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.

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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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