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

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.

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 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.

Here is the Minnesota Bureau of Criminal Apprehension's carefully-worded explanation of this error.  It can also be read below.

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

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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 31^st 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.

Please read about part one of this blog post here.

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Today is the first blog in a two-part series regarding Minnesota’s forfeiture laws. As any polished attorney knows, most DWI arrests included numerous “collateral” punishments. You will lose your license; you may become ineligible for car insurance; you may even lose your job. However, what few people know is that it’s also likely that the State is going to seize your car and sell it for profit.

These “vehicle forfeitures” aren’t just reserved for the five-time repeat offenders that make the news. In fact, even a first time DWI arrest can result in vehicle forfeiture . . .

Example: you and your significant other are driving to the babysitter’s after going out for dinner with friends. You had two glasses of wine with your meal, but don’t feel the slightest bit tipsy. You pick up your 8 year old child, and head for home. However, before you get there, the police pull you over for “weaving within your own lane.”

The officer asks if you had anything to drink, and you honestly answer “yes.” (It’s not a crime to drink and then drive in Minnesota - it’s only a crime to be impaired). You are told to step out of your car and perform some field sobriety tests. You do fine, but the officer thinks otherwise, and arrests you for DWI - in front of your family.

You get taken down to the police station and told that you need to submit to a breath test on the Intoxilyzer 5000. You’re nervous, but at the same time anxious to pass the test and rejoin your family. However, no matter how hard you blow, that Intoxilyzer won’t “accept” your sample. The officer is yelling in your ear to “blow harder” but no matter what you do, the machine keeps calling your sample “deficient.” After four minutes, the officer tells you that he’s going to charge you with “refusal to test.”

You can cry, plead and beg at this point, but the fact is that you are going to be charged with a crime - and not just any old crime - an enhanced crime. Because you had someone under the age of 16 inside your vehicle, and because you “refused” to test, you are going to be charged with a gross misdemeanor, 2^nd degree DWI.

And woe to someone who has even one DWI conviction already on their record. With one conviction on your record, it’s very easy for a DWI arrest to turn into a situation where the State is going to sell your car for profit.

Now, wait. The police officer that chose to arrest you can take your car, immediately, and can then sell that car for profit before you even get to complain to a judge? That’s right . . . although if you have a good attorney in your corner, you can still get your car back.

Be sure to check back Monday for an explanation of what you can do to protect your rights to your vehicle.

Please read part 2 of the blog here.

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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.

Update: Download the pdf of the Crime Lab's Report of Urine Test Errors

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The Minnesota Department of Public Safety (DPS) announced its “2010 DWI Enforcer All-Stars” today and will introduce them before the Minnesota Twins’ baseball game at Target Field. 

The group is comprised of 30 law enforcement officers from the Twin Cities' metro area and Greater Minnesota. The DPS says they were chosen “for outstanding service in enforcement and in prosecution of impaired driving.” 

As I’ve noted previously, the DPS seems concerned more with quantity than with quality of service. According to the Minnesota DPS press release, “Minnesota State Patrol Trooper Jack Tiegs is the state’s Most Valuable Enforcer, leading all law enforcement with 133 DWI arrests in 2009.”

As with previous lists, this list recognizes officers with the greatest number of stops and arrests. This troubles me. The criteria should be based on the quality of the officers’ performance, rather than mere numbers.

A good example of this occurred last week during a hearing in Red Wing, Goodhue County. The arresting officer was very candid in his testimony, admitting to the weaknesses in the case. It was apparent that he felt his job is not solely to lock up people who have been drinking and driving and to take their licenses to drive, but to uphold the constitution. I do not know how the case will turn out for my client, but I as I told the officer after the hearing, he should be commended either way for his professionalism. Unfortunately, not all cops would have testified similarly. Many would have fudged the facts or their testimony to make the case stronger against my client and to make themselves look better.

The majority of Minnesota officers perform their jobs better than expected under harsh conditions. Yet they do so go about their duties putting justice and service to the public first, relegating their own interests second.

These officers are the true ALL-STARS!

They are polite with the public while ensuring that justice is served. These police officers understand their arrest numbers don't ensure public safety. They testify truthfully, and take their jobs seriously. Unfortunately, they go unrecognized. This "honor" by the department of public safety discourages such behavior, while encouraging injustice and promoting further distrust of our valuable peace officers.

The DPS also recognized three prosecutors as part of the 2010 DWI Enforcer All-Stars. While it appears the DPS chose the officers with the greatest number of DWI arrests, it did not reveal the criteria for the prosecutors. My guess is that the DPS did not recognize them for using common sense in exercising their discretion whether to pursue a criminal conviction, license revocation or vehicle forfeiture.

According to the DPS press release, the following were named based on the number of their 2009 arrests:

Twin Cities Police Officer “DWI All-Stars” and the number of 2009 DWI arrests:

·                     Danny Bouavichith, Savage Police Department—53 

·                     Officer Bill Hammes, Coon Rapids Police Department—63

·                     Officer Joshua Hunter, Corcoran Police Department—60

·                     Officer John  Kolar, Shakopee Police Department—87

·                     Officer Scott Langner, Maplewood Police Department—72

·                     Officer Gabe Lee, Blaine Police Department—73

·                     Trooper Eric Micek, State Patrol—106

·                     Trooper Pat Miles, State Patrol—110

·                     Trooper Brian Reu, State Patrol—104  

·                     Officer Santiago Rodriguez, St. Paul Police Department—78

·                     Officer Richard Schwab, South St. Paul Police Department—102

·                     Officer Dan Schyma, Apple Valley Police Department—57

·                     Officer Nic Stevens, Lakeville Police Department—89

·                     Trooper Jack Tiegs, State Patrol—133

·                     Trooper Ben Uzlik, State Patrol—121

Greater Minnesota DWI Enforcer All-Stars and number of 2009 DWI Arrests:

·                     Trooper Scott Barstad, State Patrol—82

·                     Officer Anthony Bermel, Pike Bay Police Department—23

·                     Trooper Garret Bondhus, State Patrol—118 

·                     Deputy Tom Coulter, Blue Earth County Sheriff’s Office—54

·                     Trooper Jason Engeldinger, State Patrol—51

·                     Officer Steve Estey, Virginia Police Department—39   

·                     Deputy Lyan Karger, Beltrami County Sheriff’s Office—80 

·                     Officer Adam Kladivo, Hibbing Police Department—46

·                     Officer Scott Kostohryz, Moorhead Police Department—42  

·                     Officer Brian Martin, Blue Earth County Sheriff’s Office—61

·                     Trooper Lucas McArthur, State Patrol—96

·                     Deputy Dan Mott, Mille Lacs County Sheriff’s Office–53

·                     Officer Ryan Sayre, Hutchinson Police Department—44  

·                     Officer Jean Valere, Rochester Police Department—48 

·                     Officer Darin Vossen, Worthington Police Department—51

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Tomorrow Justice David Stras begins his new job as Minnesota Supreme Court Justice. I thought it appropriate to address my view of the makeup of the court and how the change may affect the court’s direction.

The defense bar (and those for whom we fight) has endured for the last four years the “Pawlenty Four” (“P4”) – a bloc of conservative justices carrying the majority and appointed by the lame-duck governor. Until recently, the P4 took the majority in several close cases. In a number of cases, including State v. Netland (2009), Laase v. 2007 Chevrolet Tahoe, and State v. Peck (2009), the minority wrote particularly scathing dissents.

Last month the Minnesota Supreme Court voted 4-3 in Governor Pawlenty’s unallotment case. The governor lost when retiring Chief Justice Magnuson seemingly switched sides and went against the governor. This could have indicated a “shift” in the Chief Justice’s stance, and provided some hope that the Court would perhaps return to a less activist role in Minnesota. Unfortunately, Chief Justice Magnuson had announced he was retiring earlier this year.

After the unallotment case, the governor named Justice Magnuson’s replacement. He elevated Justice Gildea – who wrote the unallotment dissent – to Chief Justice, and appointed David Stras to fill the new vacancy. Professor Stras, a young law school professor had written an Amicus Curiae (“Friend of the court”) supporting Pawlenty in the unallotment case. 

Most court observers believe Pawlenty’s new appointments will have no effect on court’s conservative majority. William Mitchell College of Law Professor Peter Knapp believes the appointments signal "no dramatic change in direction of the court." Pawlenty's picks keep high court tilting right. New justice and chief sided with governor's solo-handed budget cuts, the DFL points out. (Star Tribune).

Professor Stras served as law clerk to conservative U.S. Supreme Court Justice Clarence Thomas and serves on the executive committee of the conservative Federalist Society.

Stras said he believes “the role of judges is a limited one, safeguarding liberty and protecting the rights of all citizens.” Reporters asked whether he shares Thomas’s philosophy of the law. Stras called Thomas ‘my mentor. ... But we have differences in our approach.’”

Reporters and court observers questioned how to interpret Stras’ comment. Stras suggested that review of his “scholarly papers” may provide some insight.

So that’s exactly what I did.

Stras said he is particularly proud of an article he spent years researching, challenging former U.S. Supreme Court Justice Pierce Butler's reputation as a one-dimensional conservative by citing his pro-defendant rulings, so that’s where I started.

In Pierce Butler: A Supreme Technician, Vanderbilt Law Review, vol 62 (2009), Stras characterizes Butler as having “surprisingly pro-defendant criminal rights positions.” P. 697. In attempting to debunk Butler’s reputation as conservative, he portrays Butler’s views as “liberal” in criminal cases but conservative on economic issues. See FN183. He thoughtfully explains that Butler broadly construed the Fourth Amendment, in defense of individual liberties. P. 722, and applies this same ideology to defendant’s Sixth Amendment rights. P. 723.

Stras noted that “Justice Butler was a ‘stickler for the rights of criminals,’” citing Chief Justice Hughes. P. 723. After analyzing this article, Stras’ thesis is clear: He makes a scholarly case that carefully debunks Justice Butler’s reputation as conservative when it comes to criminal law issues.

One quote is particularly telling:

As a Supreme Court Justice, Butler’s jurisprudence was deceptively nuanced. Those who categorize him merely as one of the so-called “Four Horsemen of the Apocalypse” fail to give him credit for the intricacy and sophistication with which he approached constitutional questions. To be sure, Butler often took positions that were “favorable toward constitutional protection of economic liberties through judicial restriction of government action.” But it is far too simplistic to assert, as some commentators have, that Butler was the “epitome of ultra-conservativism” or that he was “insensitive to matters of civil liberties.” To the extent that labels are helpful in describing Butler, previous commentators have largely mischaracterized his jurisprudence by widely labeling him as a “conservative.” For example, Butler took stereotypically libertarian (or even liberal) positions in cases involving the Fourth Amendment and the rights of criminal defendants.

P. 717-18 (footnotes omitted).

Does this mean that Stras, despite being appointed to act as a “conservative” justice on a “conservative” court, may actually be a wild card? Is it possible that the P4 could suddenly become the “P3" and end up dissenting in upcoming cases penned by Stras himself? It’s too soon to tell, but based on my research, I don’t see Stras as the type of justice who would indubitably fall in line with the other Pawlenty appointees.

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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 we warned 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.

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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, Inc. – Owensboro, Kentucky

CMI, the manufacturer of the Intoxilyzer 5000 and Intoxilyzer 8000, is holding its 26^th 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, Inc. – St. Louis, Missouri

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.

Minnesota County Attorneys Association – St. Paul, Minnesota

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. 

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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.

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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.

Check out our other postings on this issue.

Part 1: Freedom through Independence: Crises in Our Nation’s Forensic Science System

Part 2: Freedom through Independence: Erroneous DWI Blood Test Results

Part 3: Freedom through Independence: Erroneous DWI Urine Test Results

Part 4: Freedom through Independence: Erroneous DWI Intoxilyzer 5000 Breath Test Results

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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

FRIDAY, JUNE 11, 2010

CHATEAU AT MEDICINE LAKE

To enroll: Download the MSCJ DWI CLE Brochure

10715 South Shore Drive, Medicine Lake, MN 55441

To enroll: Download the MSCJ DWI CLE Brochure

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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.

Part 1: Freedom through Independence: Crises in Our Nation’s Forensic Science System

Part 2: Freedom through Independence: Erroneous DWI Blood Test Results

Part 3: Freedom through Independence: Erroneous DWI Urine Test Results

Part 4: Freedom through Independence: Erroneous DWI Intoxilyzer 5000 Breath Test Results

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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.  

See our previous postings in the series:

Part 1: Freedom through Independence: Crises in Our Nation’s Forensic Science System

Part 2: Freedom through Independence: Erroneous DWI Blood Test Results

Part 3: Freedom through Independence: Erroneous DWI Urine Test Results

Part 4: Freedom through Independence: Erroneous DWI Intoxilyzer 5000 Breath Test Results

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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.

Part 1: Freedom through Independence: Crises in Our Nation’s Forensic Science System

Part 2: Freedom through Independence: Erroneous DWI Blood Test Results

Part 3: Freedom through Independence: Erroneous DWI Urine Test Results

Part 4: Freedom through Independence: Erroneous DWI Intoxilyzer 5000 Breath Test Results

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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.
• The Houston crime lab has had numerous failures.
• 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

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It is becoming harder and harder for an attorney - any attorney - to successfully represent clients as a “general practitioner.” Some areas of law, especially criminal law, simply demand that quality attorneys specialize in their practice in order to be successful and effective.

We continue to see the problems that occur when an otherwise competent attorney chooses to dabble in criminal defense work. A client will hire the “family attorney” or a general practitioner to represent them in their criminal case, only to find out that this otherwise great attorney did a terrible job protecting their interests.

The Supreme Court recently issued a decision highlighting these problems. In Padilla v. Kentucky, the Court recognized that every criminal defense attorney also needs to understand the intricate interplay between the criminal law and other areas (civil law, immigration law, and family law to name a few), or else their clients will simply be “left to the mercies of incompetent counsel.”

That’s why we focus solely on criminal defense; it’s the only way to ensure that we can provide the best possible representation for our clients. If you’re charged with a crime, you don’t just need an attorney who understands the rules of evidence or can name every judge in the county; you need an attorney who knows how your case will affect your driver’s license, your job, or your immigration status. You need an attorney who knows if a conviction will result in enhanced penalties, restriction on your right to own a firearm, the need to register with the state, or even your deportation. Without a fully qualified and experienced defense attorney, you run the terrible risk of not only being punished far more severely than you deserve, but of being punished far more severely – and in more ways – than you even expected.

At Ramsay Law Firm, we defend those who have been accused of committing a crime. We practice no other area of law. We’ve taken an oath to zealously represent our clients, and we take that oath very seriously. That means making sure that we understand all of the “collateral consequences” that go along with a criminal charge or a criminal conviction. Because we are on the cutting edge of criminal defense, we’re in the best position to advise our clients of all their options, to fully litigate all their defenses . . . and make sure that we get the best results possible.

If you’ve been charged with a crime, contact Ramsay Law Firm. We’re fully committed to defending our clients as completely as is humanly possible - it’s how we get results.

Please view our website at Ramsay Results

Please follow us on Facebook at Ramsay Results – Facebook

Please follow Mr. Ramsay via Twitter

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            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.

Please view our website at Ramsay Results

Please follow us on Facebook at Ramsay Results – Facebook

Please follow Mr. Ramsay via Twitter

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For years, Minnesota law has permitted the State to seize the vehicles of some arrested for DWI, sell them off, and keep the proceeds. This means that many of our clients come to us concerned not only about jail time, or loss of their driver’s license, but also worried about the fact that the State is trying to permanently deprive them of their car, their SUV, their boat, or whatever motor vehicle they were operating when they were arrested.

There are serious concerns to be raised whenever the State gets into the business of seizing a person’s private property for its own gain. When the police department and the prosecutor get to divide up the proceeds from selling off forfeited vehicles used by drunk drivers, the procedure starts to look less like it’s about public safety and more like its all about generating revenue. However, what makes DWI forfeitures so bad – so bad that they are unconstitutional – is the fact that the police get to seize the vehicle immediately . . . and then completely prevent the driver from contesting the seizure in front of a judge. See Policing for Profit for more on forfeiture abuse.

 The current forfeiture law does not permit a driver to contest the seizure of his vehicle until after his criminal case has been resolved. This can take years. Despite the fact that this law has been on the books for years, we recently addressed the constitutional problems with this scheme, and won. We had a client who had his vehicle seized over a year ago. While we’ve spent over a year fighting the criminal charges lodged against him (he was charged with “refusing” a breath test. In reality, the Intoxilyzer 5000 “refused” to accept his breath sample), his vehicle sat in an impound lot, depreciating in value while remaining exposed to the elements. Meanwhile, the State patiently waited for permission to sell it at auction and divvy up the spoils.

 On our motion for summary judgment, the court ruled that the forfeiture law is unconstitutional, and the vehicle was ordered to be returned. By convincing the court that this law – a law that has been enforced for years – was unconstitutional, we took a bleak looking situation and ended up getting results for our client.

Winning a DWI case means winning the criminal case, the civil Implied Consent case, and sometimes, the vehicle forfeiture case. If you’ve been charged with a crime – especially a crime that resulted in a forfeiture of your hard-earned personal property - you’ll need an attorney who knows how to defend all of your rights. That’s when you need to call Charles Ramsay Law Office. Where other attorneys have given up, we can get results.

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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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Procedure

Results

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