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

In the wake of Missouri v. McNeely, prosecutors, defense attorneys, and judges are all being forced to take a very careful look at the Fourth Amendment, and the new life that the U.S. Supreme Court recently breathed into the constitutionality of DWI cases.

We recognized immediately how far reaching the impact of the McNeely case would be, particularly in Minnesota, and have been continually surprised by the amount of prosecutors (and even defense attorneys) who don't seem to understand how the Fourth Amendment works.

To try and simplify things, we've created a handy flow chart as a teaching tool. Flow charts are a time-honored method used by law students around the country who are trying to understand even the simplest legal concepts. They lay out a simple roadmap to follow and can help "visual learners" grasp concepts that aren't always easy to pick up from just reading dense case law.

Obviously, this chart simplifies things to a degree (a surprisingly small degree) and is more of a "cheat sheet" for those with knowledge of the law, best used to remind them of just how fundamentally basic it is to apply the Fourth Amendment to a DWI search. We'll discuss each step of the process in upcoming blogs.

But without further ado, here's the chart (click this link for the simplified version). This chart should make it easier to see exactly how much of an impact the McNeely decision has in Minnesota, and how difficult it will be for prosecutors to introduce any test results in pending and future DWI cases. Feel free to print it out!

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Last week a man was arrested by Woodbury, Minnesota police on suspicion of driving while impaired (DWI). Once at the Washington County jail, the officer asked the man to provide a urine sample. The man urinated in a urine collection bottle that contained a white preservative called sodium fluoride. Instead of handing it to the officer, he drank his own urine. All of it.

Now in Minnesota it is a crime to refuse a DWI test. The crime is more severe than taking and failing the test in most circumstances. According to the local newspaper which first broke the story, the driver will be charged with that crime. While this guy will likely be fodder for late night comedians around the world, he shouldn't plead guilty to the crime to refusing to submit to a DWI test.

We believe the statute making it a crime to refuse a DWI test is unconstitutional, and here’s why: Blood, breath and urine tests are searches, which invoke the fourth amendment. Warrantless searches – like this one presumably was – are generally unconstitutional and the results of those searches can’t be used by the government, unless a person gives their consent to a search (test). If the test was consensual, the government doesn’t need to worry about getting a warrant, and the results are now admissible in court. The huge elephant in the room is the fact that Minnesota's test refusal law makes it a crime for a citizen to refuse to waive his constitutional right to say “no thank you, get a warrant” whenever the police attempt to conduct a warrantless search.

We've challenged Minnesota's DWI test refusal law for years. We were successful in a test refusal case at the Minnesota Court of Appeals in 2007, but the Minnesota Supreme Court reversed that case in a 4-3 decision two years later. That reversal was where the Minnesota Supreme Court crafted their "single-factor-exigency" doctrine, which effectively said, “yes, blood/breath/urine tests are indeed searches, but the Fourth Amendment will never apply to them so law enforcement doesn’t need to even think about getting a warrant.”

Fortunately, the United State Supreme Court agreed with the three dissenting judges in Netland and struck down single factor exigency last month in Missouri v. McNeely. Although the U.S. Supreme Court didn't expressly overrule the Netland case, by invalidating single factor exigency and requiring search warrants in DWI cases, it cuts the legs out from the majority's opinion in Netland and essentially overturns the decision.

No Minnesota court has ruled on the constitutionality of Minnesota’s test refusal law since McNeely, but we expect our appellate courts to eventually find the law unconstitutional. Until then, pleading guilty to DWI test refusal doesn’t make sense-- even for those who chose to exercise their constitutional rights by . . . drinking their own urine.

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Minnesota Society for Criminal Justice

2013 Annual DWI Defense CLE – June 14, 2013

Recognized as the top DWI CLE in Minnesota

Featuring Prominent Local and Nationally Recognized DWI Attorneys

*** Recently Added *** Panel Discussion on Missouri v. McNeely

Every Minnesota DWI attorney should attend this seminar! Attendees will receive McNeely v. Missouri motions, memoranda and other documents. All materials will be provided on CD.

8:30 am                        Registration and Welcome

9:00-9:45 am                 View From The Appellate Bench:

The Honorable R.A. (Jim) Randall

9:45-10:30 am               Legislative and Case Law Update:

Douglas Hazelton

10:30-10:45 am            Break

10:45 am                      Enhancing DWI Penalties with Prior Implied Consent Revocations:

Dave Risk

11:15 am                      Prescription Drug DWIs and Revocations:

Jeff Sheridan

NOON                           Lunch (Included)

1:00-1:30 pm                 What Not to Do and How Not To Do It:

Samuel McCloud

1:30-2:30 pm                 Representing the Mentally Ill DWI Defendant:

Anna McLafferty (National Alliance on Mental Illness of Minnesota)

2:30-2:45 pm                 Break

2:45-3:30 pm                 McNeely – Vindication and Application of Netland, Shriner and Wiseman:

Panel Discussion by Lead Attorneys:

Chuck Ramsay, Jeffrey Ring, Jeff Sheridan

3:30-4:30 pm                 Standardized Field Sobriety Testing – Problems and Procedures:

Rebecca Rhoda Fisher, Sharon R. Osborn, Pamela King

4:30 pm                        Adjourn for Social Hour

No prosecutors will be permitted. Click here for the flyer, more information and registration.

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BREAKING NEWS: 

TODAY the United State Supreme Court vacated a Minnesota DWI Urine test case and remanded back to Minnesota. 

This means that Urine & Breath test cases also are affected by the McNeely decision. 

This marks the end of most of Minnesota's DWI statute.

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Our own Charles Ramsay, known and respected across the country for his legal knowledge, appeared on WCCO Channel 4 News last night to provide his analysis of the recent Supreme Court decision in Missouri v. McNeely.

While prosecutors are publicly downplaying the impact of the decision, Ramsay explained how this broad reaching decision will affect not only blood test cases, but also breath and urine cases, and that law enforcement agents will need to quickly change their current procedures or risk having all test results thrown out of court.

You can watch the video of his interview below:

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Charles Ramsay appeared on KSTP Eyewitness 5 News last night to discuss the recent Supreme Court decision in Missouri v. McNeely and provide his experienced analysis.

The article associated with the interview does a good job of laying out the basic facts of the McNeely case, as well as discussing the legal holding in the case. We'd suggest reading it.

Make no mistake - this decision will have a tremendous impact on all future DWI cases. This case marks an important shift towards a stricter interpretation of our Constitution's Fourth Amendment, upholding personal privacy rights against the steady onslaught of decisions that have steadily eroded our constitutional protections in the name of "efficiency."

A healthy respect for everyone's privacy does nothing to prevent law enforcement from doing their jobs - instead, it ensures that fewer innocent people will be subjected to intrusive searches on the whim of police officers. Hundreds of DWIs may be thrown out of court as a result of this decision, but in the long term, the legal system will be further strengthened and we will see less examples of "rogue" cops who would like to act with as little judicial oversight as possible.

Expect much more litigation in the aftermath of the McNeely decision, as courts nationwide (including Minnesota) come to terms with exactly how far-reaching the impact of this decision actually is.

Here's the video:

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Completely winning a DWI case requires a lot more work than most people realize, and a lot more smarts than most people give credit for. But it also requires a special brand of creativity.

Recently, we used what we like to call, “Judo Lawyering” (exploiting a legal doctrine designed to assist prosecutors in order to undermine the State’s own case) to win our client’s test refusal case. The facts: our client, arrested for DWI, did not answer the officer when asked if she would submit to a blood, breath or urine test. Under the common interpretation of Minnesota’s DWI laws, the officer deemed her “unresponsiveness” a refusal to submit to testing, revoked her driver’s license for one year, and had her charged with the crime of refusing to submit to DWI testing.

At first glance, the odds were stacked against us. Most prosecutors will tell you (repeatedly) that the law regarding test refusal in Minnesota is clear: A refusal need not be indicated by express language, but can be indicated by conduct, lack of conduct, or almost anything in between. Of course, this means that failure to respond to a test request is typically considered a refusal.

However, we’re never ones to accept a case at “first glance.” Instead of folding, we challenged the revocation at the Implied Consent Hearing by raising a creative theory of defense: our client, although conscious at the time of her arrest, was incapable of withdrawing her consent – and thus could not refuse. We even brought in an expert to testify that our client was suffering from a Post-Traumatic Stress/Anxiety Attack at the time the officer made the request.

This defense was based on a little known provision of the Implied Consent Law, designed to allow peace officers to take a driver's blood or urine without their consent, a provision usually used against unconscious or semi-conscious drivers (even driver’s conscious enough to say “no”).

We used this provision of the law to our client’s advantage. After carefully, creatively and persuasively presenting our argument, the court agreed with us and ruled that because of her anxiety attack, our client was incapable of refusal – throwing out the test refusal entirely and restoring her driving privileges.

Sometimes a little creativity can go a long way.

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As we discussed previously, the McNeely decision could have a huge impact on the way DWIs in Minnesota are handled in the future. The specific question presented to the Supreme Court of the United States (“SCOTUS”) in McNeely is as follows:

“Whether a law enforcement officer may obtain a nonconsensual and warrantless blood sample from a drunk driver under the exigent circumstances exception to the Fourth Amendment warrant requirement based upon the natural dissipation of alcohol in the bloodstream.”

We know how the Minnesota Supreme Court answered that question; the holding in the Netland case was “the evanescent nature of the evidence creates the conditions that justify a warrantless search.” If the SCOTUS rules the other way - if they rule that a warrantless search is not justified solely on the basis of exigent circumstances - the decision in Netland will no longer be good law.

Of course, the SCOTUS could simply decide that exigent circumstances always apply to DWI searches, effectively agreeing with the current state of Minnesota law. However, if they choose to rule the way we think they will (upholding the Fourth Amendment and refusing to further erode the protections afforded by that amendment) the most important question will be “is there ever a circumstance where law enforcement can perform a chemical test without a warrant?” And the answer to this question is what will determine how the McNeely decision impacts Minnesota.

In many states, the argument could be raised that “exigent circumstances” don’t matter, because drivers will usually consent to a search (which is another exception to the warrant requirement). However this argument may play out in the various states, Minnesota is one of a handful of states that have gone to the extreme measure of criminalizing test refusal (the act of withholding consent). In most states, withholding consent results in a longer license revocation and a little less evidence of impairment at a criminal trial; in Minnesota, withholding consent still results in a longer license revocation . . . but also results being charged with a completely new, aggravated crime.

If I tell you to give me five dollars or I’ll punch you in the jaw, and you hand over the money, can anyone honestly believe that your act was consensual? A sane person would obviously answer “no” and that’s the same basic situation in Minnesota. It is difficult to imagine how a judge could rule that someone who agrees to a chemical test in Minnesota, after being directly told by a police officer that “refusal to take a test is a crime” did not feel coerced into agreeing to submit to that test. Now, nothing decided in a court of law is ever that simple, but if sane heads prevail, Minnesota will either have to do away with their criminalization of refusal, or be unable to rely upon the “consent” exception to the warrant requirement.

Which brings us back to the question, “ “is there ever a circumstance where law enforcement can perform a chemical test without a warrant?” Put another way, “can police obtain a warrant in a reasonable amount of time, in the knowledge that a driver’s alcohol concentration may be decreasing by the hour?” This type of analysis is performed regularly in other states (and was the state of the law in Missouri before the McNeely case), but Minnesota law enforcement is a little behind the curve on getting late night warrants (at least, that’s what they tell us whenever we put them on the stand . . . )

But even if our law enforcement will say it takes too long to get a warrant, the fact is that the Legislature has put all the procedures in place to ensure that getting late night warrants as quickly as possible isn’t all that difficult. Telephonic warrants are authorized by the Rules of Criminal Procedure, and our courts have already demonstrated that the procedure is perfectly valid. In fact, law enforcement was getting telephonic warrants in under an hour . . . back in 1993, before every teenager had a cell phone and every officer had internet access.

So, if the SCOTUS tosses the “exigent circumstances” argument as we expect, it will have a tremendous effect on both pending and future DWI cases. Because our refusal law, should it remain on the books, will blow the “consent” exception out the window, the admissibility of test results in Minnesota DWI cases will hinge on whether law enforcement had enough time to obtain a warrant. Currently, every officer we cross-examine says basically the same thing, “I didn’t even consider getting a warrant” or “I have no idea how to do that.” That’s a far cry from “there was not enough time to get a warrant because of X, Y, and Z.” And its even further from the truth - warrants can be obtained in less than an hour, perhaps as little as 20 minutes.

We could see a significant amount of DWIs dismissed in the aftermath of the McNeely decision. At a minimum, smart defense attorneys who are familiar with the law will have already laid the groundwork to raise such arguments once the SCOTUS issues their decision. And going forward, if the past is any guide, law enforcement (and sometimes even the courts) will be incredibly reluctant to change their ways and adapt to new circumstances, meaning that good defense attorneys will continue to get DWI test results thrown out of court long past the point where the government should have adapted.

But all this talk is focusing on people who submit to tests; what about those who do withhold their consent and refuse to submit to testing? McNeely could affect those cases too, and we’ll explain how in the next post.

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In 2009, the Minnesota Supreme Court upheld the DWI test refusal law in the case of State v. Netland 762 N.W.2d 202 (Minn.2009). In doing so, the court placed all its emphasis on the “fact” that alcohol in a driver’s bloodstream “rapidly” and “naturally” dissipates, reasoning that law enforcement would never have enough time to obtain a warrant for a blood, breath, or urine test before the evidence of alcohol consumption was destroyed.

Wait, a warrant for a blood test? As strange it is may sound, under the Constitution police are required to obtain a warrant prior to a chemical test for intoxication, because taking a blood, breath, or urine test is considered a “search” of your body, with all of the same Fourth Amendment protections as a search of your home. The case of Skinner v. Ry. Labor Exec. Ass’n, decided by the SCOTUS in 1989, makes that clear.

(The next four paragraphs are a very, very abbreviated explanation of how the Fourth Amendment applies to DWI chemical tests. If you already know this information, or just don’t have any interest, feel free to skip ahead.) Warrantless searches of any type are presumed unreasonable - meaning that when a search performed without a warrant, the court will apply the “exclusionary rule” and deny the state the ability to present any evidence obtained as a result of the warrantless search in court. This “fruit of the poisonous tree” doctrine exists to ensure that law enforcement and prosecutors respect the protections that the Fourth Amendment provides against police intrusions.

Now, the law is never that simple, and even though the Constitution says that a person’s right to be secure from warrantless searches and seizures, “shall not be violated” in reality the courts have crafted numerous exceptions to the warrant requirement over the years. One big exception - the one relied upon in the Netland case and the one currently being analyzed by the SCOTUS - is the “exigent circumstances” doctrine.

Long story short (too late?) the “exigent circumstances” doctrine recognizes that if crucial evidence will likely be destroyed in the time it would take for law enforcement to obtain a warrant, police have the right to go ahead and execute their search without one (after the fact, the police will have to prove that they had probable cause to perform the search). Generally, the courts are expected to review these types of warrantless searches under a “totality of the circumstances,” weighing the likelihood that the evidence would have been destroyed against the timeframe it would have taken law enforcement to obtain a warrant. This is the type of careful balancing that courts are good at, and the type of judicial oversight that has been used since at least 1966 and the SCOTUS case of Schmerber v. California.

However, in the Netland case, the Minnesota Supreme Court decided that there was no need to weigh anything - they ruled that every time a driver has any alcohol in their system, there is a “single factor exigency” that eliminates the need to even consider obtaining a warrant. Rather than address the “totality of the circumstances” test of Schmerber, the court essentially sidestepped the issue and created a new categorical exception to the Fourth Amendment.

That’s the current state of Minnesota law - no warrant needed, no questions asked. Which also means that Minnesota’s test refusal law is currently constitutional - there is no harm in criminalizing a driver’s refusal to submit to a search because the search can go forward whether the driver consents or not.
The McNeely case can go one of two ways. The SCOTUS can either agree with the Netland majority and say that, “the evanescent nature of the evidence creates the conditions that justify a warrantless search. It is the chemical reaction of alcohol in the person’s body that driver the conclusion on exigency . . .”

What is more likely is that the McNeely case will agree with the dissent in Netland, which stated, “I believe it is unwise to say that law enforcement is per se justified in taking blood-evidence evidence without a warrant in DWI cases. Rather, we should maintain our jurisprudence that requires the State, under a totality-of-the-circumstances analysis, to explain why law enforcement could have reasonably believed the blood-alcohol evidence would disappear before a warrant could be obtained.”

If the U.S. Supreme Court rules the way we expect, the “single factor exigency” doctrine will get drop kicked into history, and police in Minnesota (as is the case in many other states) will have to learn how to obtain telephonic warrants from on call judges before administering blood, breath or urine test. And as we’ll discuss in the next post, that will have a huge impact on both how DWIs are handled in Minnesota, and how the courts view the crime of test refusal.

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Most states increase the license revocation penalties for drivers who refuse to submit to alcohol testing, but Minnesota Impaired Driving Law straight up makes it a crime for a driver to refuse to submit to testing. We challenged the constitutionality of this law back in 2009, but in a 4-3 decision the Minnesota Supreme Court upheld the law  - holding that it was okay to coerce drivers with the threat of jail, solely because alcohol “rapidly and naturally dissipates” from a person's body. But in a case recently argued before the Supreme Court of the United States (“SCOTUS”) the highest court in the land could very well reshape how Minnesota looks at DWIs.

What is the current state of Minnesota law regarding DWI arrests and the crime of test refusal, and how could the SCOTUS change it? What impact could the McNeely decision have on pending and future DWIs? And how is the highest court in the land likely to rule? Stay tuned - we’ve got the answers, but couldn’t possibly address them in one blog.

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Earlier this year we posted our prediction for the top-10 DWI issues for 2012. As it turns out, we hit on four of the top five. Here are the top five DWI defense stories of 2012.

1.     DWI Vehicle Forfeiture – The Minnesota   Supreme Court ruled our way on a forfeiture issue in Patino v. One 2007 Chevrolet. Attorney Dan Koewler of our firm wrote the Amicus position supporting Patino. This case made it more difficult for the government to take vehicles in DWI cases.

2.      Source Code – The Minnesota Supreme Court issued the long awaited ruling in the consolidated Source Code cases related to the Intoxilyzer 5000EN breath test cases. In a 4-3 ruling, the Court held that this DWI breath testing device is good enough to be admitted into evidence. 

Despite the June order, many cases are still being litigated at the trial court level. Others were resolved after prosecutors were forced to offer very favorable deals. 

One sticking point is the so-called EPROM issue that we discovered in the pre-trial discovery. The BCA failed to properly transfer the tested and validated software onto the computer chips which operate and control each Intoxilyzer 5000 breath test machine. Because of this, we believe the breath test results are not admissible in a case unless the government proves in each case that the breath test machine in that case contains the software tested and validated by the BCA.

3.     Urine Testing – The Minnesota issued another opinion in a DWI case addressing DWI urine testing. In State v. Tanksley, the court ruled that DWI drivers are not entitled to a so-called Frye hearing when challenging urine testing. Although some prosecutors and judges had hoped this ruling would put an end to urine testing challenges, we continue to prove them wrong with a series of victories, one of which we reported here.

4.     Uncertainty of Measurement – Although this issue continues to percolate, our firm has reviewed documents showing the BCA recognizes the need to establish the measurement error in each of its testing methods (blood, breath and urine) and in fact is preparing to do so. Courts, too, are recognizing the need for the government to prove alcohol test results within the measurement uncertainty. We are able to capitalize on this, as we did with this victory.

5.      DataMaster – In 2012 Minnesota finally stopped using the Intoxilyzer 5000 for breath testing and began exclusive use of the DataMaster breath test machine. We prepared ourselves last year by attending several DataMaster courses, including completing training at the manufacturer’s facility in Mansfield, Ohio. 

Although the DataMaster is a pretty good alcohol breath test machine, this year we discovered documents that the Minnesota crime lab is having difficulty with the machines. See the video Fox9 reported our discovery earlier this year. We will keep you updated as we continue to litigate these cases.

Next up:

Looking forward to 2013: Our predictions.

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Chuck Ramsay of our own Ramsay Law Firm again appeared on Fox 9 News to provide his experience and insight regarding the effects of the recent Supreme Court decision dealing with the Intoxilyzer 5000EN, and what effect this decision will have on pending and future DWI cases.

Watch the video to see Ramsay talk about what types of evidence can be presented to a jury, what wight a juror should give Intoxilyzer breath test result, and the importance of relying upon good scientific principles when enforcing our DWI laws.

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We’ve had some time to review the recent 4-3 decision regarding the Intoxilyzer 5000EN, and have already received a lot of phone calls and emails regarding the impact this decision will have on both our clients’ cases and the thousands of breath test DWI’s that are pending throughout the State of Minnesota. While it’s too soon to provide a detailed analysis, some obvious points jump out of this decision.

For reference, you can again find the decision here.

Judicial Activism: This decision shows a clear bent towards judicially rewriting a key component of our DWI laws. The four justice majority ignored the plain language of our test refusal statute in this decision, which will have a huge impact on wrongful convictions and inappropriate license revocations.

To explain - our law currently makes it a “refusal” for a driver to not comply with numerous scientific protocols - not providing 1.1 liters of air or not blowing at a rate of .15 liters per second, for example. If these conditions are not met, the test is deemed “deficient” and the driver is charged with refusal. Our legislature had strong, solid reasons for writing the law this way, and ensuring that the objective calculations of a machine, versus the subjective interpretations of a police officer, would determine who was and was not providing a valid breath sample.

However, when presented with unrebutted evidence that the BCA not only knew that the Intoxilyzer had a fatal flaw that incorrectly deemed samples as deficient, but also intentionally refused to implement a software patch that would correct the error, a majority of our Supreme Court chose to simply rewrite the refusal statute. Now, even though everyone knows that the Intoxilyzer has a huge software bug affecting so-called “deficient” samples, the Court opened the door to present the testimony of a police officer to explain that the driver simply wasn’t blowing at a rate of .15 liters per second, or didn’t actually provide a full 1.1 liters of air. Besides the pure absurdity of expecting anyone to be able to make those determinations, it is all but certain that every officer is going to testify in this manner in every case - rewriting our laws and covering up a known software error that has gone uncorrected for years.

Hiding the Ball: This decision also takes the troubling step of actively hiding known software errors from every jury in the state. Everyone has the Constitutional right to present a complete defense against the state, in order to prevent our system of justice from turning into a system of sham trials. However, in this case the majority held that evidence of errors with the Intoxilyzer, such as the effect that radio frequency interference has on test results, or the fact that the machine itself is only accurate within a 10% range of values, are all inadmissible. A jury, asked to determine if someone is guilty or innocent based upon a single printout, will never be allowed to hear this evidence before being asked to decide how much weight to give an Intoxilyzer test result.

Future Due Process Concerns: This narrow 4-3 decision creates the appearance that Intoxilyzer test results are now virtually unassailable in a court of law. That’s not entirely true - there are still numerous defenses that can be raised against test results produced by this outdated and flawed machine. What’s troubling about this decision is not just the impact it has on current Intoxilyzer cases . . . but what impact it will have on future cases. What will happen in the future if the State wants to hide even more evidence from a jury, or when the State needs to have our courts rewrite another statute to make it easier to convict. In those situations (and if the past is any indication, they will certainly arise) the State can simply point to this decision as support for the conclusion that hiding evidence and bypassing our legislature are the appropriate ways to uphold the constitution.

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The Minnesota Supreme Court has just released its 4-3 opinion regarding the use of the Intoxilyzer 5000 in thousands of Minnesota DWI cases.

You can view the opinion here. We'll be providing a detailed analysis of the 38 page decision once we've had an opportunity to carefully review it, but upon first reading, the decision is best summed up with a quote from Justice Page (dissenting):

"The practical result of the court’s holdings is that defendants will be unable to challenge Intoxilyzer 5000EN results. Despite evidence that the test has a margin of error, that radio frequencies from cell phones can disturb the accuracy of the test, and that the test may erroneously produce a deficient sample, a defendant may not raise the source code as a potential cause of an inaccurate or deficient sample. Denying the accused an opportunity to raise source code issues effectively eliminates the accused’s opportunity to challenge the results."

Stay tuned.

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We’ve just received word that the Minnesota Supreme Court intends to release its decision regarding the use of the Intoxilyzer 5000 tomorrow, June 27, 2012.

Be sure to check back tomorrow mid-morning. We’ll be posting the entire decision here along with our analysis of what it means.

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MSCJ, the premier Minnesota criminal defense lawyers organization representing those charged with DUI, announces its annual continuing education seminar. 

This is a must attend event for every Minnesota DWI Lawyer, particularly those representing clients with source code cases.

WHERE: The Northland Inn (soon to be Marriott Northwest) 7025 Northland Drive Brooklyn Park  (take Boone Avenue exit off I-694 and Hotel is just north).

WHEN: June 22, 2012.

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This week, we headed down to Mansfield, Ohio to get some first hand knowledge about Minnesota's new breath test machine, the DataMaster. Today, we toured the plant and attended several lectures regarding the science behind infrared spectrometry and fuel cell detection of alcohol. 

Tomorrow we get to grill several of the manufacturer's employees regarding the specifics of the machine that will be used in Minnesota.

Stay tuned- we'll be posting more about our impressions and analysis of Minnesota's new breath testing device in the upcoming weeks.

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 Today the Minnesota Supreme Court has released the date for En Banc Oral Arguments regarding the consolidated Source Code litigation. Oral Arguments have been scheduled to be heard on December 1, 2011, at 9:00 a.m. at the State Capitol Building.

View all the briefs leading up to the Oral Arguments here.

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We’ve told you about problems with the Intoxilyzer 5000, Minnesota’s breath test machine. In 2008, Minnesota Lawyer reported on how we even uncovered a state secret that errors in the breath test machine’s software wrongly convicted people of test refusal. The State tried to keep it secret and continued to use the machine. 

This type of conduct occurs, not only in Minnesota, but in other states as well. Unfortunately, officials are rarely held accountable. It seems a group of Texans are changing that in Houston.

INTOXILYZER TECHNICIAN BLOWS WHISTLE

When a technician blew the whistle on Houston’s breath testing program – which, coincidentally, also uses the Intoxilyzer 5000 – her supervisors did nothing. So she quit, putting many breath test cases in jeopardy.

According to the blog, Life at the Harris County Criminal Justice Center -- An Insider’s View of What is Really Happening in the Harris County Criminal Courts, the Harris County District Attorney’s Office didn’t like this. They went after the former breath technician by convening a Grand Jury in an attempt to indict her for a crime.

GRAND JURY EXCLUDES PROSECUTORS FROM TESTIMONY!

Something went wrong along the way for the prosecutors. The Grand Jury ordered the bailiffs to keep the prosecutors out. As Murray Newman writes,

In legal terms, the proper response to this is "Holy Catfish, Batman."

Prosecutors are always in the room with Grand Jurors when they are interviewing witnesses. The only part they are excluded from in a Grand Jury is when the grand jurors deliberate. The Grand Jurors excluding the prosecutors from the testimony is kind of the equivalent of the President being booted out of a Cabinet meeting. It just doesn't happen. I mean, ever.

The prosecutors freaked and brought a motion before a judge to order the jury to allow them in. After the judge refused, the prosecutors appealed. Last week the court of appeals denied the motion!

GRAND JURY: ARREST THE PROSECUTORS!

It seems the Grand Jury wanted the prosecutors arrested according to the prosecutors’ briefs to the appellate court:

Just prior to being escorted out of the grand jury room by the bailiff, I observed the bailiff in her office and overheard the bailiff speaking in a telephone conversation. The bailiff said to the person on the phone, "They told me to arrest the DAs." From that, I assumed that the grand jury had instructed the bailiffs to arrest Mr. Hobbs, Mr. Morris and me if we remained in the grand jury room while the grand jury was attempting to question the witness.

See the local ABC television story for more details.

Amanda Culbertson, the breath testing employee who blew the whistle on shoddy maintenance of the breath test machines, is a hero and so are those on the Grand Jury. The prosecutors are scared, and may be guilty of criminal behavior themselves. At a minimum they’re guilty of dereliction of duty. Instead of ensuring that justice is served by seeking to convict the guilty based only on forensically sound evidence, they make a mockery of the judicial system and embarrass themselves and other good prosecutors by failing to uphold their constitutional duties.

Meanwhile in Minnesota, we await someone like Amanda Culbertson to step forward….

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The last source code brief is in! The Source Code Coalition filed its reply brief on behalf of thousands of Defendants and Drivers with the Minnesota Supreme Court on October 17, 2011.  This is the last of the briefs to be submitted to the Minnesota Supreme Court on this issue. We anticipate the Supreme Court will schedule a date for oral argument soon. 

Here are the other briefs filed in this matter pending before the Supreme Court:

Appellant’s Brief and Appellant’s Appendix and Index, filed August 29, 2011;

Brief and Appendix of Respondent (State of Minnesota Prosecution Liaison Counsel), filed September 28, 2011;

Respondent’s Brief and Appendix (Commissioner of Public Safety), filed October 3, 2011;

Brief and Appendix of Amicus Curiae, CMI of Kentucky, Inc., filed October 10, 2011; and,

Appellant’s Reply Brief, filed October 17, 2011. 

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Shoot First – Ask Questions Later

Under a shoot-first-ask-questions-later philosophy, the Minnesota Commissioner of Public Safety can take away drivers’ licenses without first conducting a hearing on the propriety of the revocation pursuant to the Minnesota Implied Consent Act. Although drivers may challenge the license revocation in court, it can take months before the case goes to court. Even in those cases where a judge ultimately orders license reinstatement, the damage is already done. There is no way to “undo” the loss of a license during the wait. But a major overhaul to the law may have so radically changed the legal landscape that the law is no longer constitutional.

Previous Constitutional Challenges to Minnesota’s Implied Consent Law

The Minnesota Supreme Court has found the basic premise of pre-hearing license revocation to be constitutional. In balancing the interests of public safety against the rights of individual drivers, the Minnesota Supreme Court upheld in Heddan v. Dirkswager (1983) that there were sufficient procedural safeguards to protect the private interest of the driver. At the time those protections included (1) the relatively short revocation period; (2) the immediate availability of a work permit; and (3) a speedy hearing.

After the legislature tinkered with the statute, the Minnesota Supreme Court warned the legislature in the 1994 Davis case not to further erode the procedural safeguards or it would strike down the law as unconstitutional. Although the court upheld the statute, it was troubled by the fact that “a court cannot undo an erroneous revocation,” because “full retroactive relief cannot be provided” and “even a day’s loss of a driver’s license could inflict grave injury upon a person.”

Minnesota Supreme Court: Law Violates Constitution

While it was not “prepared at [that] time to conclude that the legislation in question violate[d] either federal or state due process guarantees,” in 2003 the legislature removed drivers’ right to a prompt hearing. For the first time, the Minnesota Supreme found the law unconstitutional in Fedziuk v. Commissioner of Public Safety (2005), holding that that the law offended the constitution’s right to due process.

New, Radical Changes

Despite the Supreme Court’s early warnings and then later finding the Implied Consent Act unconstitutional, the 2010 legislature radically changed the implied consent law. In doing so, the legislature increased the duration of a first time misdemeanor revocation from 90 days to one year and completely removed the right to a work permit for those with an alleged alcohol concentration of .16 or more.

The legislature attempted to give the appearance of softening the blow to drivers by providing for “zero day eligibility” for ignition interlock. This is just a mirage. First, the administrative process is so unwieldy the Department of Public Safety has been unable to provide anything close to immediate reinstatement, even with the installation of the interlock devices. Second, the cost is prohibitive for most. While the costs vary, drivers must pay hundreds of dollars in fees for installation and monitoring to private carriers. They must pay a $680 reinstatement fee. Finally, they must fork over a four digit amount in advance for a one-year, non-cancellable insurance policy. Presumably, even if a court finds the revocation improper, it would be impossible to undo the erroneous revocation and provide full retroactive relief. Not only would the interim loss of the license inflict injury, but the driver would lose thousands in costs of the ignition interlock program and non-cancellable insurance. 

The Risk of Erroneous License Revocation is Higher Today Than Ever

Finally, the risk of erroneous deprivation is higher today than ever. The state continues to use the Intoxilyzer 5000 for DUI breath testing, which does not always work properly according to the judge in the consolidated source code case. Or, it relies on DUI urine testing using procedures not accepted by the scientific community – and not used at all in any other jurisdiction in the entire country.

Our firm is raising this issue in almost every DUI case.  There is no doubt it will eventually come before the Supreme Court.  Will it find the law unconstitutional? 

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Last week we told you that the scientific community requires blood, breath and urine tests be reported not as a certainty, but with a confidence interval that has a high probability of containing the true alcohol level. (This is not to be confused with results involving mistakes or blunders; uncertainty assumes that no mistakes or blunders have been made.) Therefore, due to the uncertainty in every measurement, the state must report a DWI alcohol test results with a range, not as a single number.

This raises some interesting questions for drivers in Minnesota who face criminal penalties or civil license revocation, or vehicle forfeiture.

Are there established confidence intervals for Minnesota DWI tests? 

Neither the Minnesota Commissioner of Public Safety nor the Minnesota Bureau of Criminal Apprehension (BCA) has published established confidence intervals for any DWI test in Minnesota (blood, breath or urine). 

Despite the 2009 National Academy of Science Report to Congress which requires that each lab analyze and establish confidence intervals for each type of test, Minnesota has failed. Nationally renowned attorney, Ted Vosk, has advocated with some success that no test result should be admitted as evidence unless it meets these criteria. (Note to practicing attorneys, judges and scientists: I highly recommend you read Mr. Vosk’s work along with the NAS report to get a better understanding. See others including Justin McShane.)

How can I use measurement uncertainty in my case?

One well respected scientist has analyzed the data from Minnesota’s Intoxilyzer 5000 to establish a confident interval. Analyzing test data provided by the Minnesota BCA of more than 44,000 breath tests, Rod Gullberg determined that the uncertainty of measurement of a .08 breath test in Minnesota’s Intoxilyzer 5000 EN is approximately nine percent. Rod G. Gullberg, Breath Alcohol Measurement Variability Assessment with Different Instruments & Protocols, 131 Forensic Science International 30 (2003).

This percentage increases with the level of alcohol. At an alcohol concentration of 0.20, the measurement uncertainty is even greater. One must have a thorough understanding of complicated mathematical and scientific concepts to use his formula. For more information, see his work at the Borkenstein Course.

So what does this mean for drivers with alcohol concentrations close to critical levels? The Minnesota legislature has mad .04, .08, .16, .20 critical levels of alcohol concentration.  In addition to other defenses, measurement uncertainty should be employed to defeat blood, breath and urine testing.

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Currently, the consolidated source code litigation, originally presided over by Judge Abrams, is up on appeal before the Minnesota Supreme Court. This has caused more than a little confusion in the various district courts, as each judicial district tries to decide how to proceed with DWI cases based on Intoxilyzer 5000EN breath test results.

Most counties seem to be of the opinion that they need to stay all proceedings pending a final decision by our Supreme Court. In our opinion, this is not only the smart option, but the only legal one. Minnesota Rule of Civil Appellate Procedure 108.01, subd. 2 makes it clear that our lower courts are prohibited from doing anything to affect the current source code appeal - which includes setting cases on for trial (cases that could then be “re-appealed” and effectively double the judicial system’s workload).

While most counties have followed this route, there are some exceptions - notably Anoka and Ramsey counties. In Anoka County, all of the previously stayed cases were returned to active judicial calendars after Judge Abrams issued his order. However, after the Minnesota Court of Appeals granted review of that order and the Supreme Court granted expedited review, Anoka County chose to reverse course - and continued to stay all Intoxilyzer breath test cases.

Ramsey County, on the other hand, who also originally stayed all of its Intoxilyzer cases, recently issued an order lifting that stay and ordering all cases to proceed. In light of Rule 108.01 and the currently pending motion to stay proceedings pending in front of the Supreme Court, it is unclear how much progress will be made on these cases . . . but as of today, every pending Intoxilyzer case is being pushed back on to Ramsey County judicial calendars.

It will be interesting to see how the situation in Ramsey County progresses. Maybe Ramsey County will reverse course in the same way that Anoka did (the coalition emailed the Ramsey County Court objecting to the new order). Or maybe Ramsey County will set hundreds of cases for trial, only to be ordered by the Supreme Court to cancel everything and wait for the conclusion of the appeal. Only time will tell, but for now, defendants and attorneys with Ramsey County DWI cases should be prepared to resume their cases while the final determination of whether Intoxilyzer test results are admissible is still up in the air.

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The Minnesota Supreme Court has accepted accelerated review of the appeal that was made of Judge Abrams' Order as part of the consolidated Source Code litigation. This means that rather than arguing this case to the Minnesota Court of Appeals before appealing to the Minnesota Supreme Court, the case is being immediately sent to the highest court in the land.  This should ensure the speediest possible resolution to the consolidated challenge to the Intoxilyzer 5000EN.

A copy of the Order can be seen here.

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Recognizing that Minnesota’s DWI test refusal law is more complicated that meets the eye, this week the Minnesota Supreme Court reversed the conviction of a man convicted of refusing to submit to a DWI test in State v. Koppi. The Court ruled that the trial court had given an erroneous jury instruction which did not accurately convey the law. The Court granted the driver a new trial as the error was not harmless. 

The case supports our law firm’s position that the criminal test refusal law is not as simple as, “did the person refuse to submit.” Just look at some of our previously blogs, including Refusing to Submit to a Blood Test Not Always a Crime In Minnesota. 

There are numerous other facts that a jury must find as well before a driver can be convicted of test refusal. Koppi says that the criminal refusal law, Minnesota Statute section 169A.20, subdivision 2, incorporates the requirements from section 169A.51, of the Implied Consent Law. It specifically held, “Refusing a chemical test is not a crime, therefore, unless it can be proven beyond a reasonable doubt that an officer had ‘probable cause to believe the person was driving, operating, or in physical control of a motor vehicle’ while impaired.”

Koppi held that Minnesota’s standard jury instruction for DWI test refusal does not accurately convey the law. The trial court in Koppi read the following to the jury:

Probable cause means that the officer can explain the reason the officer believes it was more likely than not that the defendant drove, operated or was in physical control of a motor vehicle while under the influence of alcohol.

10A Minn. Dist. Judges Ass‘n, Minnesota Practice—Jury Instruction Guides, Criminal, CRIMJIG 29.28 (5th ed. Supp. 2009).

The jury instruction contains three flaws:

1.            It does not require the officer to recite actual observations and circumstances supporting a finding of probable cause;

2.            It fails to include the requirement that the jury evaluate the totality of the circumstances from the viewpoint of a reasonable police officer;

3.            The instruction erroneously requires that an officer believe a driver was “more likely than not” driving while impaired, rather than the proper “honest and strong suspicion” standard.

Some defense attorneys may believe that amending the jury instruction from “probable cause” to “honest and strong suspicion” may be detrimental to the driver. But the new standard does not lower the standard; it merely gives greater guidance to the jury, taking away mathematical probabilities. 

Although the court did not provide an actual jury instruction to be used, the court’s guidance on developing a new standard included the requirement of “probability.”

The “honest and strong suspicion” standard requires more than mere suspicion, but less than the evidence required for a conviction. Probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.

The court left for another day whether the trial court could substitute its own determination for that of the jury whether the driver had been given sufficient time to consult with an attorney.  Meanwhile, the defense will continue to challenge Minnesota's test refusal law, including whether the statute is unconstitutionally vague and ambiguous.  See Minnesota's Test Refusal Law: Findings a Loophole in a "Knotty" Law.

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Yesterday the Commissioner of Public Safety filed a Petition for Accelerated Review with the Minnesota Supreme Court. This Petition follows the April 27, 2011 Order of the Minnesota Court of Appeals granting the Petition for Discretionary Review which was filed by counsel for Minnesota Petitioners and Defendants. 

You can view the Petition for Accelerated Review here.

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The thousands of consolidated DWI cases stemming from tests on the Intoxilyzer 5000EN, previously heard by Judge Abrams in the First Judicial District, have officially been accepted for review by the Minnesota Court of Appeals.

In an Order filed April 28, 2011, the Court of Appeals held that there were “compelling reasons” to grant review of Judge Abrams’ Order. While this case might ultimately be forwarded directly to the Minnesota Supreme Court, we are currently preparing to present our arguments to the Court of Appeals.

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Minnesota’s expansion of ignition interlock devices this summer may cause more problems than state officials anticipated. You might remember our previous blog about the earlier stages of this program, but now the “pilot” project is official. As of July 1, 2011, first time DWI arrestees may be required to install the devices in their vehicles in order to get their drivers’ licenses back in a reasonable period of time.

State officials might see the interlock device as a panacea for repeat DWI offenders (see below), but what I see are all of the potential problems that will arise. 

Minnesota Lawyer’s front page story this week, headlined, “DWI Law Changes Worry Lawyers,” cited Bill Lemons, the traffic safety resource prosecutor from the Minnesota County Attorneys Association, as saying,

[T]he program helps offenders get their lives back on track sooner because they can drive right away, and the ignition interlocks will mean safer roads for everyone else. In addition, it ensures offenders will drive legally instead of driving with a revoked license.

“We would like to see all [of those offenders] get the ignition interlock,” said Lemons. “The research shows that the program is only effective when the device is in the car. Absent that behavior changing program, the likelihood to re-offend goes right back to where it was.”

Defense attorneys paint a less-rosy picture. Jeff Sheridan, a criminal defense attorney from Eagan, told the paper the law fails to take into account that not every other state has an ignition interlock program. 

“What about the guy who is up here on business and gets arrested and his state doesn’t do interlock?” Sheridan said. “Is his home state is required to enforce the revocation? Is he supposed to put [a device] on his car anyway?

“I encourage the interlock device [with my clients] but assuming that there are going to be no problems is a bit of a step,” he said.

Kelly Keegan, an Anoka defense attorney, pointed out other limitations to the program, including the hefty price of participating - costs that may prevent many from using the device at all.

Minnesota Lawyer asked me about a bill pending before the legislature which would significantly increase the driver’s license revocation period for repeat offenders and for those with an alcohol concentration .16 or more.  As I told the weekly publication, the legislature’s tinkering will have unintended consequences. As just one example, the current version of the bill acts as an incentive for drivers to refuse testing, which is something that State undoubtedly wants to avoid.

Attorney Mike Bryant, a fellow blogger, brought up other interesting questions earlier this week, including:                   

                        -How well do these ignition interlock devices actually work?

-Who gets these government contracts? As Mike writes, “It can be a nice money making monopoly for some companies.”

I will be watching this issue very closely, including how other states have handled the problems that go hand in hand with ignition interlock. But for now, I agree with Minnesota Lawyer reporter Patrick Thornton, “Come this summer, DWI defense lawyers are going to be busy.”

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Judge Abrams noted that Minnesota officials and the BCA have been aware of the broken Intoxilyzer since at least 2006, but have refused to install corrected software.

The slope detection software … does reject under somecircumstances samples which are valid. … In situations where this result has been reported due to slope acceptance criteria in the 240 version of the software, the BCA could have implemented corrective software but chose not to update the instruments. This conclusion is confirmed by the testimony of the BCA witnesses.

Now that Judge Abrams has made official findings that the Intoxilyzer 5000 software does not work properly and that the BCA has a fix to correct the problem, it would be reasonable to believe we would stop using these broken machines for DWI alcohol testing. 

[T]he BCA was aware from the fall of 2006 onward that a change in the Source Code was made that caused, under some circumstances, previously acceptable breath samples to be rejected. This software, version 240, continues to be used with knowledge of this problem and without change or correction by the BCA.

Surprisingly, Minnesota continues to use these fatally flawed machines to revoke drivers’ licenses and put innocent people in jail. 

Why?

Perhaps the answer lies in the arrogance of state officials responsible for the use of the Intoxilyzer 5000EN. According to Judge Abrams:

There is a general perception that perfection and flawless operation is present in the Intoxilyzer and its test results. Those responsible for the operation and maintenance of the device have been defensive and at times outright hostile to the suggestion that problems may exist….

Luckily, we now have the evidence we need to suppress every Intoxilyzer test that reports a “deficient sample,” no matter how long the State continues to use this broken machine. Be sure to stick around for tomorrow’s blog, where we detail how every case where the Intoxilyzer reported a deficient sample should be dismissed . . . and why.

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Minnesota continues to use Intoxilyzer 5000 Despite Hundreds of Defective Breath Cases Annually.

Last month, Judge Abrams issued his consolidated Intoxilyzer source code order. In a case directly affecting more than 4,000 Minnesota DWIs – and thousands more indirectly – the court decided that the Intoxilyzer, while suffering from many defects, is not so flawed as to prevent the test results from being admitted into evidence in most cases. In other words, the test results are “close enough for government work,” but drivers’ attorneys are still free to present evidence attacking the results (even this conclusion is currently under appeal).

Few people realize that Judge Abrams did not find that all test results are admissible. He actually highlighted the fatal errors in the source code that wrongly reject perfectly valid samples, stating that, “In cases in which the Intoxilyzer 5000EN … reported a ‘Deficient Sample,’ the Source Code of the instrument does impact the reliability, solely, of this result. Evidence in such cases of a ‘Deficient Sample’ test report should not be allowed ….”

In the order’s Conclusion, the court indicates the machine reports a deficient sample even when the sample is not actually deficient.

There is one limited situation, as discussed earlier, in which the labeling of a sample as “deficient” arises from multiple causes. At least one of these causes is a consequence of the Source Code's instructions to the microprocessors and has little, if anything, to do with whether the sample is actually deficient.

Under my cross examination, BCA experts were forced to openly admit that the current version of the source code has more than three times the number of deficient samples as the prior version. According to the BCA’s own data, hundreds of drivers each year who provide a sample greater than 1.1 liters are deemed to have provided a deficient sample!

And “deficient samples” are almost always worse than outright failing the breath test. Under Minnesota law, it is a crime to refuse to submit to DWI alcohol testing. The statutes define test refusal as when a machine determines a driver has given a “deficient sample”. We have previously analyzed the crime of DWI test refusal, explaining how it is treated much more harshly than having an alcohol concentration of .08 or more.

We’ve been striving for years to bring these issues into the public spotlight. Now, with Judge Abrams’ order, we finally have the evidence we need to successfully debunk the myth that every driver who provided a “deficient sample” was somehow at fault.

Of course, now that we’ve unmasked these fatal errors in the source code, the State will stop using the Intoxilyzer . . . right? If only life were that simple: stay tuned for tomorrow’s blog, explaining just how long the State has known about these errors, and why they plan to keep on using the broken Intoxilyzer, regardless of its known flaws.

Then be sure  to check back on Thursday, when we will discuss exactly why Judge Abrams' order should results in the dismissal of almost any case where a "deficient sample" was reported.

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Today, the Office of the Minnesota Attorney General on behalf of the Commissioner of Public Safety and Prosecution Liaison Counsel for the State of Minnesota filed responses to the Appeal of Judge Abrams’ Order. The defense trial team appealed Judge Abrams’ Order on March 28, 2011.

You can view the State’s Response and Commissioner of Public Safety’s Response here.

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The briefs are in! Today both the state and drivers submitted written closing arguments to Judge Abrams in the consolidated breath test case. The Court will render its decision within 90 days.

Download the State’s Source Code Argument and the Drivers’ Source Code Argument.

Check back soon for feedback about the state’s arguments

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For years now, we’ve blogged about problems with the Intoxilyzer 5000 - and one problem in particular. In a typical scenario, a driver is arrested for DWI and told that they have to submit to a breath test. They try - and try, and try - but the machine will not accept the sample, and ultimately reports a “deficient sample.” These people are charged with the crime of Test Refusal (always a gross-misdemeanor, sometimes a felony).

In court, the arresting officer will usually say that the driver was trying to “fool the machine” by blowing around the straw, blocking the straw with their tongue, or not actually blowing any air. This may be true in some cases, but in our experience, its more likely that the driver WAS trying to give a sample - and the machine still rejected it, for reasons unknown.

The question is “who should the judge trust?” The arresting officer, the driver, or the machine? The answer matters, because if the court chooses to trust the officer, the driver is going to lose; if the judge decides to “trust” the machine, it means that the defense needs to have the opportunity to examine that machine’s source code - and the driver can win.

We recently won a huge case at the Court of Appeals that helps settle the matter. In Hansen v. Commissioner of Public Safety, we convinced the Court that it takes more than the testimony of the arresting officer to convict someone of test refusal - the machine itself needs to be analyzed. This is a potentially huge win for our clients and for anyone else charged with “refusal by conduct.” It means that the Courts are finally beginning to accept what we’ve said all along - the Intoxilyzer is not a perfect machine, and one area where it is prone to failure is when it deems otherwise-valid samples “deficient” for unknown reasons. 

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Minnesota is one of few states that actually make it a crime to refuse to submit to chemical testing (most simply to increase the duration of any driver’s license revocation). This has huge constitutional implications - such as violating a driver’s Fifth Amendment right against Self-Incrimination - but can also be misleading.

Despite what every Minnesota police officer will tell you, it may NOT be a crime to refuse to submit to a blood test after you’ve been arrested for DWI.

In fact, if you do refuse to submit to a blood test, and the government charges you with test refusal, we might actually be able to get the charges dismissed. That’s because Minnesota law specifically prohibits drivers from being punished for refusing to submit to a blood or urine test unless another test was also offered.

If an arresting officer told you that you’d be charged with test refusal if you did not submit to a blood sample, he or she was not telling you the whole story. If you were charged with test refusal without being offered a blood test AND either a urine or breath test, you’ve got a very good chance of outright winning your case.

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At the end of last week, the State finished presenting its evidence in support of the continued use of the Intoxilyzer 5000 to prosecute Minnesota drivers for DWI. All of the evidence has now been submitted to Judge Abrams; it is expected that he will issue an order in early 2011.

It was a long, hard road to get to this point, and far longer than it had to be - if the State had complied with our basic, standard discovery requests years ago, this challenge to the Intoxilyzer would have long since been finished. Instead, the State fought us tooth and nail the entire way: fellow members of the trial team have been to the Supreme Court not once, but twice, demanding access to the software that controls the Intoxilyzer. Our firm spent countless hours litigating the same issue in Federal Court, doing everything we could to ensure that we received actual access to the source code, rather than the sham settlement that was originally reached between the State and CMI.

Once the groundwork had been laid, we pulled together a truly impressive coalition of defense attorneys to help foot the enormous costs that go into a detailed review of an embedded system like the Intoxiliyzer. And now, finally, after years of preparation and litigation, the evidence we’ve been demanding for years has been presented in open court, and we’ve reached the calm before the storm.      

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Today, the members of the trial team for the Source Code Coalition finished presenting our evidence. At stake are over 4,000 DWI criminal and civil cases that rely almost entirely on test results produced by the Intoxilyzer 5000's “source code.”

Once we finished presenting our evidence, the State made a motion for a directed verdict - in effect, claiming that the defense failed to demonstrate that the Intoxilyzer 5000 is an error prone, faulty machine. Judge Abrams quickly ruled in our favor, and we have indeed made a prima facie case that the Intoxilyzer does not produce valid and reliable results in all cases.         

This ruling is a great victory for both the Coalition and for all Minnesota drivers, and underscores the fact that this machine is indeed flawed. We’ve said for years that there are problems with this machine, and have repeatedly asked for nothing more than an opportunity to prove our case. Now we’ve done our part, and proved our case- and the State has no choice but to try and rebut the evidence that we’ve presented, because otherwise the Intoxilyzer test results would be deemed inadmissible in court. The State is going to start attempting to meet that burden this afternoon.

We expect the State to spend most of next week trying to overcome the evidence we’ve presented. While the judge hasn’t issued a final ruling in this case (and likely won’t do so for some time) today’s ruling in our favor is a promising sign of things to come.

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As members of the trial team and lead counsel for the consolidated challenge against the Intoxilyzer 5000, we’ve spent the last few months working overtime in preparation for the hearing that started on December 8, 2010. We’ve already presented three days of expert testimony, and aren’t even halfway done - but we’ve already presented substantial evidence that calls into question the “scientific results” that come out of this machine.

1)    The Intoxilyzer does not, to a reasonable degree of scientific certainty,   accurately report alcohol concentrations. For example, an Intoxilyzer  test result of .08 does not actually mean, and cannot be used to show, an alcohol concentration of .08.

2)    Numerous scientific safeguards that are supposed to ensure that Intoxilyzer results are valid and reliable simply don’t work. This includes some shocking revelations, including the fact that the Intoxilyzer just flat out cannot properly measure breath volume, despite claims to the contrary. The Intoxilyzer also reports the presence of alcohol when a totally “clean” air sample is provided. Basic safeguards, like the ability to detect interferents (non-alcohol substances that show up as alcohol), the ability to detect radio frequency interference, and various “self-tests” all fail to work as advertised.

3)    Essential components of the Intoxilyzer can be disabled without sending up any red flags. This includes heating elements and interferent detectors that are essential to providing consistent, reliable results.

4)    The “slope detector” is shaping up to be about as faulty as we expected. Many people are being charged with “test refusal” because source code errors are reporting otherwise valid samples as “deficient.”

Numerous other flaws have been exposed, all leading towards the final question: can we trust this machine to ensure that our roads remain safe, or is it little more than a “random number generator” that is sending innocent people to jail?

This week we expect to get even more information as we examine several experts from the Minnesota Bureau of Criminal Apprehension, as well as experts in breath testing from other States. Stay tuned!

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After years of carefully crafted discovery requests, and a lengthy lawsuit in Federal Court, the source code to the Intoxilyzer 5000EN was finally released to the experts hired by the Source Code Coalition.

The Supreme Court ordered a state-wide consolidated hearing be held on the validity and reliability of the Intoxilyzer. That hearing is scheduled for December 8, 2010 before the Honorable Judge Abrams, district court judge for the First Judicial District.

As a member of the trial team and as lead counsel for this complex and controversial hearing, we’ve been working overtime to prepare all of our experts and exhibits for what is bound to be an eye-opening hearing. It is expected that Judge Abrams will issue a final decision on this matter in early 2011. It is also likely that his decision will be appealed by at least one of the parties to the consolidated case, creating considerable uncertainty in what the future status of the Intoxilyzer will be.

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As we’ve reported, the Intoxilyzer 5000 breath test machine is being taken out of service in the next few months.  The breath test machine is responsible for taking hundreds of thousands of licenses and convicting almost as many of DWI. 

Joel Watne, 72, a lawyer with the Office of the Minnesota Attorney General, is also being phased out.  This week, Joel retired after 37 years as a lawyer.  While Joel may not be personally responsible for as many revocations and convictions, he has an impressive resume. 

Joel wrote and lobbied for many of Minnesota’s DWI laws. He has logged over 11,700 court appearances, handled over 300 appeals in Minnesota Supreme Court and Court of Appeals and some in federal court, including the 8th Circuit Court of Appeals and U.S. Supreme Court according to his Linked-In page.

Last week I appeared in a civil implied consent hearing in Dakota County.  Joel was my opponent. That battle was Joel’s last court appearance.   

As a criminal defense attorney, I won’t miss Joel.  He was always a pain the neck and always gave it his best.  Because Joel handled primarily civil implied consent cases, he was not subject to the higher ethical standards of criminal prosecutors– his duty was not to “do justice” but, like a defense attorney, to zealously pursue his case and do whatever it took to win.  He was passionate about keeping our roads safe and used every weapon in his arsenal to win – whether I thought it was fair or not.

He was passionate about his work and always brought his A-game.  He was a resource for not only the other lawyers in the Attorney General’s office, but for peace officers and prosecutors around the state.  As a husband and father of two young children, my family is safer because of his efforts.  As a tax payer, I recognize the state got its money’s worth out of Joel and thank him for his 37 years of service.

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In this final chapter in our three part series regarding bail, we’re going to debunk the common myth that Minnesota judges are required by law to set bail in DWI cases. We’ve already explained what you need to consider when you’re ordered to post bail, and analyzed why Minnesota’s bail statute is largely unconstitutional.

Unfortunately, few judges are willing to put their own necks on the line and completely ignore Minnesota’s DWI bail laws. However, many judges will listen to (and agree with) the argument that the bail statute itself does not even apply to many DWI defendants. I’ve used this argument many times in a situation where the court was going to charge my client $12,000 bail, and instead chose to release him or her without requiring any bail.

The DWI maximum bail statute defines when maximum bail is required. It supposedly requires maximum bail ($12,000) in all cases where a defendant is charged with second degree DWI (a DWI with two aggravating factors), whenever a test result reports an alcohol concentration at or above .20, or whenever someone under the age of 16 is in the vehicle. Other situations are also covered, such as when someone under the age of 19 is charged with third degree DWI, or when someone was caught driving with a canceled driver’s license.

The statute supposedly “requires” that anyone charged with a DWI under these situations be arrested immediately, and held until their first court appearance. This is the key - the requirement that these offenders be both arrested and held in custody. Put another way, if the officer does not have an offender held in custody until their first court appearance, the maximum bail statute, by its own terms, does not apply.

This situation comes into play all the time, especially in blood or urine test cases. These tests typically take at least a month to complete, so there is rarely a basis to hold someone in custody until their first court appearance. What happens instead is that the person is notified, a month or more after their arrest, that their test result came back above the legal limit. Then, overzealous prosecutors issue an arrest warrant, and expect people to post $12,000 bail long after they had already been released from custody!

It sounds absurd, but it happens, it happens regularly, and it happens in situations where defense attorneys should know better. Time and time again potential clients call our office, upset that they were forced to post thousands of dollars in bail after they had already been released from custody. It’s frustrating, because if we had been involved earlier, we likely could have prevented any bail from being ordered at all. All it takes is a careful argument to the judge, explaining why the maximum bail statute doesn’t cover situations where someone has already been released from custody!

If you’ve been arrested for DWI, and are awaiting the results of a blood or urine test, you need an attorney before, not after, the test results come back. Waiting will often be an expensive mistake - and a mistake that, with a little legal experience, can be completely avoided.

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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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