Back in 2008, we strenuously argued in front of the Minnesota Supreme Court about a topic that directly impacted the lives of many of our clients - Minnesota’s practice of ignoring the Constitution and performing warrantless searches in nearly every DWI case. Ultimately, our Supreme Court ruled that a newly minted “single-factor exigency” doctrine meant that the Fourth Amendment did not apply to DWI suspects in Minnesota.

Fast forward to 2012, where the Missouri Supreme Court found otherwise in State v. McNeely. In a concise, but very well-reasoned order, the Court followed prior U.S. Supreme Court precedent in Schmerber v. California and held that, unlike the situation in Minnesota, a warrant is required to search DWI suspects in most cases. 

If you have any interest in Constitutional Law, read this decision. The Missouri Supreme Court did an excellent job of interpreting prior precedent and establishing a solid policy for the future - and did so by upholding the Constitution, rather than watering it down.

This decision impacts Minnesota law in two ways. First, it again emphasizes that our courts are divided on this question, which may convince the U.S. Supreme Court to step in and adopt the logic used in Missouri (which would overturn the current state of the law in Minnesota).

The second key feature of the McNeely decision requires us to look a little deeper. In a footnote, the Court noted that prior Missouri law required consent prior to a blood draw, and that if the driver didn’t consent to a test, then “none shall be given.” That key language was held to require warrants in most Missouri DWI cases - and that language was removed by the Missouri Legislature in 2010. Prosecutors then argued that without the “none shall be given” language, police were now free to perform warrantless tests on DWI suspects. Clearly, the Missouri Supreme Court felt otherwise.

What’s interesting about this is the fact that Minnesota has nearly identical language in its own Implied Consent Statute. Here, just like in Missouri prior to 2010, if a person refuses to consent to a test, then “a test must not be given.” However, Minnesota Courts have consistently refused to interpret this provision, sidestepping the issue in case after case, as if this language didn’t exist.

In Missouri, even prosecutors agreed that this type of language prohibited warrantless tests of blood, breath or urine. In Minnesota, this language has gone ignored - for years. Despite the Minnesota Supreme Court’s creation of the “single-factor exigency” doctrine, this legislative enactment should require warrants in nearly every DWI arrest. Perhaps this most recent decision from the highest court in the “Show Me” state will, in fact, show our state the correct way to protect the rights of DWI suspects.

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The use of urine tests for DWI’s in Minnesota received yet another endorsement from the Court of Appeals today. At issue in the case of Ellingson v. Comm’r of Pub. Safety was the question of whether urine tests fell into the “single factor exigency” doctrine that permits law enforcement to collect other types of samples (blood and breath) without first obtaining a warrant.

What makes the issue compelling - and highlights another reason why Minnesota is pretty much the only place in the world that is still using urine tests - has to do with the basic fact that the alcohol in a person’s bladder is fundamentally different than the alcohol in a person’s bloodstream.

The argument, simply put, is that while your average person’s blood alcohol steadily decreases over time (due to action by the liver and kidneys) the same doesn’t hold true for alcohol in a person’s bladder. In fact, we’ve presented unrebutted expert testimony in court that urine alcohol, compared to blood alcohol, doesn’t decrease at all.

In the Ellingson case, the court was only presented with the testimony of a government-paid, government employed lab technician, who convinced the court that urine alcohol “could” rapidly change in concentration. However, if you ask a toxicologist who isn’t employed by the Minnesota Bureau of Criminal Apphrension, they’ll tell you that any change in urine alcohol concentration could affect, at most, the third digit (example: a sample that would test at .105 could, over an hour, change by about .002).

Thus, the “single-factor exigency” doctrine, which was designed to apply in blood and breath test cases where alcohol concentration can go down by .015 in an hour, now applies to situations where any alcohol concentration may be decreasing by a comparatively minuscule amount.

This issue is far from finished. The Ellingson court based its finding on a very lenient standard of review (it gave great deference to the lower court’s opinion of the testimony it was presented with). In another case, with more accurate testimony, the courts will still be free to find that urine alcohol concentration doesn’t diminish rapidly enough to permit a warrantless intrusion. This is just another example of bad facts making for bad law. 

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The Minnesota Court of Appeals issued an order last week which could signal a dramatic shift in the way DWI alcohol tests - especially urine tests - are conducted, while breathing new life into the Fourth Amendment.

In DWI arrests where the police obtain a breath or a blood sample, the Minnesota Supreme Court has held that there is no need to obtain a warrant before getting a sample. While blood, breath and urine tests are considered “searches” for the purposes of the Fourth Amendment Warrant Clause, our Supreme Court crafted a narrow exception to the warrant requirement in DWI cases where blood or breath samples were collected. The Court ultimately held that the, “rapid, natural dissipation” of alcohol in a person’s bloodstream meant that there was no time to obtain a warrant –that any driver’s alcohol concentration could fall below the legal limit while the police were in the process of obtaining a warrant. 

While this “single factor exigency” doctrine has never been approved in urine test cases, the trial court did so in the case of Swanson v. Commissioner of Public Safety. In that case, an expert witness testified to the common fact that urine alcohol concentration doesn’t “rapidly dissipate” like blood and breath alcohol (as we’ve said for years, the only way your urine alcohol concentration decreases is by voiding your bladder). Despite this testimony, the court held that an officer still did not have time to obtain a search warrant without losing alcohol evidence, and upheld the license revocation. Sam McCloud, the attorney representing the driver in Swanson, rightly appealed to the Court of Appeals.

Then, in a rare procedural move, the Court of Appeals did two things: it signaled its intentions to hold that the “single factor exigency” doctrine does not apply in DWI urine cases, but then chose to send the case back to the trial court to further develop the record. Specifically, the Court wanted to make sure that no other exceptions to the warrant requirement (specifically, the “consent” exception) were present. 

In its order, the Court of Appeals said:

“Hypothetically, if this court were to hold that the exigency exception does not apply, a remand would be necessary to determine the applicability of the consent exception, for that issue was not decided by the district court and was not briefed or argued on appeal. To foster a meaningful review in this appeal, the district court must decide the applicability of both exceptions. Therefore, the district court is directed to decide the issue of whether the consent exception applies in this case, and the matter is remanded as to that issue.”

In our humble opinion, if the Court of Appeals agreed with the trial court, it simply would have affirmed the lower court’s order. Because it remanded the case for further proceedings, it appears the court of appeals believes the consent issue to be controlling. Talk about a positive sign – right on the heels of the Supreme Court’s decision to review the science behind urine testing, the appellate courts are now also carefully considering the science behind drunk driving offenses. 

So, the question is now, “did the driver actually consent to a urine test?” Well, we suggest you stay tuned - later this week we’ll explain exactly why the driver did not consent, and why Minnesota is one of very few states where saying “yes” to a urine test isn’t the same thing as consenting to a urine test.  

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Technology keeps improving upon itself. Zack Morris-style cell phones  become razor thin PDAs, which become 4G mini-computers. Forensic science keeps evolving too - urine tests fall out of favor, while DNA tests keep getting better.

The steady progress of science has plenty of consequences for anyone arrested for DWI - and not just regarding the test the State performs to determine your level of intoxication. Before the government can even test your blood, breath or urine, a police officer needs to have probable cause to arrest you.

Probable cause is usually determined by observations of the officer and performance on field sobriety tests. Unfortunately, this sometimes means that defense attorneys have little to go on other than what the police officer chooses to write in their after-the-fact police report. Luckily, due to advances in technology, we’re seeing more and more video evidence taken at the scene of the stop.

We always request all the audio and video evidence collected by the government whenever we represent a client charged with a DWI. Review of that evidence can take what appeared to be a difficult case and turn it into a slam-dunk. Review of any video evidence provides a good defense attorney with many opportunities to win a case:

 -  Did the officer actually have a valid reason to pull over your vehicle?

 -  Were you really “slurring your speech” or “stumbling” (every police report I’ve      read claims as much)

 -Did the officer properly and accurately perform the three Standard Field Sobriety Tests (you’d honestly be shocked at how many officers fail on this point, and how often this can lead to an outright dismissal of your charges)

 -Did the officer actually provide you with an opportunity to consult with an attorney?

 We look forward to the day when every officer is wearing a video camera - it provides so many additional opportunities to scrutinize the arrest process, and can in turn lead to a dismissal of all charges.

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On July 1, 2010, the Legislature updated Minnesota’s DWI laws in one troubling aspect. Before July 1, the law stated that only specific types of individuals could perform blood draws for DWI purposes - registered nurses, medical laboratory technicians and the like. These types of people work in labs and hospitals, making it likely that any blood draw would be performed by people who were both highly qualified, and working in a sterile environment.

As of July 1, Minnesota’s DWI law now allows anyone who is considered a “qualified person” to draw blood. In a previous blog, we wondered if the State would use this new law to start performing roadside blood tests by under-qualified individuals. It didn’t take them long to make this concern a reality.

Minnesota peace officers are now being given a 40 hour course that will supposedly “qualify” them to perform blood draws. That’s 8 hours of online training, and 32 hours of “lab exercises” before they can begin sticking needles into Minnesota drivers. Forty hours of training, versus obtaining a certification that can take years . . .

We predict that we’ll soon begin to meet with clients who were arrested because an officer suspected them of driving while intoxicated, and then stuck them with a needle right there on the hood of the squad car. And we’re already planning on ways to highlight just how unconstitutionally coercive and outright shocking such behavior is.

At this rate, how far are we from allowing vitreous eye fluid tests for intoxication? This is definitely an area of law that bears careful watching.

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The Chief Justice for the Supreme Court penned an incredibly articulate and devastating attack against Minnesota’s test refusal law today. In the case of State v. Larson, the Court held that:

"Larson also argues that his due process right to a fair trial was violated because the State was allowed to introduce evidence that he had refused to submit to voluntary . . . testing, and that the State used his refusal as evidence of his guilt. It is uncontested that Larson refused to allow the police to take a . . . sample . . . until the police produced a warrant. At trial, the district court ruled, over Larson’s objection, that Larson’s refusal to submit voluntarily to . . . testing could come before the jury. The court acknowledged that, while Larson “had that right to refuse to cooperate,” he did not see that “any constitutional rights of [Larson’s] are violated by that fact being told to the jury.” This ruling was erroneous. See Jones, 753 N.W.2d at 687 (“It is a violation of the defendant’s right to due process for a prosecutor to comment on a defendant’s failure to consent to a warrantless search.”)." (Emphasis added)

I’ve never read a more damning attack against Minnesota’s DWI test refusal law.

There is one problem: the above quote doesn’t refer to blood, urine, or breath samples for alcohol concentration - it refers to blood samples for DNA testing. Thus, the legal conclusion that our current test refusal law is unconstitutional can be craftily avoided by simply invoking the DWI exception to the Constitution.

We’ll be bringing the Larson case to the attention of every judge that is presiding over a test refusal case, and it will be very, very interesting to see how they can “distinguish” (legalese for “ignore) this case from the line of cases mysteriously holding that charging someone for test refusal is constitutional.

 

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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.

Even if the arresting officer tells you that you don’t have to show up for court for two months, don’t wait. Failure to act promptly can result in the permanent loss of your vehicle (and your driver’s license) - EVEN IF THE STATE DISMISSES THE CRIMINAL CHARGES AGAINST YOU.

Please read about part one of this blog post here.

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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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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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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

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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.

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This week, Minnesota Governor Pawlenty proposed new DWI laws in an effort to significantly reduce drunk driving in Minnesota.  Highlighting the changes is a requirement that all offenders install ignition interlock devices into all of their vehicles to be eligible to drive.  The proposal applies to first time DWI offenders.

The proposal also aims to toughen other aspects of Minnesota DWI laws, including lowering the alcohol concentration limit from 0.20 to 0.15 for enhanced penalties; applying enhanced sanctions to all second-time DWI offenders, regardless of blood alcohol concentration; and reforming drivers’ license revocation laws.

Governor Pawlenty appears to be making a genuine effort to reduce drunk driving.  It is well known that to be successful, DWI laws must emphasize rehabilitation.  This proposal is a step in the right direction. However, it is riddled with pitfalls - this law is no panacea. 

Topping the list of pitfalls are the unrealistic expectations.  Supporters of the proposal claim the changes will nearly eliminate repeat offences.  "Drunk drivers will no longer be able to get behind the wheel of a car without proving their sobriety," Pawlenty said. (Pioneer Press, Jan. 20, 2010).  For that statement to be accurate, every vehicle in Minnesota would need to be permanently equipped with a breath testing locking device as standard equipment.  This is not the case.  The requirement is limited in duration and other unequipped vehicles are available for use.  What’s stopping a person from driving another’s vehicle?  What safeguards are there after the device is removed?

Additionally, the governor’s cost expectations are deceptively low.  The actual cost to drivers is quite high.  Although the cost varies from company to company, drivers must pay to have the device installed and removed, in addition to the monthly fee. 

Already, DWI drivers must pay a reinstatement fee of $680.  Currently, drivers are required to pay this before they are eligible for a work permit.  The current proposal eliminates the availability of work permits and hardship licenses.  As a result, the total cost of reinstatement and interlock would be cost prohibitive to many, particularly in this economic climate.  Based on my observations, Minnesotans will drive without a valid license if they cannot afford to pony up the funds necessary to drive legally.  In the end, the high costs of the program will create more criminals while falling short of expectations.

Not only will the changes not meet expectations, but they will further erode citizens’ constitutional rights (the “DWI exception” to the constitution).  Our current Minnesota DWI laws operate under a “shoot first, ask questions later” mentality.  When a driver’s alcohol test is .08 or more, their license to drive is automatically revoked, based solely on the accusation.  Under this plan, a person would be forced not only to endure the license revocation, but forced to pay well over a thousand dollars to be able to drive.  Yet drivers would receive no refund In the event they ultimately prevail by demonstrating the test was erroneous or invalid, or that their rights were otherwise violated.  

So are the proposed changes a panacea or a patsy?  Time will tell....

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Many consider the test refusal law to be unbeatable. The law is not straightforward and is difficult to understand. A lawyer well versed in the law, science and facts of your case can beat the crime of test refusal.

The law as it exists today came about to close a loophole in Minnesota’s DWI law. Decades ago, people refused to submit alcohol testing which limited the evidence available to the state. Then, the state passed the "Implied Consent Law." Under the original law, upon refusing to test the state would revoke a person’s license for one year. This caused most people to submit to testing. To increase those numbers, the state made it a crime to refuse testing under the Minnesota Implied Consent Act. This crime was treated the same as taking the test and failing. Later, when the state amended the criminal DWI law making the consequences more severe for those over .20, many drivers began to refuse to take the test rather than risk facing enhanced charges for a high alcohol test result.

Once drivers became more aware of the enhanced charges for a .20 or greater, more drivers again began refusing DWI tests rather than risk facing the more serious consequences. The state closed that loophole earlier this decade by making test refusal a crime more serious than merely failing a DWI alcohol test over .08 or more.

As a result of the piecemeal amendments to Minnesota’s Impaired Driving Laws, the laws have become an unconstitutional, knotted mess.

The refusal provision states:

 “It is a crime for any person to refuse to submit to a chemical test of the person's blood, breath, or urine under section 169A.51 (chemical tests for intoxication), or 169A.52 (test refusal or failure; revocation of license).” Minn. Stat. § 169A.20, subd. 2 (2008).  Under the law, the refusal crime is more serious than taking and failing the test.

Is Minnesota’s DWI Test Refusal Law Constitutional?

Minnesota is one of fifteen states that make it a crime for a driver to refuse to submit to blood, urine or breath testing after being arrested for a DWI.  The rationale behind the criminal law is obvious: to coerce drivers into providing an alcohol test to increase the likelihood of conviction. 

No empirical data supports the government’s claim that the test refusal law makes the roads safer.  Particularly troubling, is that those who agree to submit a breath sample, may be charged with test refusal when the Intoxilyzer 5000 deems the sample to be deficient. 

I believe the law is unconstitutional as it compels citizens to waive their right to warrantless searches and seizure.  I argued this before the Minnesota Supreme Court last year, but the Court sidestepped the issue in State v. Netland.  The court left undecided one question, as articulated by the dissent.

Minnesota Intoxilyzer 5000: Using Science to Beat a Test Refusal

Fortunately, DWI lawyers who are particularly skilled and knowledgeable about Minnesota’s Implied Consent DWI law may be able to beat a DWI test refusal charge when the driver submits to the Intoxilyzer 5000 breath test. 

The local twin cities media has reported on how I’ve exposed flaws in the breath test software causing the Intoxilyzer 5000 to erroneously deem a person to have refused to submit to a breath test.  The documents I’ve discovered and the testimony I’ve elicited have resulted in a federal judge ordering CMI to disclose the source code to Minnesota defense attorneys.

A driver is not likely to beat a breath test refusal charge without a Minnesota lawyer who knows the scientific flaws of the Intoxilyzer 5000, the issues involving the source code and how the state’s experts will testify in court.

Blood Tests and Urine Tests: Using the DWI Law’s Provisions to Beat the Refusal Law

A client hired me last month in a blood test refusal case.  I thought the facts from the case can help explain how to beat a test refusal to test charge. 

 

My client was stopped by police and arrested on suspicion of driving while intoxicated.  The officer took her to a hospital for a blood test.  The officer asked my client if she would submit to a blood test and my client agreed. 

 

Here are relevant facts from the officer’s police report:

 

I began to read the Implied Consent document to “Kim.” Kim agreed to take a blood test.  An RN assisted me with the blood draw.  I opened the blood kit and began filling out the paper work. Kim was physically pulling away from the nurse when she put the tourniquet on her arm.  Kim said she didn't like needles. I explained to Kim that this was a registered nurse and she will be fine.  Kim would not let the nurse touch her. 

Kim would physically pull away every time the nurse would touch her arm. I explained to Kim that she already agreed to take the blood test and that if she did not allow the nurse to take blood that it will be considered a refusal. 

Another nurse was called to assist. The nurse said she will hold her arm straight for her while the other nurse inserts the needle.  Kim lifted her feet off the floor almost kicking the nurse in the stomach, RN told Kim that the other nurse was pregnant and that she needed to settle down. Kim said “just do it.”  RN attempted again to draw blood and Kim pulled away swinging her arms. RN said that she would attempt one more time because she was making it dangerous with the needle.  Kim again physically pulled away from the nurse, RN said she would not draw blood because she was physically uncooperative and it was dangerous.  Due to Kim’s aggressive behavior all testing was stopped.

Kim refused to test.

Does this violate Minnesota’s Implied Consent/DWI Test refusal law?   No.

Under the Statute, “action may be taken against a person who refuses to take a blood test only if an alternative test was offered and action may be taken against a person who refuses to take a urine test only if an alternative test was offered.  Minn. Stat. § 169A.51, subd. 3 (emphasis added). 

It is clear that the legislature never intended for a person to be subject to criminal charges simply for refusing a blood test or urine test without being offered an alternative.

In this example, although Kim said she would submit to a blood test, she prevented the RN from withdrawing blood and she refused the test.  However, the officer should have offered Kim the opportunity to submit to a urine test before declaring, “Kim refused to test.”

Because no action can be taken against a person for refusing to submit to a blood test unless an alternative test is offered, the judge should dismiss the test refusal charge.  As a footnote, the state took my client’s car in this very real case.  Once the judge dismisses the refusal charge the state will be forced to return my client’s car to her. 

If you have been charged with DWI, DUI or Refusal to Submit to Testing, call Chuck Ramsay immediately.

 

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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.

Please view our website at Ramsay Results

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Chuck Ramsay argued State of Minnesota v. Netland on September 10, 2008. The Minnesota Supreme Court must decide the constitutionality of the state's DWI-DUI statute which criminalizes refusal to submit to an alcohol test.



The issue is particularly difficult because Ms. Netland did not refuse to submit to a test. The breath test machine -- Intoxilyzer 5000 -- would not accept her breath sample. The police officer believed she was "playing" with the machine. Ms. Netland was persistent and demanded a blood test. The officer refused to give her either a blood or urine test.

Not willing to give up, Ms. Netland called an independent testing company while still in jail. The company collected her alcohol sample and had it analyzed. The result: .03 -- well under the legal limit of .08!

We now know that the source code was to blame. See the sections about Inferno and Smoking Gun. Unfortunately, state officials continue to use the same broken software. Innocent people continue to be hurt.

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The United States has a long and proud tradition of protecting an individual's right to vocally and publically disagree on politically sensitive issues. The First Amendment rights of free assembly and free speech enshrine a protestor's right to make their opinion's known.

Unfortunately, these cherished rights aren't as respected as they should be, and often those genuinely concerned protesters who are committed to the struggle for change can be unconstitutionally ensnared in the legal system. Along with all of the press coverage surrounding the Republican National Convention being held in St. Paul, MN, Minnesota law enforcement officials and courts are gearing up for record numbers of arrests of protesters. Additional police are being brought in from around the State, and many courts intend to hold evening and overnight court sessions to process the large volume of individuals expected to be charged with crimes.

If you plan to exercise your constitutional rights and protest at the Republican National Convention, (or if you even plan to be in the area during the convention), you run the risk of being arrested and charged with a wide variety of crimes; such crimes include tresspassing, unlawful assembly, interference with the use of public property, obstruction of legal process, resisting arrest . . . the list goes on, and is limited only by the creativity of local police and prosecutors.

If you find yourself arrested or charged with a crime during the hectic upcoming weeks, you'll want to ensure that your rights are being protected in a court system swamped with similar cases. The attorney's at Ramsay & Associates want you to know that we're available, 24 hours a day, throughout the convention, to ensure that any illegal arrests, bogus charges, or even honest mistakes, don't result in unconstitutional convictions or unnecessary entanglement with the court system. We've got a long history of standing up for individual rights against government encroachment, and plan on being there for you when you need legal representation.

Charles A. Ramsay
Attorney at Law
Charles@RamsayResults.com

CHARLES A. RAMSAY & ASSOCIATES, PLLC
450 Rosedale Towers
1700 West Highway 36
Roseville, MN 55113
o: 651.604.0000
f: 651.604.0027
c: 651.336.6603

www.RamsayResults.com

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