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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Dan Koewler, a regular contributor to this blog, just received the prestigious “Up and Coming Attorney” Award by Minnesota’s premiere legal publication, Minnesota Lawyer. “I was astounded,” said Koewler in one interview. “Most attorneys who receive this award have two or three times more experience than I have, so it was truly an honor.”

Koewler was selected in large part due to his broad range of experiences (he’s a regular figure in State court, while also practices in Federal court and in front of Minnesota’s Court of Appeals) but also because of his key role in the recent legal challenges to both the Intoxilyzer 5000 and Minnesota’s urine testing regime.

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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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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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One Hennepin County judge wrote in a source code order that it may be malpractice for a lawyer not to seek breath test software.  That remains to be seen and depends primarily on the outcome of our experts' analysis.  Practically speaking, however, the source code coalition has prepared matters to point where it requires little effort from attorneys to take advantage of this issue. 

The upside is obvious -- drivers' DWI breath tests could be thrown out.  There is little down side -- a minimal contribution from each lawyer and a delay necessitated by the review. 

So the question is: is your lawyer a member of the Minnesota Intoxilyzer 5000 Source Code Coalition. 

If not, get another lawyer. 

I've listed of all members below as of today.  In addition to this, all state public defender cases are included.

Here's the latest on the expert analysis of the software:  While CMI, the Intoxilyzer 5000 manufacturer, has yet to provide us reasonable access, Marsh Halberg, one of the other lead attorneys, has made significant progress. Our experts are ready to go. We hope to have them in Owensburo Kentucky by the end of the January to begin the software review.

We'll post more updates as they become available.

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Practicing on the cutting edge of criminal defense law is highly rewarding for both our clients and our attorneys. It wasn’t too long ago that we renewed our attack against Minnesota’s illogical urine testing regime for DWI suspects. We carefully crafted a unique legal argument and have already seen success for our clients in the district courts as a result of this argument. Such arguments require a strong scientific understanding – not just legal experience – and take a determined lawyer to prove effective in court.

Just last week, we brushed up on our studies and held another Frye-Mack hearing.  This type of hearing is a key part to our attack against a urine testing regime that is being used to convict Minnesota drivers who may not have had any alcohol in their bloodstream when they were driving. If you think that last sentence sounds absurd, wait until you read what the government presented as evidence that Minnesota’s method of urine testing is a “generally accepted practice” in the scientific community.

-          The government expert initially relied on numerous studies that purportedly supported the way Minnesota conducts urine tests. On careful cross examination, however, the expert was quickly forced to admit that the authors of these studies actually oppose the way Minnesota uses urine testing in DWI cases.

-          The government witnesses were unable to speak about a single other state that uses urine testing for DWI’s in the way that Minnesota does. Again, cross examination was able to reveal to the court that Minnesota is the only state to utilize first void urine samples to convict DWI suspects.

-          When we had our chance to present testimony (something we’ve perfected since we first formulated this argument) we presented volumes of unrebutted testimony, expert opinion and scientific articles that make one thing clear: Minnesota needs to stop using urine tests to convict drivers of DWI.

-          We introduced a new peer reviewed scientific treatise, "Relationship between Blood and Urine Concentrations..." by Dr. A.W. Jones to be published later this year in Forensic Science International.  Dr. Jones’ data supports his previous conclusions that Minnesota urine testing is bad science.

-          In a bombshell, the former supervisor of the Minnesota Bureau of Criminal Apprehension’s toxicology section, Glenn Hardin, testified he submitted a written proposal to rid the state of urine testing to determine a specific level of alcohol in DWI cases.  His political supervisors, however, thwarted his attempt to rid Minnesota of unscientific urine testing.

The testimony has all been heard; now we’re waiting for the judge to issue a ruling. Given our experience in the area, we’re expecting a victory for our client, and hope to be able to post again soon with another judicial order explaining what every other scientist (outside the Minnesota Bureau of Criminal Apprehension) understands: Minnesota’s urine testing regime is unreliable and inaccurate.

If you’ve been charged with a DWI, and the government is using the results of a urine test against you, you’ll want attorneys with the background, experience and drive to make sure that your rights are protected. That means calling Ramsay Law Office, where we don’t just let the government get their way – we get results.

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In our first trial of 2010, a Hennepin County jury found my client not guilty after a trial in Minneapolis. 

The prosecutor had charged “Eric” (not his real name) with DWI after his arrest in August last year.  The police officer stopped Eric’s Mercedes convertible after crossing over the center line three times, almost striking another vehicle.  Eric agreed to perform standardized field sobriety tests consisting of the Horizontal Gaze Nystagmus test (eye test where the person follows the officer’s finger or pen), the One Leg Stand, and the Walk and Turn test (walking heel to toe on a line). 

The officer arrested Eric after the field sobriety tests.  Eric submitted to a urine test.  The Minnesota Bureau of Criminal Apprehension (BCA) tested Eric’s urine sample and reported his alcohol concentration was over the legal limit of 0.80.  As a result of the test result, the state charged Eric with two charges of Second Degree DWI (3d in ten years) and forfeited his $80,000 automobile.

Before trial I obtained Eric’s urine sample from the BCA and had it retested by an independent lab.  The reported result was .076, just UNDER the legal limit. 

We began trial Tuesday with pre-trial motions.  The judge denied all of our motions (the first time that has happened in my career!) and we began picking a jury.  I called no witnesses to testify and relied on my cross examination to establish reasonable doubt in the jurors’ minds.  

The jury returned Thursday afternoon with a verdict of Not Guilty. 

Many believe DWI cases are not winnable.  Most attorneys unfortunately believe all they can do is “negotiate” with the prosecutor and do not challenge the evidence or take the cases to trial.  As a result of challenging the evidence and winning the trial, the state will likely return Eric’s $80,000 vehicle.

If you have been charged with DWI in Minnesota, call Minneapolis DWI lawyer Chuck Ramsay immediately.  We don’t negotiate – we win!

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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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Last week I was representing a client at trial for his second DWI. Instead of going to trial, the prosecutor agreed to dismiss all DWI charges.

Why?

The police did not give him a breath test (probably because we’ve all but shut down Minnesota’s Intoxilyzer 5000 after exposing its broken source code). Police did not give him a blood test (some officers believe it is too costly and inconvenient). Instead, they had my client submit a sample of his urine for testing.

The Scientific Community Agrees: Urine Tests do not validly or reliably determine a person’s alcohol concentration. Despite this, Minnesota is the only state in the country which regularly uses urine testing without first voiding the bladder in DWI cases.

I have been successful getting judges to throw out urine test results. I’ve posted the court orders in the Carroll case and Westlund case. I’ve also prevailed in trial where a jury agreed urine tests are worthless. Prosecutors are well aware of my firm’s victories. Indeed, I’ve had much greater success in this area than any other attorney in Minnesota. As a result, prosecutors are reluctant to go to trial with me in urine test cases. This is good news for my clients.

If the State of Minnesota has charged you with a crime or taken your license based on a urine test, call us immediately. We can help.

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In August a Sherburne County jury found my client innocent of all DWI charges in a blood test case.  The state had reported his alcohol concentration was .16.  We beat that case by showing the jury that the state did not follow the procedures necessary to ensure the results were valid, reliable and accurate.  We also showed that our client was not impaired by alcohol. 

Last week, an Anoka court ruled in favor of my client where his blood alcohol concentration was .19.  “Andy” had rolled his pickup truck on I-35W in Blaine, Minnesota earlier this year.  Because of his injuries, Andy was taken to the hospital where police ordered hospital staff to obtain a blood sample.  An employee of the hospital staff complied.  Police mailed the blood vials to the Minnesota Bureau of Criminal Apprehension (BCA) for analysis.

Under Minnesota’s Implied Consent Law, any person who has been trained as a physician, medical technician, emergency medical technician, registered nurse, medical technologist, medical technician-paramedic, medical laboratory technician, or laboratory assistant may administer a blood test.

In Andy’s case, the person who withdrew the blood was an “Emergency Department” Technician.  ER Technician is not one of the enumerated qualified persons to draw blood under the implied consent statute.  As a result the court held the blood test result inadmissible and rescinded my client’s driver’s license revocation.

Because the court ruled in our favor on that issue, the court did not need to address the other issues in the case: whether the officer denied my client the right to consult with an attorney before deciding whether to test or consent.  I believe either of these other issues would have been meritorious.

Of the three types of DWI alcohol tests used by Minnesota – blood, breath and urine – I see blood tests the least.  This is probably due to the added time and expense required to go to the hospital where a medical professional must draw the blood, and the delay in receiving the results.

While blood tests are the most difficult to beat in a DWI case, the moral of this story is that blood tests can be beaten if challenged by a very competent attorney.

I regularly beat urine and breath tests as well.  If you’ve been charged with a DWI or DUI as a result of a blood, breath or urine test, call Chuck Ramsay immediately.

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I have been following a breaking news story out of Pennsylvania.  Hospitals announced they have discontinued blood testing for DWI alcohol testing. This is long overdue and comes about due to the Herculean efforts of one Pennsylvania Lawyer Justin McShane, of The McShane Firm, LLC.

Until now, Pennsylvania hospitals would analyze blood samples for DWI alcohol testing at the request of police utilizing “enzymatic testing,” a method widely considered by forensic scientists to be invalid, unreliable and inaccurate. Despite this, the state took citizens’ driver’s licenses and put them in jail based solely on enzymatic testing of blood samples. 

The story behind the change in hospital policy is interesting.  Mr. McShane had regularly obtained court orders which placed the hospital labs under great scrutiny and drained significant resources.  The scrutiny jeopardized the hospitals' lab accreditation with scientific organizations when McShane exposed the unscientific methods.  The loss of accreditation would have been extremely costly to the hospitals. In the end, rather than risk the loss of their accreditation under further intense scrutiny and exposure, the hospitals and clinics have informed police they will not longer analyze the blood samples.

Police will now likely send blood samples to the state crime lab to be analyzed using the Gas Chromatography – the gold standard of blood testing if administered and evaluated properly. It remains to be seen what effect this implicit admission will have on pending cases.

Minnesota does not recognize the enzymatic method for DWI blood testing. It uses the Gas Chromatography to measure the amount of alcohol in drivers’ blood. Coincidentally, Justin and I spent this week in Chicago at a hands-on science course entitled, Gas Chromatography: Fundamentals, Troubleshooting, and Method Development.  The other attorneys attending the course were Andrew Alpert, Tyler Flood, Roderick Frechette, Stephen Hamilton, Josh Lee, Donald Ramsell and Michael Solak. 

If you have been accused of having a blood alcohol concentration over the legal limit, call Chuck Ramsay immediately for the best possible DWI legal representation in Minnesota. 

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Earlier this month, fellow criminal defense lawyer, Ms. Christine Funk interviewed Mr. Charles Ramsay for a segment of her online show, The Crime, Science and Information Show, that provides answers to various questions regarding workings of the law, the judicial system and the principles of forensic science.

Mr. Ramsay met with Christine Funk in order to discuss intoxication laws – including what those laws are, evidence and scientific issues concerning those laws and legal challenges that may occur now that evidence and scientific angles are being challenged.

If you have been regularly reading Mr. Ramsay’s blog, mndwidefenseblog.com, you are aware that Mr. Ramsay, along with other criminal defense lawyers throughout Minnesota, has been challenging the source code for the Intoxilyzer.  Mr. Ramsay continues to bring to light this issue and uses Ms. Funk’s interview platform to bring it to a larger audience.

During the interview, Mr. Ramsay explains the difference between driving while intoxicated (DWI) and driving under the influence (DUI), various tolerance levels for individuals and the government's means for determining an individual's alcohol concentration (urine testing, blood testing, breath testing).  He also provides more information on breath test machines and the source code issues breathalyzers face.

Like Charles, Christine believes in knowing the law, the facts surrounding each case and the science behind each case.

Ms. Christine Funk has been with the Public Defenders Office for the State of Minnesota, serving as a member of the Trial Team Office.  Christine has made great strides in challenging DNA evidence in cases throughout her career and has strived to make scientific evidence understandable to other lawyers, along with average, ordinary citizens.  She hosts the online show, The Crime, Science and Information Show on The Women’s Information Network website.

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Dr. Alfred Staubus, a nationally renowned forensic scientist from Ohio reports the new issue of the Journal of Analytical Toxicology (Volume 33, No. 8, October 2009) has an interesting article about the Intoxilyzer 8000. The 8000 is a DWI breath test machine (some say breathalyzer) and successor to the Intoxilyzer 5000, Minnesota’s breath test machine. 

Dr. Staubus says the forensic science treatise published the results of a scientific study that demonstrates the Intoxilyzer 8000 has a poor ability to detect mouth alcohol. 

To be scientifically valid and reliable, DWI breath tests must detect mouth alcohol in test subjects.  Otherwise, the test result will read erroneously high.  See Professor Harley Myler’s Affidavit for more information.

In the study, a total of 23 breath-alcohol profiles were collected from subjects blowing into the machine every 5 minutes for 2 hours immediately following drinking.  The INVALID SAMPLE indicator of mouth alcohol was only actuated in 5 of the 23 cases.  And in those 5 cases the INVALID SAMPLE indicator only appeared during the first sample.
 
Table II shows the Intoxilyzer 8000 failed to actuate the INVALID SAMPLE response to mouth alcohol even when test result was elevated by as much as 0.127 g/210 L over the subsequent breath test result.

Authors (James Watterson and Kayla Ellefsen from the Forensic Toxicology Research Laboratory in Canada) also collected blood samples from these subjects.

Within a limited breath volume range of 2 to 3 liters, the author found the precision of the test results to be insensitive to breath sample volume.  Considering that the minimum acceptable volume for the Intoxilyzer 8000 is 1.1 liters and many subjects, when told by officers to "keep blowing, keep blowing, ...”, can blow in excess of 4 or 5 liters, the small range of 2 to 3 liters and the limited number of samples was apparently designed not to detect differences due to breath volume that others have already demonstrated.

Authors concluded that (1) the Intoxilyzer 8000 generally underestimates the venous BAC and (2) "it is clear a mandatory delay before breath testing commences should be enforced to minimize the likelihood of falsely elevated BAC measurements." According to Staubus, however, they avoided concluding anything in regard to possible mouth alcohol contamination from Gastric Esophageal Reflux Disease (GERD).

Readers may purchase the article on-line or the entire October edition.

Dr. Staubus is a national consultant who consults with the Ramsay Law Firm on forensic science issues.

In my opinion, CMI, the Intoxilyzer manufacturer, could not get it right in the Intoxilyzer 5000 and they still cannot get it right in the 8000.  This machine does not produce accurate, reliable or valid results.

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Today a Washington County District Court Judge ordered the government to return a vehicle seized more than two years ago. The city seized the new "Hummer" when my client was arrested for DWI – refusing to submit to a breath test. This was my client’s second arrest in ten years. He has not been convicted in either case. When a judge overturned the prior license revocation earlier this year, the state no longer had a basis to hold the vehicle in this case.

Although the prosecutor acknowledged that it had to return the truck, she conditioned the return of the vehicle on payment of $800 in storage fees. Although the city had kept the Hummer on its property and incurred no costs, it insisted on making a profit despite losing the case. The judge shot down the government’s position and ordered the city to return the vehicle without costs.

Police have abused Forfeiture laws since their inception, but Policing for Profit has spun out of control in recent years. One need only look at the well publicized problems with the Metro Gang Task Force.

Let's hope the legislature begins to look at some sort of forfeiture reform at the MPR article suggests.

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Starting Tuesday, June 9, 2009 Minnesota has a new seat belt law.  The old seat beat law, which has been in effect for quite some time now, was that a cop could only give you a ticket for a seat belt violation, only  if you were originally involved in some other kind of traffic violation that lead to your stop by the police.

But... the new law is that no matter what and no matter where, you HAVE to wear your seat belt, otherwise a cop can pull you over and ticket you.  You do not have to be doing anything wrong, except not wearing your seat belt now.

Also, the old law stated that adults in the front seat needed to wear their seat belt.  But adults in the back seat, were not required to.  With the new law, EVERYONE in the car, needs to have their seat belts on, too.

The fines for the violation of wearing yoru seat belt start at $25 and can go up, depending on the county.  The DPS believes that this will drastically reduce the amount of serious injuries and even deaths due to car crashes.  This law ties in with the other new law that is going to go into effect on July 1, 2009 that all children under the age of 8, or under 4' 9" need to be in a booster seat so that the seat belt falls across them correctly.

So from now on, do not ignore the flashing, red seat belt guy, that always dings when you do not put your seat belt on right away.  Now he is there to not only save your life, in case of a crash, but to save you time and money from getting pulled over and ticketed.

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This week the Minnesota Court of Appeals upheld a DWI conviction of a man who was not driving his vehicle. In State v. Fleck, a jury convicted Daryl Fleck of “Driving while Impaired” even though he was not driving.

The court held:

Because Fleck's keys were readily available to him and there is no evidence in the record that his purpose for being in the vehicle was inconsistent with driving, the evidence that he was in physical control of the vehicle was sufficient to support convictions for driving while impaired under Minn.Stat. § 169A.20, subd. 1(1), (5).

The policy seems absurd. The court’s interpretation of the statute criminalizes potential use, not actual control. 

Coincidently, a day after the Minnesota ruling, an Arizona court ruled the opposite way. In doing so, the court explained its reasoning in Arizona v. Zaragoza:

Indeed, many impaired adults have ready access to a vehicle, and therefore the potential use of one, but retain the sound judgment not to drive. Had the legislature intended to more broadly reach those impaired persons merely at risk to control a vehicle, we believe it would have inserted specific language so indicating.... the language it chose suggests it intended to punish actual behavior that creates a potential for harm.

The Arizona court seems to make more sense. We should penalize those who actually drive, not those who could potentially drive. 

What’s next? Arresting citizens for what they could possibly do?

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A prosecutor in Hennepin, County Minnesota dismissed yesterday all charges against a man who had been charged with gross-misdemeanor criminal charges.  The man's attorney, Charles Ramsay of Roseville, Minnesota, confirmed the dismissals. 

Ramsay had challenged the drunk driving charges based on a number of constitutional violations, including, that the police coerced his client to take the Intoxilyzer 5000 under the implied consent law.  "The police told my client to 'consent' to a breath test or go to jail.  That violates the fourth and fifth amendments of the US Constitution."

The maximum penalty carried one year in jail and a $3,000 fine.

If you've been charged with a DWI or DUI in Minnesota, call Charles Ramsay to defend you.  Don't wait.  You risk losing valuable rights if you wait 30 days after your arrest.

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Our continued excellence of legal services are staying the same, but the law firm of Charles A. Ramsay & Associates has moved to a new location. Not far from our old location in The Rosedale Towers we are now just 2 miles North on Snelling of the Rosedale Towers. www.mapquest.com/maps.

Still in Roseville, our new address is:

2780 Snelling Ave. N. Suite #330

Roseville, MN 55113.

Our Phone number is still the same (651)604-0000, as well as our Fax number (651)604-0027.

Please Call to find out more information, or if you need clearer directions on how to get to our new office.

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