numbers of prosecutors, petitioners, and defendants in this action and to promote sufficient communication between and among the parties and the Court, the parties will appoint counsel to serve as Liaison Counsel, designated as follows:
Marsh Halberg
Minnesota Society for Criminal Justice - Source Code Coalition
Lee Orwig
Minnesota Society for Criminal Justice - Source Code Coalition
Jeff Sheridan
Minnesota Society for Criminal Justice - Source Code Coalition
Chuck Ramsay
Minnesota Society for Criminal Justice - Source Code Coalition
Derek Patrin
Meaney&Patrin, PA
Kristi Nielsen
Minnesota Attorney General's Office
David Koob
Minnesota Attorney General's Office
Subject to the right of any party to present individual or divergent positions, the liaison counsel is vested by this Court with the following responsibilities and duties:
(1) Communicate with opposing counsel, communicate with all other counsel in its respective liaison group and receive orders, notices and correspondence from this Court and the District Court Administrator in any matter pertaining to this action;
(2) Promptly forward to all counsel for its respective liaison group copies of all documents from the Court or the District Court Administrator, not otherwise provided to them electronically, report to all counsel in the represented group on all meetings and communications with this Court or other liaison counsel;
(3) Organize and schedule meetings of counsel for joint action;
(4) Coordinate common discovery;
(5) Initiate action by the Court to remedy disputes among the parties;
(6) Participate in conference calls with this Court to resolve disputes and scheduling matters;
(7) Maintain a current copy of the Master Case List, and serve and file any updated Master Case Lists; and
(8) Perform such other duties as may be expressly authorized by further order of this Court or agreed to by counsel.
Liaison counsel shall not be deemed to speak for, act for, or bind any particular litigant or group of litigants absent express authority provided by such litigant or group.All counsel of record shall have an opportunity to present to this Court their respective views and opinions as to matters before this Court. The liaison counsel shall not be liable for any actions arising from their respective roles as such and this Court shall act to remedy any inadvertence as appropriate.
13. Pro Hac Vice Admission of Attorneys
Any lawyer admitted or currently licensed to practice before a Court of general jurisdiction in any state in the United States and who is specifically associated with a currently licensed Minnesota lawyer may be deemed admitted pro hac vice to practice before the Court in this litigation only. Other than those attorneys admitted pro hac vice prior to the date of issuance of this Order, attorneys may be deemed admitted pro hac vice upon completion of the following:
A. An Affidavit Setting Forth:
(1) His or her full name and non-Minnesota business address;
(2) His or her date and place of each state licensure;
(3) A representation that the affiant's license to practice law is current and is not under revocation, suspension, restriction or limitation in any other state of admission or in the federal courts, and that the affiant is an attorney in good standing in all states of licensure;
(4) A representation that the affiant is, or will promptly become, familiar with all applicable Minnesota court rules, procedures and requirements of professional conduct, and will follow and abide by such rules, procedures and requirements.
B. A Notice of Pro Hac Vice Representation Selling Forth:
(1) The non-Minnesota lawyer's full name and non-Minnesota business address, telephone number, facsimile number, and e-mail address;
(2) The name, address, telephone number, facsimile number and e-mail address of the Minnesota lawyer or law firm with whom the attorney will associate for purposes of this litigation;
(3) The name of each party whom the attorney will represent.
Such affidavit and notice of pro hac vice representation shall be filed with the Court Administrator of the originating county of the case within the First judicial District.
Notice of pro hac vice representation shall be served upon all counsel on the Master Case List.
14. Status Conferences and Scheduling
a. Status Conferences.
General status conferences shall be held at 1:30 p.m. every other Friday as needed from December 11, 2009 (excluding December 25, 2009) until no longer needed. The principal purpose of the general status conference is to discuss and resolve administrative issues common to all parties. Issues that affect only specific parties and that have no significant implications for other parties will be calendared for a separate hearing date or, if the status conference agenda permits, for 2:30 p.m. on a status conference date.
Not later than the preceding Friday before the status conference, liaison counsel shall confer and shall determine whether or not a status conference for the following Friday will be necessary. If they agree that such conference is not necessary, they shall cancel the conference and promptly notify the Court and the remaining parties of the cancellation. Ifliaison counsel decides to proceed with the status conference, they shall prepare a common agenda and shall notify all parties and the Court thereof not later than the close of the business day on the Monday preceding the conference date.
b. Scheduling.
In recognition of the complexity of the issues before the Court, the Court will discuss the progress of the parties in discovery and other matters at the status conferences and upon application of the parties jointly or unilaterally may amend or modify the scheduling order from time to time.
The following dates and deadlines shall apply to all actions subject to this CMO:
February 16, 2010- Petitioner expert disclosure deadline; non-expert discovery ends; final date for adding new cases to docket of consolidated cases
April 2, 2010- Respondent expert disclosure deadline
April 6, 2010 - Expert discovery begins
April 19, 2010 - All non source code pre trial issues are to be resolved
May 3,2010 - Expert discovery concludes
May 10-21, 2010 - Final hearing on source code issue
Dated 12.1.09 by The Court: Jerome B. Abrams, Judge of District Court
Exhibit B
State of Minnesota, District Court
County of First Judicial District
Petitioner vs. Commissioner of Public Safety, Respondent
Court File No.
Protective Order
WHEREAS, the U.S. District Court for the District of Minnesota has entered a
Consent Judgment and Permanent Injunction regarding access to the source code used in the operation of the Intoxilyzer SOOOEN ("Source Code"), the breath-alcohol testing instrument used to enforce the driving while impaired ("DWI") and implied consent laws in Minnesota. This Consent Judgment and Permanent Injunction requires issuance of a Protective Order as a precondition to obtaining access to the Source Code; and
WHEREAS, this Court has ordered that the Source Code be made available for inspection and review or has found the Source Code to be relevant or material in the above-captioned case; and
IT IS HEREBY ORDERED:
1. As used in this Protective Order, the listed terms have the following meanings:
"Attorneys" means counsel of record in this matter;
"Confidential" documents and information are documents or information designated Confidential pursuant to Paragraph 2 herein; and
"Source Code" refers specifically to the Source Code for the Intoxilyzer 5000EN used in the State of Minnesota.
2. A Party may designate any document "Confidential," including interrogatory responses, other discovery responses, or transcripts, based on a good faith belief that the document constitutes or contains trade secrets or other confidential information. Source Code is hereby designated as Confidential, except for that portion of the Source Code assigned and delivered to the State pursuant to the Settlement Agreement between the State and CMI dated June 1, 2009.
3. All Confidential documents and information shall be used solely for the purpose of the above-captioned matter, or as otherwise permitted by the federal Consent
Judgment and Permanent Injunction.. No person receiving such documents or information shall, directly or indirectly, use, transfer, disclose, or communicate in any way Confidential documents or information to any person other than those specified in Paragraph 4 herein and the federal Consent Judgment and Permanent Injunction.
4. Access to any Confidential document or information shall be limited to:
(a) The Court and its staff;
(b) Attorneys of record and their law finns;
(c) Persons shown on the face of the document to have authored or received it;
(d) Court reporters retained to transcribe testimony;
(e) The Parties to this case;
(f) Outside vendors (limited to professional copy services);
(g) Outside independent persons who are retained by or otherwise assist a
Party or its Attorneys to provide technical or expert services and/or give testimony in this action, and who are not, and have not been, employed by (as an employee, agent, or consultant) or otherwise affiliated with, any manufacturer of breath alcohol testing instruments within the preceding twenty-four (24) months.
5. Any outside independent person (as defined in Paragraph 4(g) herein) who receives access to the Source Code or other Confidential information shall execute a Non-Disclosure Agreement in the form prescribed in Paragraph 3(c) of the federal Consent Judgment and Permanent Injunction before receiving access to the Source Code or Confidential Information. In addition, any Attorney or Party (as defined in Paragraphs 4(b) and (e) herein) who receives access to the Source Code shall also execute a NonDisclosure Agreement in the form prescribed in Paragraph 3(c) of the federal Consent Judgment and Permanent Injunction before receiving access to the Source Code. Receipt of access to the Source Code pursuant to this Protective Order shall not constitute or convey any right, title, license, or other interest in any portion of the Source Code.
6. Non-parties producing documents in the course of this action may also designate documents as "Confidential" subject to the same protections and constraints as the Parties to this action. A copy of this Protective Order shall be served along with any subpoena served in connection with this action. All documents and information produced by such non-parties shall be treated as "Confidential" for a period of 15 days from the date of their production, and during that period any Party may designate such documents as "Confidential" pursuant to the terms of this Protective Order.
7. Any testimony or written report that contains Confidential documents or information will receive the same protections afforded to Confidential documents themselves. Confidentiality designations for testimony shall be made on the record or, where appropriate, by written notice to the other Party. It shall be the responsibility of the Party who noticed the deposition, called the witness, or seeks to introduce the evidence, to designate such testimony or information as Confidential. The testimony of any witness (or any portion of such testimony) that contains Confidential information shall be given only in the presence of persons who are qualified to have access to such information pursuant to Paragraph 4 herein.
8. Any Party or non-party that inadvertently fails to identify documents or information as Confidential in accordance with this Protective Order shall, upon discovery of its oversight, promptly provide written notice of the error and substitute appropriately designated documents or information. Any Party receiving notice of improperly designated documents or information shall act immediately to retrieve such documents or information from persons not entitled to receive such documents or information and shall return the improperly designated documents or information to the producing Party.
9. Any document designated Confidential or containing Confidential information that is filed with this Court, including any expert report, shall be filed under seal. Any Confidential information shall be redacted from such document or report before it is made publicly available.
10. No action taken in accordance with this Protective Order shall be construed to be a waiver of any claim or defense in the action or of any position as to discoverability or admissibility of any evidence in the case.
11. The obligations imposed by this Protective Order shall survive the termination of the above-captioned matter.
12. Any violation or breach of the terms and conditions set forth in this
Protective Order shall be grounds for any appropriate sanctions available under the law.
In August a SherburneCountyjury found my client innocent of all DWI charges in a blood test case. The state had reported his alcohol concentration was .16. We beat that case by showing the jury that the state did not follow the procedures necessary to ensure the results were valid, reliable and accurate. We also showed that our client was not impaired by alcohol.
Last week, an Anoka court ruled in favor of my client where his blood alcohol concentration was .19. “Andy” had rolled his pickup truck on I-35W in Blaine, Minnesota earlier this year. Because of his injuries, Andy was taken to the hospital where police ordered hospital staff to obtain a blood sample. An employee of the hospital staff complied. Police mailed the blood vials to the Minnesota Bureau of Criminal Apprehension (BCA) for analysis.
Under Minnesota’s Implied Consent Law, any person who has been trained as a physician, medical technician, emergency medical technician, registered nurse, medical technologist, medical technician-paramedic, medical laboratory technician, or laboratory assistant may administer a blood test.
In Andy’s case, the person who withdrew the blood was an “Emergency Department” Technician. ER Technician is not one of the enumerated qualified persons to draw blood under the implied consent statute. As a result the court held the blood test result inadmissible and rescinded my client’s driver’s license revocation.
Because the court ruled in our favor on that issue, the court did not need to address the other issues in the case: whether the officer denied my client the right to consult with an attorney before deciding whether to test or consent. I believe either of these other issues would have been meritorious.
Of the three types of DWI alcohol tests used by Minnesota – blood, breath and urine – I see blood tests the least. This is probably due to the added time and expense required to go to the hospital where a medical professional must draw the blood, and the delay in receiving the results.
While blood tests are the most difficult to beat in a DWI case, the moral of this story is that blood tests can be beaten if challenged by a very competent attorney.
I regularly beat urine and breath tests as well. If you’ve been charged with a DWI or DUI as a result of a blood, breath or urine test, call Chuck Ramsay immediately.
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.
In each of the implied consent cases, the petitioner has challenged the reliability of his or her Intoxilyzer 5000EN test result based on their belief that reviewing the source code for the Intoxilyzer 5000EN will reveal a material defect affecting the instrument’s ability to produce accurate alcohol concentration results.I have addressed the flaws of the Intoxilyzer in past blog entries.
The Chisago County Court Administrator’s office notified my office today that it was consolidating the county’s source code cases into one hearing. The hearing is scheduled to be heard on May 5, 2010.
Coincidentally, Anoka County has scheduled its consolidated source code hearing for the same date. Chisago County seemed unaware of this. I do not know whether Chisago will reschedule the hearing. Since Chisago County is in the Tenth Judicial District with Anoka County (along with the counties of Isanti, Kanabec, Pine, Sherburne, Washington, and Wright), perhaps the district will consolidate the entire district’s hearings. In my opinion, this would save judicial resources and be more efficient for the courts and litigants.
On July 1, 2009, Minnesota implemented a statewide pilot Ignition Interlock program. This program allows drivers who have had their licenses revoked, cancelled, suspended or withdrawn due to multiple DWI convictions or revocations get their licenses back earlier, if they agree to install an ignition interlock device on their car.
This is the first sensible move by Minnesota in the DWI arena in decades. Until now the Department of Public Safety had a policy that made no sense. It preferred people to drive without a valid license – knowing people must drive on many occasions – than fashioning a workable solution to Minnesota’s drunk driving problem. This allows citizens to drive to work, school and other places legally while at the same time ensuring our roads are same for our loved ones. Bravo DPS!
According to a Duluth news outlet 400 DWI offenders have already participated in Minnesota’s Ignition Interlock Program. Some benefits to this program include driving sooner, being able to drive to work, school, or wherever you need, avoiding future DWIs, driving legally and quite possibly saving money by being able to drive your own vehicle in lieu of cabs, bus fare, or saving the hassles of having to ask others to drive somewhere for you. There are potential disadvantages, whether it is worth it for you to enroll will depend on your needs, preferences and level of offense. You will also have to have to bring your vehicle for monthly maintenance appointments so that engine start information can be downloaded into a report format.
The ignition interlock is a small device that is installed into the vehicle and is used to measure an individual’s alcohol concentration. If the driver has been drinking and blows into the tube and registers a high alcohol concentration level the vehicle will not start. The device will also trigger random retests as the vehicle is driven to ensure that alcohol has not been consumed while operating the vehicle.
It remains to be seen what if any flaws exist in the program which may cause a device to erroneously stop one’s automobile.
For your convenience, I’ve posted Minnesota Statute sections 171.305 and 171.306 in their entirety below:
171.305 IGNITION INTERLOCK DEVICE.
Subdivision 1.Definition.
"Ignition interlock device" or "device" means breath alcohol ignition equipment designed to prevent a motor vehicle's ignition from being started by a person whose alcohol concentration exceeds the calibrated setting on the device.
Subd. 2.
[ Expired]
Subd. 3.Performance standards.
The commissioner shall specify performance standards for ignition interlock devices, including standards relating to accuracy, safe operation of the vehicle, and degree of difficulty rendering the device inoperative. The interlock ignition device must be designed to operate from a 12-volt DC vehicle battery and be capable of locking a motor vehicle's ignition when a minimum alcohol concentration of 0.020 grams of ethyl alcohol per 210 liters of breath is introduced into the device. The device must also require a breath sample to determine alcohol concentration at variable time intervals ranging from five to 30 minutes while the engine is running. The device must also be capable of recording information for later review that includes the date and time of any use of the vehicle or any attempt to use the vehicle, including all times that the vehicle engine was started or stopped and the alcohol concentration of each breath sample provided.
Subd. 4.Certification.
The commissioner shall certify ignition interlock devices that meet the performance standards and may charge the manufacturer of the ignition interlock device a certification fee. A manufacturer who submits a device for certification must provide an application for certification on a form prescribed by the department.
Subd. 5.Issuance of limited license.
The commissioner may issue a limited license to a person whose driver's license has been canceled and denied due to an alcohol or controlled substance-related incident under section 171.04, subdivision 1, clause (10), under the following conditions:
(1) at least one-half of the person's required abstinence period has expired;
(2) the person has successfully completed chemical dependency treatment and is currently participating in a generally recognized support group based on ongoing abstinence; and
(3) the person agrees to drive only a motor vehicle equipped with a functioning and certified ignition interlock device.
Subd. 6.Monitoring.
The ignition interlock device must be monitored for proper use and accuracy by an entity approved by the commissioner.
Subd. 7.Payment.
The commissioner shall require that the person issued a limited license under subdivision 5 pay all costs associated with use of the device.
Subd. 8.Proof of installation.
A person approved for a limited license must provide proof of installation prior to issuance of the limited license.
Subd. 9.Misdemeanor.
(a) A person who knowingly lends, rents, or leases a motor vehicle that is not equipped with a functioning ignition interlock device to a person with a limited license issued under subdivision 5 is guilty of a misdemeanor.
(b) A person who tampers with, circumvents, or bypasses the ignition interlock device, or assists another to tamper with, circumvent, or bypass the device, is guilty of a misdemeanor.
(c) The penalties of this subdivision do not apply if the action was taken for emergency purposes or for mechanical repair, and the person limited to the use of an ignition interlock device does not operate the motor vehicle while the device is disengaged.
Subd. 10.Cancellation of limited license.
The commissioner shall cancel a limited license issued under this section if the device registers a positive reading for use of alcohol or the person violates any conditions of the limited license.
Subd. 11.Program standards.
The program standards applicable to section 171.306 also apply to this section.
The commissioner shall conduct a statewide two-year ignition interlock device pilot project as provided in this section. The pilot project must begin on July 1, 2009, and continue until June 30, 2011. The commissioner shall submit a preliminary report by September 30, 2010, and a final report by September 30, 2011, to the chairs and ranking minority members of the senate and house of representatives committees having jurisdiction over criminal justice policy and funding. The reports must evaluate the successes and failures of the pilot project, provide information on participation rates, and make recommendations on continuing the project.
Subd. 2.Performance standards; certification.
The commissioner shall determine appropriate performance standards and a certification process for ignition interlock devices for the pilot project. Only devices certified by the commissioner as meeting the performance standards may be used in the pilot project.
Subd. 3.Pilot project components.
(a) Under the pilot project, the commissioner shall issue a driver's license to an individual whose driver's license has been revoked under chapter 169A for an impaired driving incident if the person qualifies under this section and agrees to all of the conditions of the project.
(b) The commissioner must denote the person's driver's license record to indicate the person's participation in the program. The license must authorize the person to drive only vehicles having functioning ignition interlock devices conforming with the requirements of subdivision 2.
(c) Notwithstanding any statute or rule to the contrary, the commissioner has authority to and shall determine the appropriate period for which a person participating in the ignition interlock pilot program shall be subject to this program, and when the person is eligible to be issued:
(1) a limited driver's license subject to the ignition interlock restriction;
(2) full driving privileges subject to the ignition interlock restriction; and
(3) a driver's license without an ignition interlock restriction.
(d) A person participating in this pilot project shall agree to participate in any treatment recommended by a chemical use assessment.
(e) The commissioner shall determine guidelines for participation in the project. A person participating in the project shall sign a written agreement accepting these guidelines and agreeing to comply with them.
(f) It is a misdemeanor for a person who is licensed under this section for driving a vehicle equipped with an ignition interlock device to drive, operate, or be in physical control of a motor vehicle other than a vehicle properly equipped with an ignition interlock device.
Until now, Pennsylvania hospitals would analyze blood samples for DWI alcohol testing at the request of police utilizing “enzymatic testing,” a method widely considered by forensic scientists to be invalid, unreliable and inaccurate. Despite this, the state took citizens’ driver’s licenses and put them in jail based solely on enzymatic testing of blood samples.
The story behind the change in hospital policy is interesting. Mr. McShane had regularly obtained court orders which placed the hospital labs under great scrutiny and drained significant resources. The scrutiny jeopardized the hospitals' lab accreditation with scientific organizations when McShane exposed the unscientific methods. The loss of accreditation would have been extremely costly to the hospitals. In the end, rather than risk the loss of their accreditation under further intense scrutiny and exposure, the hospitals and clinics have informed police they will not longer analyze the blood samples.
Police will now likely send blood samples to the state crime lab to be analyzed using the Gas Chromatography – the gold standard of blood testing if administered and evaluated properly. It remains to be seen what effect this implicit admission will have on pending cases.
Minnesota does not recognize the enzymatic method for DWI blood testing. It uses the Gas Chromatography to measure the amount of alcohol in drivers’ blood. Coincidentally, Justin and I spent this week in Chicago at a hands-on science course entitled, Gas Chromatography: Fundamentals, Troubleshooting, and Method Development. The other attorneys attending the course were Andrew Alpert, Tyler Flood, Roderick Frechette, Stephen Hamilton, Josh Lee, Donald Ramsell and Michael Solak.
If you have been accused of having a blood alcohol concentration over the legal limit, call Chuck Ramsay immediately for the best possible DWI legal representation in Minnesota.
As was previously reported in a previous blog on 10.19.09 - Updated - Source Code Review Process - See who is involved - many private attorneys have each donated $1,000 to MSCJ’s source code review process. All of this is in addition to the tens of thousands the MSCJ membership has already expended leading the defense bar on this issue and the tens of thousands more it intends to commit as well.
If your attorney is not on the list, he or she is not keeping up with even the minimal requirements of a dwi lawyer.
At the heart of the matter is the reliability of the Intoxilyzer 5000 and whether or not this machine accurately measures a person’s alcohol concentration under Minnesota's DWI laws. This is the machine used state wide. I have addressed the flaws of the Intoxilyzer 5000 in past blog entries.
At yesterday’s mass hearing, coalition attorneys told Judge Abrams that they had hired Computer Forensics Services to review the source code as allowed under the federal court settlement. This would take approximately 2-3 months and will be done at CMI headquarters in Kentucky.
Judge Abrams decided he would schedule one mass hearing for next spring, to determine whether the breath test machine is reliable after the findings of the source code review. The hearing which includes 286 civil cases and 238 criminal cases (and growing) throughout the First Judicial District is expected to last anywhere from one to three weeks.
Other District Courts may join the First Judicial Districts in this hearing or conduct mass hearings of their own on the reliability and accuracy of the Intoxilyzer 5000.
Chuck Ramsay, Jeff Sheridan and Marsh Halberg have been named as lead counsel for the Minnesota Source Code Coalition. The three Minnesota attorneys have established themselves as leaders on the Minnesota DWI breath test issue. Ramsay obtained the source code in a federal lawsuit when he thwarted a Minnesota/CMI settlement which would have buried the software. Instead, he forced the state and CMI into providing unfettered access to the source code at the manufacturer's headquarters. Ramsay uncovered the secret "smoking gun" and "inferno" internal emails. Sheridan prevailed at the Minnesota Supreme Court in the Underdahl case opening the door to the source code issue. Halberg has been instrumental in organizing the defense bar and leading the coalition and also submitted valuable memoranda on behalf of the MSCJ in the federal case.
Lead counsel is appointed when multiple parties share sufficient common interests so that one attorney may represent them as a group, without conflict, on substantive matters. Typically, when a number of attorneys are appointed as co-lead counsel, each is charged with a particular specialty. Commonly, lead counsel will be appointed to head the trial team, for expert discovery, for factual discovery and for briefing.
Earlier this month, fellow criminal defense lawyer, Ms. Christine Funk interviewed Mr. Charles Ramsay for asegmentof her online show, The Crime, Science and Information Show, that provides answers to various questions regarding workings of thelaw, the judicial system and the principles of forensic science.
Mr. Ramsay met with Christine Funk in order to discuss intoxication laws – including what those laws are, evidence and scientific issues concerning those laws and legal challenges that may occur now that evidence and scientific angles are being challenged.
During the interview, Mr. Ramsay explains the difference between driving while intoxicated (DWI) and driving under the influence (DUI), various tolerance levels for individuals and the government's means for determining an individual's alcohol concentration (urine testing, blood testing, breath testing). He also provides more information on breath test machines and the source code issues breathalyzers face.
Like Charles, Christine believes in knowing the law, the facts surrounding each case and the science behind each case.
Ms. Christine Funk has been with the Public Defenders Office for the State of Minnesota, serving as a member of the Trial Team Office. Christine has made great strides in challenging DNA evidence in cases throughout her career and has strived to make scientific evidence understandable to other lawyers, along with average, ordinary citizens. She hosts the online show, The Crime, Science and Information Show on The Women’s Information Network website.
On October 21, 2009 an order issued by the Honorable Jerome Abrams was filed by the First Judicial District which sets an agenda for a scheduling conference on November 4, 2009 to discuss factors in the on-going Source Code dispute. Judge Abrams has been assigned to this matter by Order of the Chief and Judge of the First Judicial District pursuant to minn.stat. §484.69, subd.3. Minnesota’s First Judicial District is comprised of the following counties: Carver, Dakota, Goodhue, LeSueur, McLeod, Scott and Sibley.
This hearing will address how the First Judicial District Court of Minnesota will proceed in the Source Code Evidentiary Hearings in Implied Consent and Criminal matters. Key topics in source code evidence such as source code disclosures, timing of disclosures, identifying all experts for the defendant, petitioner and State, and expert opinion disclosures/reports along with additional fact disclosure will be determined. To read the complete agenda please see the Order Setting Agenda for Hearing dated 10.21.09.
This mass Source Code Scheduling Conference will more than likely take an entire day and will consolidate 286 civil cases and 238 criminal cases. While the idea of doing a ‘mass’ hearing seems logical at first – saving judicial resources, time and expenses – one has to ask – what expense does each individual face?
Dr. Staubus says the forensic science treatise published the results of a scientific study that demonstrates the Intoxilyzer 8000 has a poor ability to detect mouth alcohol.
To be scientifically valid and reliable, DWI breath tests must detect mouth alcohol in test subjects. Otherwise, the test result will read erroneously high. See Professor Harley Myler’s Affidavit for more information. In the study, a total of 23 breath-alcohol profiles were collected from subjects blowing into the machine every 5 minutes for 2 hours immediately following drinking. The INVALID SAMPLE indicator of mouth alcohol was only actuated in 5 of the 23 cases. And in those 5 cases the INVALID SAMPLE indicator only appeared during the first sample.
Table II shows the Intoxilyzer 8000 failed to actuate the INVALID SAMPLE response to mouth alcohol even when test result was elevated by as much as 0.127 g/210 L over the subsequent breath test result.
Authors (James Watterson and Kayla Ellefsen from the Forensic Toxicology Research Laboratory in Canada) also collected blood samples from these subjects.
Within a limited breath volume range of 2 to 3 liters, the author found the precision of the test results to be insensitive to breath sample volume. Considering that the minimum acceptable volume for the Intoxilyzer 8000 is 1.1 liters and many subjects, when told by officers to "keep blowing, keep blowing, ...”, can blow in excess of 4 or 5 liters, the small range of 2 to 3 liters and the limited number of samples was apparently designed not to detect differences due to breath volume that others have already demonstrated.
Authors concluded that (1) the Intoxilyzer 8000 generally underestimates the venous BAC and (2) "it is clear a mandatory delay before breath testing commences should be enforced to minimize the likelihood of falsely elevated BAC measurements." According to Staubus, however, they avoided concluding anything in regard to possible mouth alcohol contamination from Gastric Esophageal Reflux Disease (GERD).
In my opinion, CMI, the Intoxilyzer manufacturer, could not get it right in the Intoxilyzer 5000 and they still cannot get it right in the 8000. This machine does not produce accurate, reliable or valid results.
Anoka County became the latest county in the state of Minnesota to consolidate its breath test cases involving the battle over its source code.The hearing for civil cases is set for May 5, 2010.Criminal cases will be heard May 26, 2010.
AnokaCounty is in the Tenth Judicial District, which is comprised of Anoka, Chisago, Isanti, Kanabec, Pine, Sherburne, Washington, and WrightCounties.
The other counties that have consolidated cases are HennepinCounty, and the entire First Judicial District (comprised of Carver, Dakota, Goodhue, LeSueur, McLeod, Scott and Sibley counties).
Chief Judge of Ramsey County, Judge Gearing, sent a letter last month to Chief Justice Eric Magnuson requesting that the state consolidate all the Intoxilyzer cases within the state.Chief Justice Magnuson’s decision, if any, has been made public as of this writing.
As was previously reported in a previous blog (Source Code Review Process - See who's getting involved!) - As of October 16th, 98 Private Attorneys have each donated $1,000 to MSCJ’s source code review process.All of this is in addition to the tens of thousands the MSCJ membership has already expended leading the defense bar on this issue and the tens of thousands more it intends to commit as well.
Below is an updated listing of the coalition members. If your attorney is not on this list, he or she probably is not acting in your best interests. Urge them to contact the MSCJ today to become part of the coalition to review the source code.
New Jersey Attorney, Evan Levow, reported that today a judge threw out the 0.14 breath test result in New Jersey v. Chun.Chun was the name of the lead defendant in New Jersey’s state-wide battle over its new breath test machine.Mr. Levow has represented Ms. Chun throughout the process.
Although the first four and 1/2 years of pre-trial litigation focused on whether the Draeger Alcotest was scientifically reliable – which included analysis of the machine’s source code – the judged suppressed the test based on the officer's failure to follow proper procedures for changing the mouth piece. (Both the manufacturer and the head of the Alcotest program testified in the state wide hearings that the mouthpiece must be changed after each breath sample, which wasn't done.)
Tomorrow they try the impaired charge. We wish Mr. Levow and Ms. Chun the best of luck.Certainly no one can question the lengths to which Mr. Levow will go to give his clients the best possible representation.See Mr. Levow’s website for more information about the case.See my blog and website for more information about the fight over Minnesota’s breath test machine and source code battle.
Last weekend members of the Minnesota Source Code Coalition met with our experts to plan our examination of the software in Kentucky at CMI Headquarters. We were to begin by reviewing the hard-bound written copy of the source code which CMI was to provide under the Federal Source Code Settlement.
Upon opening the book, we were shocked to discover that CMI had blacked out 99 pages of the printed version of the software!
Although the federal settlement permitted CMI to redact passwords, our experts tell us CMI blacked out entire pages of the software. The redacted code includes critical information necessary to analyze the software.
Judge Frank ordered CMI “to make printed, hardbound copies of the complete Source Code (subject to the redaction of security and passcode features described herein) available in Minnesota.” (Click for Judge Frank’s entire order).
It is clear CMI is playing games. The company has made it tough enough by requiring our experts to travel to Kentucky to review the actual source code at their headquarters during regular business hours. Given the other limitations, we expect a review to take up to three months.
What other hurdles will CMI place in our path?
I suspect Minnesota judges will not tolerate this type of conduct and correctly determine that the state has not provided the source code to drivers under the Minnesota Supreme Court ruling of State v. Brunner.
As a result, thousands of DWI cases may be dismissed because of CMI’s chicanery.
Over the weekend the Minnesota Society for Criminal Justice (MSCJ) – the organization leading the defense bar’s source code coalition – has retained an additional expert to assist in examining the Intoxilyzer 5000 software.This is in addition to the five experts that were announced in a previous blog entry.The coalition may retainer additional experts in the future.
Harley R. Myler, PH.D., P.E.graduated from the Virginia Military Institute in 1975 with a double major in Chemistry and Electrical Engineering. Following military service as a missile systems officer in the US Army Air Defense Artillery, he attended the New MexicoStateUniversity in Las Cruces, New Mexico and received the M.S.E.E. degree in 1981 and the Ph.D. in Electrical Engineering in 1985. From 1986 to 2001 he was a professor in the faculty of the School of Electrical Engineering and Computer Science at the University of Central Florida in Orlando where he was named researcher of the year four times. In 2001 he accepted the Mitchell Endowed Chair at Lamar University in Beaumont, Texas as well as the chairmanship of the Drayer Department of Electrical Engineering. Dr. Myler has published four books, over thirty refereed papers and over fifty conference articles and holds two US patents. His research and teaching interests are in digital video, HDTV and broadcast technologies.
Mr. McShane points out that these roadside tests provide little information to a jury. Most officers do not conduct the tests properly. If the strict critera are not met as the National Highway Traffic Safety Administration (NHTSA) requires, the results are useless. The manual published by NHTSA says the tests are valid ONLY WHEN:
1. The tests are administered "in the prescribed, standardized manner";
2. The proper "clues" are used to assess the driver's performance; and,
3. The standardized criteria are employed to interpret that performance.
As Mr. McShane reminds us, the manual states, "IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED"!
Most importantly, the blog notes that the testing is based on faulty assumptions.
This is worth exploring. Consider the following:
Q: How many drivers are required to pass such physical tests before the state gives them a license, other than eye testing?
A. Physical Testing is not a general requirement in Minnesota.
Q: If the officer does not know how well a driver will perform without having anything to drink, what baseline does the officer compare the driver's performance?
A: The officer bases a driver's performance on how well the average person would do under ideal conditions.
Officers are trained not to use such testing for everyone. The manual acknowledges the SFSTs are not valid for people more than 50 pounds overweight, for example. But this is frequently ignored by both police and judges. (An example of this can be found in a recent newspaper article, "Judge Rejects Obesity Defense in DWI Trial.."
I strongly encourage anyone who plans on consuming alcohol to prearrange for a sober ride home. For those who don't, start practicing...
Minnesota Knows of Critical Software Flaw; Refuses to Install Patch
A recent Court Transcript provides new information into the Minnesota Bureau of Criminal Apprehension’s (BCA) concealment of critical flaws in the software that runs the Intoxilyzer 5000, the state’s breath testing machine. The transcript was produced as a result of testimony taken in the cases of State v. MH, and MH v. Commissioner of Public Safety in Crow Wing County. This is the first of a five-part series to publish the new revelations.
The August 26, 2009 transcript includes new revelations of the source code/software problem which erroneously accuses drivers of refusing to take an alcohol test. Refusal is a crime under Minnesota’s DWI laws, which I’ve addressed previously in my blog and on my website.
The transcript of the testimony of a BCA forensic scientist reveals:
The BCA is aware of the “potential” problem with the Intoxilyzer rejecting what should be an acceptable sample;
CMI, the Intoxilyzer 5000’s manufacturer, provided the BCA with a software patch to correct the problem;
The BCA did not test or install the corrected version of the software;
The state chose not to test or install the software was to avoid enflaming the “source code” issue;
The BCA employee speculates that cost may have also been a factor in the decision to not test or upgrade the flawed software.
Here is an Excerpt of the transcript:
Q: So we are aware of a problem with the current version of software that would reject what might be otherwise valid breath sample, right?
A: Potentially, not definitely.
Q: And the CMI provided BCA with a fix that purportedly corrected that problem, right?
A: Purportedly.
Q: And instead of testing it, the BCA shelved it, correct?
A: We did not test it, correct.
Q: And one of the reasons was because the BCA did not want to inflame the Source Code issue; is that right?
A: … [T]hat was at least part of the decision, but I don't know that that was the exclusive decision. I mean, there's also the incredible cost and time involved, and doing a software change, and ultimately we've been asking for money for three years for new instruments when we were hoping we would get that.
Q: What would be the cost of fixing this problem with the software?
A: The actual cost is in time and travel.
Q: How much would that be?
A: Several thousand, but I don't know.
Q: Several thousand dollars?
A: Several thousand, yes.
Q: How do you think that balances against people being erroneously deemed a refusal to test?
A: That would be my opinion. My opinion is I don't believe that I can tell you what the value of the State's money is. I don't think I can answer that question.
In order to help educate the judiciary, prosecutors and the public, this week my firm retained the services of Forensic Expert, Professor Alfred Staubus. Professor Staubus is nationally recognized as an expert witness and consultant in the area of forensic toxicology of alcohol and other drugs. He has more than thirty years of teaching, research, and providing public service. He is Emeritus Faculty at The Ohio State University, College of Pharmacy, and President at A & A Consultants, Inc.
We look forward to working with Dr. Staubus and welcome him to Minnesota.
I previously predicted Minnesota Judges to push to combine all of Minnesota's Intoxilyzer Source Code cases into a single case. Yesterday I received confirmation of that.
Personally, I believe consolidation is premature. Until our experts have reviewed the source code, we are unable to confirm the precise nature of the software errors. Consolidation would make sense if the experts find a fatal error in the program that renders the Intoxilyzer scientifically invalid in every case. This would be the case if CMI, the breath test manufacturer, has short-circuited software routines that perform scientific safeguards which are necessary to ensure that every breath test is valid, reliable and accurate. As I tweeted earlier this week, I predict we may find this sort of error in the program.
Short of global, fatal flaws effecting every test, however, the problems we are likely to find will be unique to each person. Such issues may include refusal by conduct, breath volume issues, interferents, GERD, diabetes, lung disease, etc. Consolidation would not be appropriate in the event we find source code errors affecting the test population differently.
I'll report on this blog the details of any consolidation as they emerge.
The Second Judicial District includes all of Ramsey County, with St. Paul as its county seat.
The First Judicial District has already consolidated cases involving the Intoxilyzer software.
Chief Judge Kathleen R. Gearin:
Minnesota Supreme Court Chief Judge Eric Magnuson:
The home state supreme court of Intoxilyzer Manufacturer CMI, Inc. has rejected a driver's claim for the source code under Kentucky's version of a subpeona duces tecum. The court refused to determine whether drivers are entitled to inspect the software under the constitution's confrontation clause. In doing so, the court reversed the state's lowe court of appeals decision in State v. House.
House does not affect Minnesota litigation. Our State Supreme Court has already ruled that the source code is discoverable in State v. Brunner. In addition, the prcedural rules of Minnesota are much broader than Kentucky. The House court noted that subpeonas are "meant to permit pre-trial inspection of evidence to be admitted at trial. It is not meant to be a discovery device..." Such is not the case in Minnesota.
The Minnesota Society for Criminal Justice (MSCJ) – the organization leading the defense bar’s source code coalition – has announced five experts it has retained to assist in examining the Intoxilyzer 5000 software. The coalition may retain additional experts.
Mark Lanterman, Chief Technology Officer, Computer Forensic Services, Inc., Minnesota;
Matt Heinsch, Senior Forensic Analyst, Computer Forensic Services, Inc., Minnesota;
Glenn G. Hardin, Forensic Toxicologist, The Tox Group, Inc., Minnesota.
Mr. Wisniewski has extensive experience in analyzing source code. Mr. Wisniewski issued the Base One report in the Chun case out of New Jersey, where he analyzed the source code for the Alcotest® -- a breath testing device manufactured and marketed by Draeger Safety Diagnostics, Inc.
Mr. Hardin was the supervisor of Minnesota’s Bureau of Criminal Apprehension’s (BCA) toxicology section until July, 2008. The BCA is the agency responsible for Minnesota’s breath testing program.
The fight over Minnesota’s Intoxilyzer 5000 continues to rage on.Now that CMI (the breath test manufacturer) has agreed to permit defense experts access to the breath test machine’s software, the defense bar has assembled a team of experts to analyze the source code.
Analysis will take time, however.I believe we’ll have our expert analysis completed before the end of January.Most courts are pushing cases out well into 2010 to accommodate our schedule.
In Minnesota’s First Judicial District, the judges are consolidating all the source code cases before Judge Abrams.The district is comprised of the following counties:Carver - Dakota - Goodhue - LeSueur - McLeod - Scott - Sibley.
A preliminary hearing will be held in November.Today, Judge Abrams said in court that about one-thousand cases have already been combined.
I believe this is just the start.Judges from other districts have begun to consolidate all of the cases before them.I predict the state will consolidate all such cases soon.Given the complexity of the issues involved and the uniqueness of issues I expect the analysis will reveal, consolidation is not the answer.
HennepinCounty has taken steps to streamline the process to obtain an order for the source code. Chief Judge Swenson has issued a standing order addressing this process. In civil cases -- where drivers challenge the revoked drivers' license -- attorneys must file a Petition for Judicial Review, a motion for discovery of the source code and an affidavit addressing the requirements of Underdahl II and Brunner. In criminal cases, attorneys must file a motion for the source code along with the same affidavit. The county does not require a memorandum. It is important to note that the county imposes time requirements in addition to those in the rules of criminal procedure.
I really want to know more than the state’s experts so that I do the best job possible for my clients. With greater knowledge, I am able to cross examine the Minnesota BCA lab scientists much more effectively.
I will be attending this course in November, 2009.
Overview
This course is designed for beginners and intermediate-level practitioners who want practical laboratory experience in gas chromatography (GC). The lectures—supplemented by problem sets, slides, and video presentations—provide the fundamentals needed to understand the technique and instrumentation involved in this powerful analytical tool. At the end of the class, you will have mastered the fundamentals of GC, participated in five hands-on laboratory sessions, performed reference and literature searches, and learned specialized techniques based on your specific interests.
Agenda
Day 1: GC Overview -- introduction to GC; GC instrumentation overview; practical GC theory: packed & Capillary; laboratory: GC Familiarization.
Day 2: Injection Techniques & Quantitative Analysis -- overview of sample introduction techniques; capillary inlet systems: split, splitless, on-column, large volume injectors; qualitative and quantitative analysis; laboratories: comparing injection techniques, troubleshooting injector problems, internal vs. external standard techniques.
Day 3: Columns -- packed column overview; capillary column technology; temperature programming; laboratories: column dimension and phase selection, laboratory: fast GC.
Day 4: Detectors -- overview of available detectors; details of FID & TCD; GC/MS; laboratories: GC detector operation, troubleshooting FID and TCD.
Day 5: Method Development & Temperature Programming -- temperature programming; fundamentals of method development; laboratory: develop a method for a completely unknown mixture.
With the knowledge and laboratory experience from this course, I will be Minnesota’s lab expert's worse nightmare.
2006: Of 70 DUI trials, 58 percent of defendants were convicted, and 42 percent were acquitted.
2007: Of 70 DUI trials, 56 percent of defendants were convicted, and 44 percent were acquitted.
2008: Of 47 DUI trials, 55 percent of defendants were convicted, and 45 percent were acquitted.
DWI CONVICTION TOTALS:
2007 DUI conviction rate: 93 percent
2008 DUI conviction rate: 95 percent
DWI PLEA DEALS:
The majority of DUI cases are resolved through pleas. In 2007, that was the case with 97 percent of DUI cases. In 2008, 94 percent of DUI cases were resolved through pleas.
These are Florida statistics. Our firm’s track record is even better than Florida!
I was unable to find such statistics from Minnesota. Why do you think Minnesota does not make them readily available?
If you find yourself charged with a DWI, don’t roll over – fight! You have a decent shot at winning if you hire a lawyer who is on the cutting edge of DWI and takes cases to trial. You have a zero chance of winning if you plead guilty.
We're fighting to expose Minnesota's source code lawsuit for the sham it is. To be successful, we need the help of the country's top experts. One of the most valuable team members is Tom Workman from Boston, Massachusetts.
1.Under normal circumstances an expert would need about three months to examine the Intoxilyzer’s source code. But, under the limitations of the proposed settlement, the same expert would need 30 years to conduct the same examination!
2.Known Fatal flaws in the Minnesota Software have and continue to produce erroneous results. The state crime lab is aware of the bugs in the source code, yet has refused to install the corrected version provided by CMI.
3.An expert in copyright law, Mr. Workman demonstrates how CMI transferred ownership of the software to the State of Minnesota under the original contract.
4.Federal patent statutes prevent CMI from asserting the software is a trade secret without violating federal law.
The Minnesota Source Code War would not be possible without the resolve of the members of the Minnesota Society for Criminal Justice; my dedicated staff at Charles A. Ramsay & Associates, PLLC; and Thomas Workman. Also, thanks to Attorney Ryan Garry for generously donating his time and expertise. Please obtain Mr. Workman’s permission before using his declaration.
Check back soon for more information, documents and analysis as the Minnesota Source Code War continues to rage …
Minnesota's breath test machine's software is broken. Roseville attorney Chuck Ramsay has exposed bugs in the source code, and is fighting for the right to have experts independently examine the software. The state of Minnesota and CMI, the breath test manufacturer, are fighting to keep it a secret.
Last week Fox9 ran a news story of the Intoxilyzer source code battle.
Last week the Minnesota Commissioner of Public Safety, CMI -- the Intoxilyzer manufacturer, and my firm filed more documents in federal court.
CMI and the Minnesota Attorney General are asking a federal judge to issue a permanent injunction to keep drivers' experts from independently reviewing the Intoxilyzer software.
Chuck Ramsay argued State of Minnesota v. Netland on September 10, 2008. The Minnesota Supreme Court must decide the constitutionality of the state's DWI-DUI statute which criminalizes refusal to submit to an alcohol test.
The issue is particularly difficult because Ms. Netland did not refuse to submit to a test. The breath test machine -- Intoxilyzer 5000 -- would not accept her breath sample. The police officer believed she was "playing" with the machine. Ms. Netland was persistent and demanded a blood test. The officer refused to give her either a blood or urine test.
Not willing to give up, Ms. Netland called an independent testing company while still in jail. The company collected her alcohol sample and had it analyzed. The result: .03 -- well under the legal limit of .08!
We now know that the source code was to blame. See the sections about Inferno and Smoking Gun. Unfortunately, state officials continue to use the same broken software. Innocent people continue to be hurt.
The attorneys at Ramsay & Associates, PLLC, pride themselves on keeping on the cutting of DWI / DUI defense. Last week attorneys Chuck Ramsay and Dan Koewler learned from some of the other best lawyers in the country at a three-day continuing legal education course in Las Vegas.
The classes included the following topics:
Reversing the Call on the Field: Persuading the Appellate Court
- Rod Kennedy
Chemical Test Discovery: Getting a Complete Scouting Report
- Troy McKinney
Ethics Jeopardy: What is the Right Thing to Do?
- Bruce Kapsack
Gearing-Up Your Offense: Suppressing the Evidence
- John Wesley Hall
What We Can Learn from the Inquest of the Death of Princess Diana
- Dr. Robert Forrest & Jess Paul
Field Sobriety Tests-- Running Through the Drills
- Gus McDonald
Advanced FSTs-- For Whom Are They Designed?
- Mimi Coffey
Was Your Client Tested on a Broken Machine?
- Tom Workman
Scoring the Winning Touchdown with Your Closing Argument
- Les Hulnick & Vic Pellegrino
Voir Dire of the Expert
- Dr. SunWolf
Blood Lab Secrets
- Dr. Robert Forrest & Jess Paul
On the last day of the program, the attorneys broke down in to small groups for the following workshops:
-Advanced Cross-Examination Techniques
Instructed by Mike Hawkins
-Perfecting Your Opening & Closing
Instructed by Les Hulnick & Vic Pellegrino
-Crossing the Officer on FSTs
Instructed by Troy McKinney, Mimi Coffey, and Steven Oberman
- Auto Brewery Syndrome
Instructed by Dr. Robert Forrest
-Bring Your File
Instructed by Jess Paul
-Challenging Drug Recognition Experts
Instructed by Judge Rod Kennedy and Dr. Robert Forrest
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Read the above quote from the Minnesota Court of Appeals. Ignore, for the moment, that the Court incorrectly describes both the odor of alcohol and bloodshot/watery eyes as “common indicia of intoxication” (because they are actually nothing more than indicia of alcohol consumption). Instead, focus on what those two sentences mean, because it’s scary.
One common indicia of alcohol consumption is “odor of alcohol.” Nearly every DWI police report will start with a mention of this odor, usually as soon as the officer gets within five feet of an alleged drunk driver. And it won’t just be an “odor.” It will be further defined by the officer, usually as a “moderate” odor, sometimes a “strong” odor, and on special occasions as an “overwhelming” odor. Sounds like damning evidence, right? It is, unless (like us) you know exactly how to fight in DUI cases..jpg)
Whenever drivers are arrested for DWI, the police will write a report that describes the reasons why, in their opinion, the driver was impaired by alcohol. Nearly every officer will describe an “odor of alcohol” alongside other observations like “bloodshot, watery eyes” and “slurred speech.” Judges, prosecutors, and even some defense attorneys will incorrectly describe these observations as “indicia of intoxication,” implying that each of these confirms that someone is drunk. This could not be further from the truth..jpg)
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We blogged last week regarding yet another problem that affects first void urine alcohol tests (F-VUAT) that are tested by the Minnesota Bureau of Criminal Apprehension. In one case, we re-tested a urine sample that was reported to have an alcohol concentration of .09. Our retest, performed at an accredited laboratory, reported a result of .05 – significantly lower than .09, and well below the legal limit of .08.
A senior forensic scientist at Minnesota’s Bureau of Criminal Apprehension (BCA) has come forward with shocking revelations. According to the sworn testimony of the 25-year veteran:
There are .jpg)
Shoot First – Ask Questions Later.jpg)
The issue in the case is whether the trial court erred by denying the driver the right to have a so-called .jpg)
Neither the 
This percentage increases with the level of alcohol. At an alcohol concentration of 0.20, the measurement uncertainty is even greater. One must have a thorough understanding of complicated mathematical and scientific concepts to use his formula. For more information, see his 
Currently, the 
The use of urine tests for DWI’s in Minnesota received yet another endorsement from the Court of Appeals today. At issue in the case of .bmp)
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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..jpg)
Last month, Judge Abrams issued his .jpg)
Last month the Minnesota Supreme Court .jpg)
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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. .jpg)
Our firm has been at the forefront of the fight against urine tests, demonstrating again and again exactly why urine testing has no place when it comes to enforcing DWI laws. In every case we present decades of scholarly articles and learned treatises rejecting urine testing. .jpg)
The “Urge to Purge” memorandum tries to imply that the .jpg)
It appears the state seeks to use their new “science” to refute the well-founded legal position that the police need a search warrant to force a urine test. Because alcohol doesn’t dissipate in the bladder, there is no immediate need to obtain a sample, as in the case of breath tests. The state’s “urge to purge” memorandum implies that a person will wet their pants before a cop can get a warrant. There is no science to back up the state’s claim. .jpg)
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