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

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 knew for 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 An agency dedicated to sound science and fair convictions would not cling to an outdated and discredited method of urine testing to convict Minnesotan drivers of DWI.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.

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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 also required 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.

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The State Bar Association has created a new certification for Minnesota Lawyers:  Specialist in Criminal Law.  The Association has not created DWI or DUI Specialization for Minnesota Attorneys.

Minneapolis criminal defense attorney Andrew Birrell, who chaired the committee that worked on the criminal law certification project, said that the specialist designation is meant to be a meaningful thing. “We think the exam is fair and will recognize attorneys who are very well qualified to represent people accused of crimes… and to represent the government [as prosecutors]”, he said. “We’re hopeful people will avail themselves of the opportunity.”

The standards and requirements for Certification of lawyers as Criminal Law Specialists include:

1. Demonstrating “Substantial Involvement in Criminal Law Practice.” This is includes demonstrating five years of continuous practice in the area of criminal law with 25% of their full-time practice devoted to participation in criminal law;

2. Passing a written exam to demonstrate sufficient knowledge, proficiency and experience in criminal law;

3. The standards require Lawyers to show trial experience direct and cross examination of a lay witness, time in trial, contested hearings and by providing writing examples;

4. Lawyers are also required to provide references of Judges, opposing counsel and others.

5. The board also ensures the lawyer meets the ethical requirements.

Certification is good for a period of six years, unless the Specialist is decertified as provided for under these Standards. Specialists are required to be recertified at the end of every six year period.  During that period, the lawyer must maintain minimum continuing legal education requirements.   After six years, the lawyer must be recertified in order to maintain the designation.

This first exam for criminal law specialist is Saturday, April 24, 2010.

I clearly meet the litigation requirements and plan to sit for the exam in April.

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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?” 

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.

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In Minnesota, to beat a DWI, a good criminal defense attorney needs to win not once, but twice. That means succeeding on the criminal case (where the penalties include possible jail time, fines, and years of probation), and also winning the separate Implied Consent case (which deals solely with a person’s driver’s license and license plates).  There may even be a third case – beating the police forfeiture of the person’s motor vehicle.

Last week, a Sherburne County judge found in favor of our client on his Implied Consent case.  This wiped our client’s driving record clean of any “alcohol-related” revocation and protected him from having to drive around with “whiskey plates.” We were able to win on this case without even getting into the merits of the blood test that my client took – and we did it by convincing the judge that the police unconstitutionally stopped my client.

The police pulled our client over because, supposedly, he made a wide turn. Specifically, the police claimed that our client started his turn in one lane of traffic, and finished his turn in another lane, and that this was a traffic violation worthy of being pulled over for.

Seems like a valid basis for a stop, right? Most people would think so, but then, most people would be WRONG. Besides the obvious fact that many people (including police) make these types of turns every day, a careful reading of Minnesota Statutes make it clear that such a turn ISN’T EVEN ILLEGAL!

That was an argument that Ramsay Law Firm lawyer, Dan Koewler, and I brought to the judge, and that was the argument that won the case. Because the court ruled that the stop was unconstitutional, numerous other issues we raised did not even need to be addressed (it only takes one winning argument to win an entire case).

This just goes to show that when you’ve got an experienced attorney dedicated to beating the entire DWI case, you can get results based on issues that other attorneys might not even consider. That’s why we at our law firm pride ourselves on carefully analyzing every case, to make sure that every possible opportunity to win our client’s case is fully litigated.

We regularly beat all types of DWI cases, on a variety of grounds.  If you’ve been charged with a DWI or DUI as a result of a blood, breath or urine test, call Ramsay Law Office immediately.

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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.

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Our constitution protects us against unreasonable police seizures.  As a result, in a DWI case, the police officer’s reason for the stop must be constitutional.  Otherwise, everything the officer learns as a result of the stop must be thrown out and cannot be used against my client.

Earlier this year my client was stopped by police officer and arrested for DWI.  My client (“Mark”) was driving on a divided highway, with two lanes of traffic in each direction. He came to an intersection which was also a divided highway with two lanes of traffic in each direction.

A deputy sheriff saw Mark turn left from the leftmost turn lane into the right driving lane of the intersecting roadway.  Upon seeing this, the deputy turned on his emergency lights and stopped Mark’s vehicle for what he believed to be an illegal turn.  The officer eventually arrested Mark for DWI.

What if the officer was mistaken about the law?  Is the stop still legal?  If not, what happens?

Both the Fourth Amendment to the United States Constitution and Article I, Section 10 of the Minnesota Constitution guarantee the "right of the people to be secure in their persons, houses, papers, and effects" against "unreasonable searches and seizures." Any evidence obtained subsequent to the illegal seizure must be suppressed.

To justify a warrantless investigative seizure, a police officer must be able to articulate some objective basis that the individual seized has been, is presently, or is about to be, engaged in criminal activity. This reasonable, articulable suspicion must be present at the moment a person is seized, and cannot be determined after the fact. Simple good faith on part of officer is not enough. Thus, an officer who makes a traffic stop must have a “particularized and objective basis for suspecting the particular persons stopped of criminal activity.”  While a stop may be based on the suspect’s violation of traffic laws, there must be proof that the stop was not the product of mere whim, caprice, or idle curiosity.

When looking at an officer’s basis for stopping a motorist, the focus of the court is on whether there is any, “objective basis for the belief that the defendant was engaged in criminal activity.” This means that, “an officer’s mistaken interpretation of a statute may not form the particularized and objective basis for suspecting criminal activity necessary to justify a traffic stop.

In this case Mark violated no traffic laws, whatsoever. There was no evidence that he was violating any speeding laws, nor traveling dangerously slow. All equipment on his vehicle was perfectly functioning. He did not begin driving evasively the moment he saw the police, rapidly pull of the road, or perform a sudden U-Turn.

Instead, the deputy believed that Mark violated a traffic law by turning left from one lane into another. The only applicable Minnesota statute to this type of conduct would appear to be Minn. Stat. §169.19, subd. 1(b), which provides:

“Approach for a left turn on other than one-way roadways shall be made in that portion of the right half of the roadway nearest the centerline thereof, and after entering the intersection the left turn shall be made so as to leave the intersection to the right of the centerline of the roadway being entered. Whenever practicable the left turn shall be made in that portion of the intersection to the left of the center of the intersection.” (Emphasis added).

Mark’s driving could not have been violated the statute, as the statute merely advises drivers to perform left turns in such a manner – it is not a requirement. This conclusion comes from a plain and honest reading of the statute, and numerous district court judges have agreed, holding that a left turn that does not comply with the advisory language of the law and therefore cannot be the basis for a lawful traffic stop.

Regardless of the deputy’s honest belief that Mark’s left turn was illegal, the truth is that it was not.  The judge will rule the stop unconstitutional and as a result, throw out the entire case. 

Police officers give many reasons to stop a vehicle.  Not all of them are constitutional and should be challenged.  If successful, the driver should prevail in any DWI case. Some of the unconstitutional reasons may be:

1.  Certain turn signal violations;

2.  Anonymous tipsters or callers;

3.  equipment violations;

4.  suspicious vehicles;

5.  license plate type;

6.  weaving within a lane;

7.  headlights;

8.  time of day;

9.  closed businesses; 

10.  Welfare checks and many, many others.

If you have been arrested for DWI, we can help.  Call us immediately for a free consultation.

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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.

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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?

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As was previously reported in a previous blog (Source Code Review Process - See who's getting involved!) - As of October 16^th, 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.

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New Court Transcript: A Five-Part Series – Pt. 1:

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:

1. The BCA is aware of the “potential” problem with the Intoxilyzer rejecting what should be an acceptable sample;

2. CMI, the Intoxilyzer 5000’s manufacturer, provided the BCA with a software patch to correct the problem;

3. The BCA did not test or install the corrected version of the software;

4. The state chose not to test or install the software was to avoid enflaming the “source code” issue;

5. 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.

A complete transcript will be posted on Ramsay Law Firm’s website, soon.

Minnesota’s Intoxilyzer: A flawed DWI Breath Test Machine

New Court Transcript: A Five-Part Series

To Come:

Part 2:  The Current Software:  A Change in Breath Sample Acceptance Criteria

Part 3:  -What Does It Mean?

Part 4:  -A Change in Breath Testing Procedures: Are Police Properly Conducting Tests?

Part 5:-BCA Concealment:  The Public, Courts

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Michigan Attorney, Patrick T. Barone, reminds us all that prosecutors have ethical obligations, even in a DWI case.  In his article, A DUI Prosecutor Must Help Prove That You Are Not Guilty, Mr. Barone provides details of prosecutors' ethical obligations to provide the defense evidence of innocence.  The article also describes the constitutional role of both prosecutors and devense attorneys.

Mr. Barone is one of Michigan's leading criminal defense lawyers.  His article serves a valuable reminder to prosecutors, judges and the public, in Michigan, Minnesota and all around the country.

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MINNESOTA SOCIETY FOR CRIMINAL JUSTICE

The Premier Minnesota Criminal Defense Lawyers Organization Representing those charged with DWI

THE DWI DEFENSE SEMINAR FOR MINNESOTA - 2009

Friday, June 19^th 2009, At the Northland Inn

7025 Northland Drive, Brooklyn Park, MN 55428

800-441-6422 or 763-536-8300

AGENDA

Time                                             Session Title                                        Presenter

8:30 a.m. Registration and Welcome ............................................. Thomas Shiah

9:00 a.m. Minnesota DWI: Top 10 Things For Defense ........ Douglas Hazelton

9:45 a.m. Caselaw and Legislative Update 2008-09..................Jeffrey Sheridan

10:30 a.m. Morning Break ........................................................................................

10:45 a.m. Ethics and DWI Defense ...........................................Thomas Plunkett

11:15 a.m. Pending DWI/IC Challenges.............................................Jeffrey Ring

12:00 p.m. LUNCH in America’s Harvest Restaurant (provided) .......................

1:00 p.m. Challenging a Blood Test ........................................To Be Announced

2:00 p.m. Ignition Interlock ............................................................... Ed Cohen

2:30 p.m. Afternoon Break .......................................................................................

2:45 p.m. Challenging a Breath Test ............................................Mary McMurray

3:45 p.m. Trial Strategies ............................................................Samuel McCloud

4:30 p.m. Closing Remarks and Happy Hour .................................Thomas Shiah

Materials will be on CD only, attendees are encouraged to bring their laptop computers.

CLE Credits will be applied for. Please note that session topics and speakers are subject to change.

FOR REGISTRATION INFORMATION, CLICK LINK BELOW.

MSCJ SEMINAR- JUNE 19^TH. 2009 – The Northland Inn,     Brooklyn Park, MN

WWW.MSCJ.ORG

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I've continuously blogged about the sad state of our country's police labs. Now, the Senate Committee on the Judiciary has scheduled a hearing on “The Need to Strengthen Forensic Science in the United States: The National Academy of Science's Report on a Path Forward” for Wednesday, March 18, 2009 at 10:00 a.m.

Register for the webcast of the hearing.

Let’s hope our citizens begin to take notice of the shoddy work being done in our crime labs.

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A Detroit, Michigan on-line news site reported this week that the massive errors found in Detroit Crime lab to be the “tip of the iceberg.” According to the report, the chief prosecutor has identified 147 cases of convicted and imprisoned people that will require the retesting of evidence as part of the investigation into the now - closed Detroit police crime lab – unveiling the first of potentially thousands of cases that are at risk of unraveling because of mishandled evidence.

The Detroit crime lab is not alone according to a report by an independent agency, the National Research Council.   The report reveals problems in West Virginia where the State Police found more than 100 convictions are in doubt due to repeated evidence being falsified. More than ten convictions have already been overturned. In Oregon, a man settled for two million dollars after the government erroneously said his fingerprints matched those found in the 2004 train bombings in Madrid, Spain. In Maryland, a judge declared fingerprint evidence untested and unverifiable and suppressed the evidence. 

I previously have noted in my blog reports of similar errors from around the country. I have also noted the errors in Minnesota as well.

See previous blogs:       Defective Breath Test Software Jails Innocent Drivers  posted Oct. 2008

                                   Judges Find Washington Crime Lab Untrustworthy     posted May 2008

The problem will continue in Minnesota and elsewhere unless and until government officials, judges, prosecutors and citizens stand up to oppose such sloppy government procedures. 

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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. 

Last week I filed Mr. Workman's declaration with the federal court.  It is a real eye-opener:

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.

I’ve posted Mr. Workman’s sworn declaration here.  

The Minnesota Source Code War would not be possible without the resolve of the members of the Minnesota Society for Criminal Justice; my dedicated staff at Charles A. Ramsay & Associates, PLLC; and Thomas Workman. Also, thanks to Attorney Ryan Garry for generously donating his time and expertise. Please obtain Mr. Workman’s permission before using his declaration.

Check back soon for more information, documents and analysis as the Minnesota Source Code War continues to rage …

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Since at least 2004 Minnesota's breath test machine has erroneously found innocent drivers of violating the state's impaired driving laws. A programming error in the Intoxilyzer 5000 software falsely reports drivers of blowing an insufficient amount of air into the machine for analysis. Under state law, a person loses their license for at least one year and even first time offenders are put in jeopardy of serving time in jail, paying huge fines and forced supervised probation. Other penalties may include loss of license plates and vehicle forfeiture. Innocent drivers also face collateral consequences such as loss of job, and can destroy an entire family's way of life.

"Smoking Gun"

Earlier this year I discovered evidence of the problem. The Minnesota BCA alerted CMI, the breath test machine's manufacturer, that software installed in 1994 made it more difficult or even impossible for some people to give a sufficient sample.

See Smoking Gun Email

In response, BCA scientists issued sworn affidavits dismissing the email, claiming the manufacturer had satisfactorily addressed the problem. Implying that innocent people would not be affected, the documents conclude no material changes were made and the test results continue to be sound science.

See Affidavits of BCA Scientists David Edin and Karin Kierzak

Newly discovered documents seem to refute the BCA's claim. Emails show that in April, 2007, CMI acknowledge the machine's erroneous rejection of otherwise valid samples and provided a corrected version of the software. With full knowledge of critical flaws in the machine's software, the BCA has refused to install the corrected software.

In 2006 defense attorneys began demanding access to the Intoxilyzer source code, the human readable software which is compiled into a machine readable language. The commissioner believed the lawyers' so-called "source code" challenge would quickly blow over. Any software changes would prolong the litigation and add expense and aggravation.

The "source code" issue didn't blow over. It blew up.

Sources: AG's Office Involved in Cover-Up Conspiracy

According to the sources, the Office of the Attorney General was also involved. The AG office, which provides legal counsel and representation to the Commissioner, either acquiesced or approved of the plan to keep the software as it to avoid exacerbating the source code issue.

See Inferno Documents Showing CMI Knows of Broken Software, Yet Refuses to Upload Fix

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