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

Common indicia of intoxication include an odor of alcohol, bloodshot and watery eyes, slurred speech, and an uncooperative attitude . . . An officer needs only one objective indication of intoxication to constitute probable cause to believe a person is under the influence.

State v. Kier, 678 N.W.2d 672, 678 (Minn.App.2004) (Emphasis added).

Read the above quote from the Minnesota Court of Appeals. Ignore, for the moment, that the Court incorrectly describes both the odor of alcohol and bloodshot/watery eyes as “common indicia of intoxication” (because they are actually nothing more than indicia of alcohol consumption). Instead, focus on what those two sentences mean, because it’s scary.

In Kier, the Court was stating that anyone with bloodshot, watery eyes who gets behind the wheel of a vehicle is eligible to be arrested for DWI. The only conclusion that we can draw is that evidence of “bloodshot and watery eyes” must be so damning, so convincing, that its very existence renders a driver guilty. Surely such powerful evidence has a strong scientific foundation… doesn’t it?

Well . . . some organizations have actually spoken out about what conclusions can be drawn when an officer sees “bloodshot and watery eyes,” but they sure don’t support using the evidence to convict someone. The National Highway Traffic and Safety Administration (the organization that helped push the legal limit from .10 to .08) did a thorough study of impaired drivers in 1997. Because NHTSA’s goal was to instruct officers on how to detect and arrest drunk drivers, it created a list of eight “cues” that an officer could look for to help determine if a driver was impaired.

Guess what’s not on the list? If you guessed “bloodshot and watery eyes” you are correct. In fact, this “cue” was on the old list, and was actually removed from the list after NHTSA figured out that having bloodshot/watery eyes has as much to do with allergies and people working multiple jobs as with consuming alcohol. If a police officer based his or her decision to arrest on bloodshot watery eyes, the worst thing you can do is just accept that fact - you need to fight it.

The National Highway Traffic and Safety Administration has been telling peace officers - since 1997 - to ignore “bloodshot and watery eyes” as it pertains to allegedly drunk drivers. Yet six years later, the Kier Court was willing to say that this evidence alone was enough to authorize an arrest.

I have no reason to believe that the Kier Court was presented with the 1997 NHTSA study, or that it factored into that decision. That’s why, in my opinion, it would be malpractice not to offer this scientific study into evidence in every case where the State wants to introduce evidence of bloodshot, watery eyes. This study provides the scientific muscle a quality defense attorney needs to attack the longstanding (and incorrect) notion that bloodshot watery eyes are strong evidence that someone is impaired - and to get that evidence suppressed. The reality is that “bloodshot, watery eyes” is lukewarm evidence that someone might be suffering from allergies. . . and, to the best of my knowledge, that is not a crime in Minnesota.

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One common indicia of alcohol consumption is “odor of alcohol.” Nearly every DWI police report will start with a mention of this odor, usually as soon as the officer gets within five feet of an alleged drunk driver. And it won’t just be an “odor.” It will be further defined by the officer, usually as a “moderate” odor, sometimes a “strong” odor, and on special occasions as an “overwhelming” odor. Sounds like damning evidence, right? It is, unless (like us) you know exactly how to fight in DUI cases.

Minnesota’s appellate courts certainly believe so. One recent example comes from the case of State v. Koppi (Minn. 2011) where our own Supreme Court ruled in the driver’s favor, but did so in an interesting way. In the Koppi case, the officer (no doubt honestly) described the odor of alcohol as “slight.” The Supreme Court emphasized this characterization, noting that 95% of all drunk drivers exhibit at least a “moderate” or “strong” odor of alcohol (at least, according to the officer - a point we’ll revisit in a moment). The court ruled in Koppi’s favor largely because he only had a “slight” odor of alcohol.

Compare Koppi with State v. Nur (Minn.App. 2011), which dealt with the exact same legal issues . . . but had a dramatically different result. Although both cases involved DWI arrests, the officer in Nur’s case described his odor of alcohol as “strong.” When the court ruled against Nur, it emphasized the difference between a “slight” odor of alcohol and a “strong” odor, and adopted as fact the assertion that 95% of drunk drivers exhibit a “moderate” to “strong” odor of alcohol. In State v. Mahoney (Minn.App. 2011), another case with legal issues identical to those in the Koppi case, the court stated, “the deputy in this case testified that he smelled a “strong” odor of alcohol on Mahoney's breath. This evidence stands in contrast to evidence that Koppi had only a “slight odor of alcohol.” So, it’s clear that the courts put great weight on how strong any alleged odor of alcohol really is.

This just begs the question, “when a police officer describes an odor of alcohol as “slight,” “moderate” or “strong” do they have a scientific basis for doing so?” Put another way, when a person’s breath is described as having a “strong” odor of alcohol instead of “slight,” does that actually mean that the driver is more drunk? Does odor of alcohol provide any meaningful indication that someone is “intoxicated,” or does it just merely mean that they may have consumed alcohol?

A scientific study, supported by the Insurance Institute for Highway Safety and published in a peer-reviewed journal, quickly determined that odor of alcohol is a mostly useless indicator when deciding whether to arrest a driver for DWI. In fact, after conducting their study, the authors actually came up with this conclusion:

Odor strength estimates were unrelated to BAC levels. Estimates of BAC level failed to rise above random guesses.

This study confirmed - via the scientific method - what our attorneys have long suspected. An officer’s description of the odor of alcohol as “strong” is just as useless a fact as if the officer had called it “slight” or “overwhelming.” Someone who really is drunk will be described as having a “slight” odor of alcohol, while someone who is perfectly capable of driving will, as often as not, be described as having a “strong” odor of alcohol.

This type of evidence, which doesn’t even rise to the level of “random guesses,” should never be presented to a jury in a DWI case, and should not even be used to support probable cause to arrest. We continue to educate the courts about how useless this “evidence” really is, but until the day comes that we no longer read about the distinction between “slight” and “strong” when describing odor of alcohol, our only choice is to fight, and fight, and fight!

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The mere odor of alcohol about a driver’s person may be indicia of alcohol ingestion, but is no more a probable indication of intoxication than eating a meal is of gluttony.

Saucier v. State, 869 P. 2nd 483 (Ak. App. 1994) (emphasis added).

Whenever drivers are arrested for DWI, the police will write a report that describes the reasons why, in their opinion, the driver was impaired by alcohol. Nearly every officer will describe an “odor of alcohol” alongside other observations like “bloodshot, watery eyes” and “slurred speech.” Judges, prosecutors, and even some defense attorneys will incorrectly describe these observations as “indicia of intoxication,” implying that each of these confirms that someone is drunk. This could not be further from the truth.

At best, these “indicia” may reveal alcohol consumption – dramatically different that alcohol intoxication. While nobody can truly get drunk without first consuming alcohol, nearly everyone is able to have a drink without immediately becoming drunk. Yet, too often, many consider these “indicia of intoxication” as all the evidence necessary to provide probable cause to arrest a driver, or even to provide proof beyond a reasonable doubt to convict a driver.

How have these “indicia of consumption” (from this point on, I will never again refer to them as “indicia of intoxication,” and you shouldn’t either) gained such widespread use and credibility?

• Partially from common usage - every police report I’ve ever seen has described the arrested driver has having smelled of alcohol, while having bloodshot, watery eyes. Some will even “grade” the odor of alcohol (after the driver has already submitted to a test), describing it as “moderate” “severe” or “overwhelming” depending on the circumstances.
• Partially by acceptance by the courts - some judicial decisions are based largely on whether or not the arresting officer described the odor of alcohol as “moderate” compared to “slight.”
• But, in my opinion, these indicia of consumption have become so commonplace in the courtroom because defense attorneys have not done their job to attack them.

The attack starts by simply calling these observations what they are - indicia of alcohol consumption. By doing so, we also inform the court and the jury what they are not - indicia of alcohol intoxication. But these are just labels, and while labels have power, a true attack requires more muscle. And that’s where the use of hard science comes into play.

Too many attorneys try to use the “law” to trump the State’s “science.” That’s rapidly changing - nowadays, its far more important to fight science with science, and to shed light on government practices that have gone unchallenged for too long, convicting too many innocent drivers.

Coming up, we’ll discuss some of the most overblown and overemphasized indicia of consumption that find their way into the courtroom: Odor of alcohol, bloodshot/watery eyes, and some of the more ridiculous “field sobriety tests.” And then we’ll show you exactly how each and every one is refuted by hard science.

And finally, we’ll explain why this is probably the most important topic imaginable for the future of DWI defense in Minnesota.

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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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Anyone will be upset after being arrested for DWI. They are usually put in handcuffs, transported in the back of a squad car to a nearby (or not-so nearby) police station, and then told to submit a sample of blood (ouch) urine (embarrassing) or breath (inaccurate). After that, many are thrown in jail; others post as much as $12,000 in bail, while others need to find a ride home and a way to get their car out of an impound lot.

After this incident has robbed them of their dignity, many are then even more shocked to discover that they are being charged with not one crime, but two, based off of this arrest. While this seems illegal, it’s actually common, and a good defense attorney can work this to your advantage.

There are two types of DWI Crimes in Minnesota: 1) “driving while impaired” and 2) “per se intoxication.” There is only one real difference between these two crimes, and that is what type of evidence the State can use to prove guilt.

Driving while impaired means just that: the State must prove beyond a reasonable doubt that you were impaired by alcohol or drugs while you were driving. The type of evidence in this type of case ranges from performance on field sobriety tests to the arresting officer’s “opinion” of your level of impairment to the reason the police office stopped your vehicle. Note that for this type of offense, it’s not necessary to prove an alcohol concentration above a .08 - sometimes a driver’s alcohol test result isn’t even relevant.

Per se intoxication, on the other hand, doesn’t mean that a driver was a danger to anyone on the road. In fact, someone who is per se intoxicated might not even feel the effects of what they drank. Instead, per se intoxication just means that someone’s alcohol concentration was at or above .08, as measured anytime within two hours of driving. You can perform perfectly on a field sobriety test and enunciate every word flawlessly, and still be guilty of per se intoxication - if the State has a test result that “proves” you were above a .08.

Back in the day, the only offense drivers could be charged with was “driving while impaired.” These are the types of drivers that can be the most dangerous. However, in close cases, they are also the types of drivers that are hardest for a prosecutor to convict.

Because it can be hard to convict an otherwise safe driver of driving while impaired, the legislature chose to pass a per se law and create a level of alcohol concentration that automatically renders someone “drunk.” This use of “science” makes it far easier for prosecutors to get convictions. Obviously, any prosecutor would rather just flash a test result in front of a jury, say “this number is higher than .08," and get a conviction, than actually prove that someone was impaired!

Of course, these per se laws were both a blessing and a curse for prosecutors. A blessing, because now it’s so much easier to convict people who otherwise do not appear impaired - just look at the test result! However, it’s also a curse, because if they don’t have a test result to rely on, most prosecutors won’t even bother to litigate a driving while impaired case.

That’s where we come in: we often gear our defensive strategy towards getting that test result suppressed, which forces the prosecutor to try their case the “old fashioned” way. Whether that test result is an example of junk science, flawed logic, or the secretive workings of the incomprehensible Intoxilyzer 5000 breath test machine, if there is a way for us to get it suppressed, we will get it suppressed. And without a test result, the vast majority of prosecutors will lose interest in gaining a conviction, and seriously consider settlement or dismissal.

You can feel stone sober and still commit the crime of driving while per se intoxicated. Winning your case means hiring an attorney who knows every possible way to attack the State’s best evidence - a test result - and get it suppressed. If you’ve been charged with driving while impaired, driving while over a .08, or both, contact Ramsay Law Office as soon as possible. We’ll carefully explain the legal process to you and answer your questions.

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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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            Minnesota uses three types of chemical test to investigate DWI cases. There are breath tests on the Intoxilyzer 5000EN. Then Minnesota has its unique take on urine testing. The third type of test is the blood test; a type of test used in nearly every state for DWI prosecutions and considered the “gold standard” with respect to value as evidence.

            Despite the massive problems with the Intoxilyzer, and the overwhelming criticism of its urine testing regime, the Minnesota Legislature passed a bill and signed into law by Governor Pawlenty, seriously undermining its last, best chance at equitably enforcing our DWI laws. Starting July 1, 2010, it appears that almost anyone a police officer chooses can draw a driver’s blood - not just registered nurses, EMTs, and the other specifically listed persons currently authorized by statute.  The law protects them from civil suit if they were to cause infection or other injury.

            This is troubling for numerous reasons, the least of which is the fact that blood draws, if improperly performed, can be painful, traumatic, and can transfer infectious diseases. Moreover, the current law is likely unconstitutional.

            Currently, blood tests for evidentiary purposes are deemed constitutional - but not by much. In the Supreme Court case that first authorized these types of blood draws, the Court clearly explained that such a test is only reasonable where it is “taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions that would arise is a search . . . were made by other than medical personnel or in other than a medical environment.”

            Police officers with limited training have routinely drawn blood in Cottage Grove, Woodbury and a few other jurisdictions. We expect that to expand.  Soon, that Supreme Court’s warning 45 years ago will be ignored, at least in Minnesota. The Legislature just legalized a practice that has opened the door to roadside blood tests by officers. Instead of blood drawn “in a hospital environment according to accepted medical practices,” we fully expect cops to routinely suck drivers’ blood on the hood of a filthy squad car at the side of the road.  Rest assured, we plan on fighting this law at the first available opportunity.

            At Ramsay Results, part of our job is to keep current on the latest changes in the law, so that we can effectively represent our clients. If you’re arrested for a DWI - especially if the arrest involves a blood test - contact Ramsay Law Firm immediately.

Please view our website at Ramsay Results

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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!

Please view our website at Ramsay Results

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Recently, a headline from various Minnesota publications - Drunken Mother Led Chase, Her Two Kids in Tow – captured my attention. A Woman had her two sons, ages 2 and 4, in a car and an open bottle of rum in a diaper bag when she led police on a chase last week in western Hennepin County, police said Wednesday. 

This is, indeed, a tragic situation. In 2008, 7 percent of children age 14 and younger killed in car crashes were passengers in a car with a drunken driver, according to the National Highway Traffic Safety Administration. Hennepin County alone usually sees three to four cases a year involving a parent who has been drinking and is driving with child/children in the car. 

Please note, that merely being charged with child endangerment has consequences that are much more severe than a drunk driving conviction, which are potential loss of license, potential jail, fines, probation, etc. If child endangerment charges are filed, it’s possible for child protection to become involved and, in extreme cases, the state can take away a parents’ children. 

If you are facing similar charges,

CONTACT RAMSAY LAW FIRM AT 651.604.0000 IMMEDIATELY

TO PROTECT YOUR PARENTAL RIGHTS

If you are facing these types of charges, Ramsay Law Firm has and continues to represent many cases like this; we realize our clients underlying chemical dependency issues that helped to cause a situation like this and our goal is to help beat the charges or minimize the consequences.

Please view our website at Ramsay Results

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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.

Please view our website at Ramsay Results

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Nationally recognized DWI lawyer and one of the very best in Pennslyvania, Justin McShane, has posted to his blog a new article about Standardized Field Sobriety Tests (SFST).

Mr. McShane points out that these roadside tests provide little information to a jury.  Most officers do not conduct the tests properly.  If the strict critera are not met as the National Highway Traffic Safety Administration (NHTSA) requires, the results are useless. The manual published by NHTSA says the tests are valid ONLY WHEN:

1.  The tests are administered "in the prescribed, standardized manner";
2.  The proper "clues" are used to assess the driver's performance; and,
3.  The standardized criteria are employed to interpret that performance.

As Mr. McShane reminds us, the manual states, "IF ANY ONE OF THE STANDARDIZED FIELD SOBRIETY TEST ELEMENTS IS CHANGED, THE VALIDITY IS COMPROMISED"!

Most importantly, the blog notes that the testing is based on faulty assumptions. 

This is worth exploring.  Consider the following:

Q:  How many drivers are required to pass such physical tests before the state gives them a license, other than eye testing? 
A.  Physical Testing is not a general requirement in Minnesota. 
 
Q:  If the officer does not know how well a driver will perform without having anything to drink, what baseline does the officer compare the driver's performance? 
A:  The officer bases a driver's performance on how well the average person would do under ideal conditions. 

Officers are trained not to use such testing for everyone.  The manual acknowledges the SFSTs are not valid for people more than 50 pounds overweight, for example.  But this is frequently ignored by both police and judges.  (An example of this can be found in a recent newspaper article, "Judge Rejects Obesity Defense in DWI Trial.."

I strongly encourage anyone who plans on consuming alcohol to prearrange for a sober ride home.  For those who don't, start practicing...

Please view our website at Ramsay Results

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

"Smoking Gun"

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

See Smoking Gun Email

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

See Affidavits of BCA Scientists David Edin and Karin Kierzak

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

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

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

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

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

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

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