We blogged last week regarding yet another problem that affects first void urine alcohol tests (F-VUAT) that are tested by the Minnesota Bureau of Criminal Apprehension. In one case, we re-tested a urine sample that was reported to have an alcohol concentration of .09. Our retest, performed at an accredited laboratory, reported a result of .05 – significantly lower than .09, and well below the legal limit of .08.

Via sworn testimony at an Implied Consent hearing, we were told the following two tidbits:

1)    The open admission that BCA forensic scientists routinely botch the handling of crucial evidence in about half of all DWI urine cases, resulting in destruction of the evidence; and,

2)      The revelation that this mishandling of evidence, a problem that was announced to have been “solved” in a 2003 study by the BCA toxicology supervisor, has actually continued non-stop since that day, and that the BCA does not think that it is necessary to inform anyone about it.

So why the discrepancy?

Although the BCA forensic scientist who analyzed the sample was unable to account for the differences, the Commissioner called a second BCA employee to justify the discrepancy. His explanation was alarming.

He claimed that after testing our client’s sample, the BCA froze what was left to “preserve” it. He then speculated that the freezing (instead of refrigerating) the sample caused it to lose alcohol. This, despite the fact that the 2003 peer-reviewed study addressed this issue and determined that the use of a different type of storage container would correct any problems like this.

Strangely, while acknowledging the BCA continues to use the same containers that were previously found to correctly preserve these urine samples, he then testified that the conclusions of the previous 2003 peer-reviewed study are wrong – despite the fact that 1) he was an employee of the BCA at the time the study was published, 2) neither he nor the BCA has taken steps to correct the published article, and 3) he is of the personal opinion that the BCA has no duty to actually preserve these samples for retesting, because his lab results are good enough!

Not only does he disagree with the published 2003 peer- reviewed study, he openly speculated that shoddy work forensic scientists at the BCA are responsible for this discrepancy. Specifically, his “conjecture” is that the forensic scientist who analyzed our client’s urine test failed to properly seal the urine container - which then purportedly allowed the alcohol to evaporate. He also believes that an analyst’s failure to properly secure the lid on the urine samples occurs in about ½ of all the urine test samples at the BCA lab! Under his version of the truth, literally thousands of samples are being destroyed (from an evidentiary standpoint) because analysts can’t be bothered to tighten the lids properly.

If this explanation holds up in court, the BCA has stumbled upon a dramatic new way to forever prevent any other lab from reviewing their results. If a retested sample produces the same results, they can claim that this just supports the fact that they did everything right the first time. If a retested sample produces different results, they can keep on saying that they did everything right the first time, and blame that tricky sample for changing on them!

Last week we rhetorically asked when would a courageous BCA employee come forward and blow the whistle on BCA practices. We did not think it would happen like this! Ironically, it is the “whistleblower’s” attempt to explain the discrepancy between two test results that reveals not only widespread incompetence and fraud by omission, but as a panel of judges in the State of Washington put it, it may also reveal a culture of “‘culture of compromise’ with so many “ethical lapses, systemic inaccuracy, negligence and violations of scientific principles.”

Are we just beginning to scratch the surface in Minnesota? 

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A senior forensic scientist at Minnesota’s Bureau of Criminal Apprehension (BCA) has come forward with shocking revelations. According to the sworn testimony of the 25-year veteran:

1)      BCA forensic scientists routinely botch the handling of crucial evidence in about half of all DWI urine cases, resulting in destruction of the evidence; and,

2)      A 2003 BCA study published in a prestigious publication includes misleading results and inaccurate conclusions; the BCA has refused to publicly correct its findings and conclusions with the scientific community.

Unfortunately, these revelations come not from a courageous government servant blowing the whistle on shoddy forensic work and unethical conduct. Instead, it’s just another attempt by the Minnesota BCA to justify - at all costs – a truly shocking lack of scientific accountability.

The Rest of the Story…

The two revelations listed above came to light during a civil implied consent hearing. The State revoked our client’s driver’s license when the BCA reported a urine test result as .09. We had the same sample analyzed by an independent lab, which reported a .05! (See more on independent analysis of urine samples). Now, before you jump to any conclusions, you need to know that two separate BCA witnesses and our privately retained forensic scientist all agreed that the independent lab’s test result was valid, reliable and accurate.

The parties presented two equally valid samples with widely disparate results. One result supported the license revocation (being slightly above a .08) while the other (well below .08) did not.

This situation underscores just one of the many, many problems that surround the use of first void urine alcohol tests (F-VUAT) for DWI purposes. Not only can two separate urine samples, taken minutes apart, produce dramatically different results, but now we see that the same sample, tested on different days, can also produce shockingly inconsistent results.

How did we get to this point? Did the BCA, faced with such baffling evidence, agree that their procedures were faulty? Did the State admit error, and tell our client she could have her license back? Sadly, when you live and drive in one of the only states in the world who still use F-VUAT, you’re not dealing with a state that is likely to admit that it made a mistake.

Instead, what was revealed was the startling revelations revealed above. Next week, we’ll relay to you exactly what was said, and why it’s so troubling.

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There are two types of punishment the state can impose on a driver who allegedly operated a motor vehicle while impaired by alcohol or a controlled substance – although not all controlled substances are viewed equally. In Minnesota, the state cannot revoke your license to drive (one type of punishment) based solely on a positive blood or urine test for marijuana under Minnesota’s Implied Consent laws. However, if a prosecutor charges you with the crime of driving while impaired (the second type of punishment) you will lose your license if convicted.

Minnesota has two methods of taking your license in this situation: through the Minnesota Implied Consent Act (civil driver’s license revocation) and as a direct consequence if you are convicted of a crime. 

Civil Driver’s License Revocation

Minnesota’s Implied Consent Act permits the state to revoke a driver’s license to drive when a driver’s alcohol concentration is .08 or more or when a blood or urine test detects any amount of most drugs or their metabolites, including prescription medications. As we discussed recently, the state may take the license even before the driver goes to court under the Implied Consent Act.

However, Minnesota treats marijuana differently from other drugs and alcohol. It cannot take away a person’s license to drive under this law when blood or urine tests detect the presence of marijuana under any circumstances.

Criminal DWI Laws

So, in Minnesota, it is not, under the Implied Consent Laws, automatically a crime to drive a vehicle with marijuana in your blood or urine. Unlike other drugs, Minnesota does not make it a crime to have marijuana in a driver’s system – meaning that there is no “per se” limit for marijuana. While the legal driving limit for alcohol is .08, and any amount of methamphetamine will provide a basis to charge someone with DWI, there is no minimum (or even a maximum) amount of marijuana that you can have in your system before it is illegal to drive.

This isn't to say you can feel free to toke up prior to driving, because it is still a crime to drive while "under the influence " of marijuana. If a person is actually impaired by the use of marijuana at the time they are driving, they can and probably will be charged with DWI.  However, unless you plead guilty to such a charge, it is extremely difficult for a prosecutor in most cases to meet the burden of proving guilt beyond a reasonable doubt. If the matter goes to a jury, a good defense attorney can often suppress the results of any blood or urine tests, as the scientific community is in agreement that evidence of prior marijuana consumption simply does not have any bearing on whether or not  someone was actually impaired by marijuana. And without those test results, the prosecutor's case is usually pretty weak. While it is never a good idea to drive a vehicle while tired, texting, after consuming alcohol, or with any sort of "hard" narcotic in your system, Minnesota has crafted its laws in such a way so as to make it easier to avoid a license revocation for those drivers who may have recreationally used marijuana in the past (which, let me make clear, is a crime in Minnesota) but who were not impaired at the time they were actually driving.

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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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The Minnesota Supreme Court has set State v. Tanksley for oral argument on October 5, 2011 at William Mitchell College of Law. 

The issue in the case is whether the trial court erred by denying the driver the right to have a so-called Frye-Mack hearing, to determine whether the scientific community recognizes urine alcohol testing as generally reliable in DWI cases.

Minnesota appears to be the only jurisdiction in the country that routinely uses random sample first void urine testing to determine a specific level of alcohol concentration. Government agencies such as the National Highway Traffic Safety Administration and quasi-government agencies such as National Safety Council, Subcommittee on Alcohol and Other Drugs do not recommend urine testing for such purposes.

Our firm has pioneered this challenge in DWI cases and will be following this case closely. In fact, several of our clients’ cases have been accepted by the Minnesota Supreme Court for review, but have been stayed pending the outcome of Tanksley.  

You can bet we’ll be following this closely and will post an update immediately after the arguments early next month. 

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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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Minnesota analyzes drivers’ blood, breath and urine to determine a specific level of alcohol concentration. The manner in which the state reports the results leads us to believe they are very certain that the results are 100% accurate.

This is definitely not the case and is inconsistent with well-established scientific standards.

As with all scientific testing, laboratory analyses conducted by forensic scientists are subject to measurement error. Consider the following situation, based on an example taken from 2009 National Academy of Science Report to Congress:

It’s a DWI case in which the Minnesota Bureau of Criminal Apprehension tests a driver’s blood using “state of the art” instruments. The lab analyzes the blood three times. The instruments’ measurements are 0.08 percent, 0.09 percent, and 0.10 percent.

Minnesota takes the lower of the three measurements, and reports that result – 0.08 – as a certainty. They even try to claim that by taking the lowest number, they’re somehow “helping” the test subject by giving them the benefit of the doubt. This is not only incredibly misleading, but in examples like this, downright wrong. It’s the type of sleight of hand that looks good, but is flat out unscientific. Scientifically speaking, the “conclusion” that should be reached in the above example is that the test result is no higher than .07! (0.09 +- .02 for those of you with statistics training, and further explained below).

As the NAS Report says, the variability in the three measurements may arise from the internal components of the instrument, the different times and ways in which the measurements were taken, or a variety of other factors. These measured results must be reported, along with a confidence interval that has a high probability of containing the true blood-alcohol level (e.g., the mean plus or minus two standard deviations). For this illustration, the average is 0.09 percent and the standard deviation is 0.01 percent; therefore, a two-standard-deviation confidence interval (0.07 percent, 0.11 percent) has a high probability of containing the person’s true blood-alcohol level.

See, 2009 report to Congress of a Committee of the National Academy of Sciences, National Research Council Committee on Identifying the Needs of the Forensic Science Community, Strengthening Forensic Science in the Unites States: A Path Forward, (2009).

In criminal cases the government has the burden to prove beyond a reasonable doubt the driver’s alcohol concentration is over a specific alcohol concentration. When the Intoxilyzer reports an alcohol concentration of .08, juries are left to believe that result is a certainty. It is not.

This becomes even more significant when test results are near .04, .08, .16, .20. The government lab report misleads judges, juries and the Minnesota Department of Public Safety. As a result, drivers are erroneously convicted of drunk driving and may go to jail. They may lose their license to drive and face penalties which include ignition interlock, or vehicle forfeiture and plate impoundment. 

Next: Are there established confidence intervals for Minnesota DWI tests? What are they? How can I use them in my case?

 

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

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

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

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

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

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

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

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

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

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

In its order, the Court of Appeals said:

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

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

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

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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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We were probably the first attorneys in Minnesota to start bringing Frye-Mack challenges against the practice of using urine tests to prosecute drivers for DWI.  

Now, one of the first cases where we raised this argument has finally made its way to the Minnesota Supreme Court, which just accepted review of our case, State v. Boeder.

This is part of a clear trend - the Minnesota Supreme Court seems ready and willing to address head-on the basic fact that scientists worldwide reject urine testing for DWI cases. Stay tuned . . . things are about to get even more interesting.

 

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Many believed challenges to DWI alcohol urine testing were finished last December after the Minnesota Court of Appeals issued a series of decisions. Recent orders issued by the Minnesota Supreme Court, however, provide hope for those accused of DWI based on a urine test.

In State v. Edstrom – a case with a shaky and dubious procedural posture – the Minnesota Court of Appeals affirmed a lower court’s finding that DWI urine alcohol testing is generally accepted by the scientific community. 

The following week the court of appeals held in State v. Tanksley that the trial court erred by denying a Frye hearing in a urine test case, but – based on Edstrom – the court held the error harmless. The court also upheld the district court’s suppression of expert testimony challenging the validity, reliability and accuracy of the urine test result. 

Shortly thereafter the court of appeals again affirmed a trial court’s decision prohibiting a driver from offering expert evidence on the reliability of urine testing to measure alcohol concentration in State v. Dixon. The court justified denying the driver his fundamental right to present a complete defense because, “Minnesota recognizes urine testing as a reliable method of measuring alcohol concentration.” 

Minnesota Supreme Court Grants Review.

Last month the Minnesota Supreme Court accepted review of State v. Tanksley and State v. Dixon (the parties in Edstrom did not seek review; it appears that had they done so, it likely would have been granted).

In its order granting review of Dixon, the Supreme Court provided insight on at least one of the issues that it felt required review:

IT IS HEREBY ORDERED that the petition of Matt Dixon, Jr., for further review be, and the same is, granted on the issue concerning exclusion of defense evidence challenging the reliability of urine testing, and all proceedings are stayed pending final disposition in State v. Tanksley, No. A10-392. The petition is denied on all remaining issues.

Judges across the state have denied drivers the right to tell the whole story to a jury: that urine testing is junk science. With the Minnesota Supreme Court reviewing the issue on appeal, we hope that will change.

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We blogged previously about the new “cutting edge” type of urine test - the EtG urine test. This new type of testing is primarily used for probation violations (where the person is expected to entirely abstain from alcohol) whereas the more traditional form of urine test is used for both violating probationers and prosecuting drivers. One thing both types of urine test have in common is that government scientists don’t approve of their use in criminal cases.

DWI urine tests are not generally accepted by the scientific community, but the Minnesota BCA continues to use them. Now, the US health department's Substance Abuse and Mental Health Services Administration (SAMHSA) has issued its second report in five years calling the EtG test "inappropriate" and "scientifically unsupportable,” yet there is no doubt that Minnesota will continue to use this test to incarcerate its citizens.

If you are on probation, or have a “B-card” restriction on your driver’s license, be warned that the use of hand sanitizers or the consumption of sauerkraut may ultimately provide the State with enough evidence to put you in jail.

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Chuck Ramsay is speaking this Friday, February 18, 2011 at the Hennepin County Bar Association. 

See Chuck’s cutting edge presentation, “Minnesota DWI Urine Testing: A Fluid Body of Law.”

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We’ve previously blogged about the serious problems that arise when the government tries to enforce its DWI laws with urine testing. Despite these known problems, Minnesota continues to use discredited urine tests. Now, they are starting to take things one step further - using a new, error-prone method of analyzing urine samples to “prove” that someone recently consumed alcohol.

The science behind this post is a little complicated, but the results are easy to explain: scientists are claiming that they can test a urine sample for the presence of ethyl glucuronide (EtG), which is basically a “byproduct” of alcohol consumption - a byproduct that can be detected days after someone consumed any alcohol.

Probation officers and prosecutors alike love this new type of urine test- most people on probation are specifically ordered to abstain from alcohol, and any consumed alcohol has usually left the system before someone can be brought in for a random urinalysis test. With these new tests for EtG, the government can find out if someone drank alcohol three days ago, instead of only three hours ago.

Sounds fair, right? WRONG. We’ve noticed more and more EtG tests being used and spent a great deal of time studying the science behind the testing. We have discovered just how unreliable these tests are. If someone “fails” a test for EtG, it may mean that they consumed alcohol sometime in the previous few days . . . but it can also mean that they used a common hand-sanitizer sometime in the previous few days. Non-alcoholic beer and mouthwash can cause false positive results. So can consuming bananas. Even sauerkraut can generate EtG in a urine sample.

The message is clear: if you’re prohibited from consuming alcohol as a condition of probation, be sure to avoid sauerkraut and bananas. The State has a new test they may ask you to perform, and your craving for fruit and cabbage may end up putting you behind bars.

While a negative Etg test is conclusive proof that a person did not recently consume alcohol, it does not follow that a positive is conclusive proof that a person did recently consume alcohol.

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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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The Minnesota Court of Appeals issued a decision this week dealing with urine testing, an issue we’ve blogged about extensively. In State v. Edstrom, the Court said (in dicta) that first void urine testing is generally accepted by forensic toxicologists as a valid measurement for per se intoxication.

Even a casual review of the case, however, demonstrates that this decision carries no real weight. The issues raised in this appeal did not involve “general acceptance” of the urine test (known as the Frye-Mack test); the issue was whether the lower court improperly suppressed the urine test as being “unduly prejudicial” (a standard rule of evidence that is not specific to scientific tests, like Frey-Mack).

Despite the fact that the Frye issue wasn’t even presented or briefed, the court took a walk in the woods and addressed whether evaluation of a urine sample with gas chromatography is generally accepted by the scientific community. Here’s the thing - it is. In fact, in the dozens of cases we have pending around the state we waived the issue of whether the evaluation is generally accepted. Instead, we require the state to meet its burden to demonstrate that the administration of the test is generally accepted.

Because the issue wasn’t properly raised in the lower court, the Edstrom court completely failed to understand the actual issue. The issue, of course, is that every forensic test has two separate but equal components - the collection of the forensic sample, and the subsequent analysis of that forensic sample (as the saying goes, “garbage in = garbage out”). While the Edstrom Court went out of its way to try and rule on an issue that it was not asked to address, it did not even address the full issue in this decision.

It is Minnesota’s method of collecting urine samples that render the results unscientific, not the subsequent analysis. Imagine if every DWI blood draw performed in Minnesota was done after the nurse had used an alcohol swab on the donor’s arm. Would you trust the analysis of any of those samples? Of course not - it’d be downright stupid to do so (especially when its almost as easy to use a non-alcohol swab instead). What’s outrageous is that first void urine testing is a far worse method of sample collection than our alcohol swab example. And that’s not my opinion - that’s the opinion of almost every single peer-reviewed article in existence, alongside the institutional opinions of SOFT, the NRC, NHTSA, and the Borkenstein Institute.

The entire basis for the Court’s determination that first-void urine testing passes the Frye test was one incredibly illogical sentence: “And there is no evidence to suggest that gas headspace chromatography is any less accepted by the scientific community when it is used on a first-void, as opposed to a later-void, urine sample.” Edstrom, page 10.

When we hold a Frye-Mack hearing, we present volumes of evidence that directly contract the above cited one-liner. In fact, no fewer than four major, renowned scientific bodies have made it clear that first void urine testing should not be used to determine a per se level of impairment:

All in all, the Edstrom decision stands for nothing unique, and the holding simply places a rubber stamp on something we already agree about - gas headspace chromatography is a great way to analyze fluid samples. We’ve held numerous Frye hearings where we have made it crystal clear that we are challenging the collection, not the analysis, of the urine samples in question, and despite the holding in Edstrom,we plan on holding even more hearings in the future. We’ll continue to do everything within our power to demonstrate why every forensic scientist (except those employed by the State of Minnesota) reject urine testing.

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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.

Continue Reading...

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Earlier this year our series “Freedom Through Independence” told of the benefits of re-testing the state’s alcohol samples in DWI cases.

Part 1: Crises in Our Nation’s Forensic Science System

Part 2: Erroneous DWI Blood Test Results

Part 3: Erroneous DWI Urine Test Results

Part 4: Erroneous DWI Intoxilyzer 5000 Breath Test Results

Our “Freedom Through Independence” series chronicled our ability to use retested samples to win DWI cases for our clients. Since then, the government has repeatedly thrown in the towel and dismissed our DWI cases whenever our retest has contradicted the state’s alcohol test result. After publishing our blog series, more and more lawyers followed our advice and began retesting DWI blood and urine samples. 

As a result, the state faced many more cases where the state’s DWI test results were contested, forcing the government to change its tactics. Now, the government is actually trying to fight back in cases where our independent retest refutes the state’s own test. 

The Judge Rules: Two Different Test Results = State Loss

The state is now finding out the hard way that if they try to fight against retested samples, the end result is no different than if it had just dismissed its case from the outset. Last week a judge rendered the first written decision in years on this issue, and clearly held that if a retested sample produces different results than the state’s test, the state is going to lose.

In that case, the driver submitted to a urine sample after being arrested for DWI. The officer collected the sample, and submitted it to the Minnesota Bureau of Criminal Apprehension ("BCA") for analysis. The BCA’s analysis resulted in an alcohol concentration of 0.08. 

Several months after the BCA performed its analysis, the driver’s frozen sample was independently analyzed by Regions Hospital. Regions Hospital’s analysis resulted in an alcohol concentration of .06. The difference between .08 and .06 is huge, for two reasons. First, a difference of .02 between the samples proves that urine testing fails one of the main tenets of the scientific method: the ability to consistently reproduce statistically reliable results. Second, one test is above the legal limit, while the other is clearly below that limit.

A nervous BCA employee testified, offering several possible explanations for the dramatically different test results:

1)            A difference in testing methods between the BCA and Regions Hospital (The BCA does not contest Regions Hospital’s independent lab results, and in fact has approved its methods and procedures for testing urine for alcohol concentration.) 

2)            Evidence was destroyed when the BCA froze the urine sample after testing; and/or,

3)            An improper seal on the sample container permitted ethanol to escape the container.

All these “explanations” make the BCA look bad, but the driver’s attorney noted a fourth, even more troubling possibility; that the analysis performed by the BCA was inaccurate and the analysis performed by Regions Hospital was accurate.

The judge wrote in his order:

In this case the Court has been presented with two equally valid samples with disparate results. One result supports the revocation of the Petitioner's license while the other does not.

…

The Commissioner, however, bears the burden of proving it is more likely than not that the Petitioner was operating a motor vehicle with an alcohol concentration of 0.08 or more. The evidence presented is not sufficient to overcome this burden. It is equally possible the Petitioner had an alcohol concentration of 0.08 or 0.06767. The Commissioner has therefore failed to prove the requisite alcohol concentration justifying revocation of the Petitioner's license.

The judge correctly ordered the government reinstate the driver’s license and remove any reference to the license revocation from his driving record. 

More Questions:

This case raises as many questions as it answers. Had this been a criminal case, what would a jury have decided? We think that a court should not even permit the state to present this evidence to a jury, since no reasonable juror could find the state could meet its burden of proof beyond a reasonable doubt.

This raises other questions as well, such as “how long will the BCA continue to freeze DWI test samples after testing?” “What are the differences between the BCA and Regions’ testing methods?” and “Whose testing method is more accurate?”

And of course, all of these questions lead directly to the one question I’ve been asking for years. It’s a simple question, and yet it has gone unanswered for far too long.  

Why does our state remain as one of the only places in the world that still use urine testing?

Congratulations to defense attorney, Ed Cohen, for his work against the Office of the Attorney General in the implied consent case.

 

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I’ve blogged about the unscientific nature of DWI urine testing for years and years. Being at the forefront of defense challenges to urine testing has brought numerous successes for our clients, but we’ve never had a Minnesota Appellate court rule with finality that urine tests are inadmissible. Change is in the air, however, and the ruling from the Minnesota Supreme Court yesterday will likely change our position for the better.

DWI Urine Testing: Rejected by Scientists

The primary issue with urine tests is that the scientific community simply does not accept urine testing in DWI cases as a valid means of determining alcohol concentration. Most states don’t use it at all. Fewer than a dozen periodically use the method, but don’t test the “first void.” It appears Minnesota stands alone as the only state to utilize solely “first void” testing.

A brief refresher for those new to our blog: Alcohol collects in the bladder and does not “burn off” like alcohol in the blood or breath. Instead, it remains in the bladder until voided. Without voiding the bladder and waiting 20-30 minutes before collecting a “second void,” there is no relationship between the amount of alcohol in the urine and the amount of alcohol in the blood. In fact, Minnesota BCA scientists concede that under “first void” testing, a person may have no alcohol in the blood, but be over the legal limit by urine.

Frye-Mack Standard

Under Minnesota law, before a scientific method or test can be admitted as evidence, a judge must find it to be “generally accepted by the relevant scientific community.” The Minnesota Supreme Court held in 2002 (State v. Roman Nose) that trial courts must grant motions for a Frye hearing unless and until the Supreme Court upholds a lower court finding of general acceptance for the specific scientific testing or method (for those unfamiliar with the Frye-Mack standard, check out our previous post).

We continually present scholarly articles, learned treatises and expert opinion from forensic toxicologists proving that urine testing is not “generally accepted in the scientific community.” If the judge listens to the evidence, this can and will lead to suppression of the test result. However, because the State has no real evidence supporting the use of urine tests, they use a different argument altogether - they try to claim that the Frye-Mack “general acceptance” test doesn’t even apply to urine tests, so there is no need to even prove general acceptance. Since urine testing for alcohol concentration was implemented nearly a century ago, many courts have rejected our motion for a Frye hearing simply because they believed that urine testing is not a “novel” test, and doesn’t need to be scrutinized. That’s about to change . . .

Minnesota Supreme Court Clarifies When Courts are Required to hold Frye Hearings

The Minnesota Supreme Court issued an opinion yesterday that rejected the State’s “it’s not novel science if it’s old science” argument this week in State v. Hull.

In State v. Hull, the jury found Jeremy Hull guilty of murder. Before the trial, the defense challenged whether fingerprint evidence and handwriting analysis was admissible under the Frye “general acceptance” standard. The trial court refused to hold a Frye-Mack hearing on the scientific validity of the fingerprint evidence, concluding (without reviewing any evidence) that “fingerprints have been generally accepted as scientifically reliable for a long time.” Similarly, it denied the motion on the handwriting analysis by summarily finding, it too, is generally accepted, again without a hearing.

Analyzing whether the trial court correctly rejected a defense motion for a Frye hearing of fingerprint evidence, Justice Paul Anderson wrote,

“[L]engthy use of a method by law enforcement, and even lengthy unquestioning acceptance by courts, does not [by itself] exempt expert evidence from scrutiny under the first prong of Frye-Mack….”

Justice Anderson also cited with approval a report issued by the National Research Counsel of the National Academies (NRC), which stated, “In a number of forensic science disciplines, forensic science professionals have yet to establish either the validity of their approach or the accuracy of their conclusions, and the courts have been utterly ineffective in addressing this problem.”                          

Justice Meyer filed a concurring opinion, “because [precisely defining the Frye-Mack standard] has wide-ranging implications for future cases, we do a disservice to district courts and the administration of criminal justice in this state by declining to decide the issue on its merits” (she said this because the majority refused to actually state a rule, holding that the evidence against Hull was so overwhelming so as to make the issue irrelevant).

Justice Meyer went on to state, “The NRC Report states in no uncertain terms that the state and federal courts’ longstanding acceptance of traditional forensic science expert opinions is simply not supported by good science.”

She concluded by noting that, “in order to present expert conclusions based on these methods to a jury, the proponent of the evidence must first meet its burden under the first prong of Frye-Mack to show that its forensic evidence methods produce accurate and reliable results. The district court erred in this case when it relieved the State of that burden.” (Emphasis added).

“But We’ve Always Done It That Way” Falls Short

The Court’s message is crystal clear: The State can no longer rely on the “long-standing use” of a scientific method to prevent a Frye hearing. Longevity alone is insufficient; the State can’t be permitted to “grandfather” junk science past the rigorous safeguards of the Frye-Mack test. Instead, the Supreme Court has again made it clear that the government must prove in a Frye hearing that a test if generally accepted by the relevant scientific community.

So how does this affect urine testing? Many courts have succumbed to prosecutors’ argument, “But we’ve always done it that way” in denying motions for a Frye hearing. Thanks to the Hull case, I’m hoping this will also bring an end to another government adage, “Good enough for government work” which has allowed urine testing to be used against innocent citizens for years.

 

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Urine testing has no place in determining whether or not a state’s DWI laws have been violated. Despite near universal rejection of urine specimens for DWI enforcement, the folks at the Minnesota Bureau of Criminal Apprehension (BCA) stand nearly alone in continuing to use this junk science to put people behind bars.

Our firm has been at the forefront of the fight against urine tests, demonstrating again and again exactly why urine testing has no place when it comes to enforcing DWI laws. In every case we present decades of scholarly articles and learned treatises rejecting urine testing. 

Because of our success, the BCA has come up with some new “evidence” in an effort to build support for DWI urine testing in Minnesota. Last week the state presented a single piece of paper drafted by one BCA scientist that we’ve lovingly dubbed the “Urge to Purge” memorandum. This memorandum attempts to overcome the obvious fact that when you are given a urine test, the sample demonstrates a “pooled” or average alcohol concentration, and not your actual alcohol concentration from the time you were driving. Basically, a urine test can report – at best – an average alcohol concentration since the subject had last voided his or her bladder.

The “Urge to Purge” memorandum tries to imply that the diuretic effect of alcohol (the well-known fact that drinking makes you have to pee) means that anyone who is drinking is also peeing non-stop, and so any urine sample will be “accurate enough.” What the data doesn’t take into account is simple science; specifically, the well-documented fact that the alcohol only has a diuretic effect during the absorptive phase of alcohol (which stops about an hour after drinking) and not during the post-adsorptive phase (after the alcohol has been fully absorbed).

It appears the state seeks to use their new “science” to refute the well-founded legal position that the police need a search warrant to force a urine test. Because alcohol doesn’t dissipate in the bladder, there is no immediate need to obtain a sample, as in the case of breath tests. The state’s “urge to purge” memorandum implies that a person will wet their pants before a cop can get a warrant. There is no science to back up the state’s claim.

To make a long-story short, the “Urge to Purge” memorandum that the BCA is now touting is about as relevant to urine testing as a chart explaining how blondes have more fun. It just doesn’t matter.

Hopefully - someday - the BCA will learn not to support junk science with more junk science. Until that day comes, we’ll be here, continuing to attack this flawed test in the courtroom.

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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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The common perception among the public is that “you can’t beat a DWI.” We’ve proved that bit of conventional wisdom as dead wrong, time and time again. However, it’s just as frustrating to hear someone claim that they were charged with “test refusal” and that it’s all but impossible to win a test refusal case. The average attorney might not be able to win a test refusal case, but we’re not average attorneys.

Minnesota is one of only a few states that actually make test refusal a crime. So how do you win a test refusal case? We win by knowing the law, knowing your rights and through experience. We recently convinced an Aitkin county judge to dismiss the test refusal charges against our client, and we did it by following these three simple steps.

Know the Law: Minnesota’s Implied Consent Law and criminal test refusal law are confusing and counterintuitive to all but the most experienced attorneys. The average person would be surprised at how many defenses are available to a person who just said “no” when the State attempted to coerce them into submitting to a chemical test.

For example, an officer needs probable cause to arrest you before they can even properly demand that you submit to testing - you can’t “refuse” a test that the police had no right to request. And while the police won’t tell you this, you actually have the RIGHT to refuse a urine or blood test - without consequences. If you refuse to submit to a blood test, the officer MUST offer you a urine test before you can be charged with refusal. In other words, unless you refuse both a urine and a blood test, you’re not guilty of test refusal.

Know your Rights: Everyone in Minnesota has the right to consult with an attorney before deciding whether or not to submit to a test. If your right to counsel is denied by the police, you can’t be found guilty of test refusal. You also have the right to “change your mind.” We’ve successfully defended clients in situations where the officer was too quick to claim that our client “refused,” when in reality our client was ready and willing to submit to testing, and was just nervous.

Rely on Experience: Experience and imagination can get test refusal cases thrown out of court as well. There are powerful arguments to be made that the refusal law violates the basic Constitutional right against self-incrimination, and that the statute itself is so vague and ambiguous (there is no actual, clear cut definition of “refusal” in the criminal context, and civil refusal is also loosely defined) so as to offend the Constitution. Likewise, the Implied Consent advisory that every Minnesota officer reads to every alleged drunk driver actually mis-informs those drivers about the consequences of refusal!

All of these legal strategies can and do result in the dismissal of criminal charges that resulted from an alleged “refusal to test.” If you’ve been charged with test refusal, don’t assume your case is hopeless. There are many defenses available to attorneys who know the law, know your rights, and have the experience to put that knowledge into practice.

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Many people believe that it is impossible to beat a drunk driving criminal charge or the DWI driver’s license case. The public believes this for a number of reasons. 

First, ill informed police and prosecutors believe DWI science is beyond reproach. 

Second, attorneys who are ill prepared to handle complex DWI cases will often merely exacerbate the problem. In most cases they take their client’s money, then hold their hand as they plead them guilty. 

Finally, the personal guilt that many people feel when charged with DUI crimes can be overwhelming, even if they thought that they were okay to get behind the wheel. They either hire a “dump truck lawyer” or plead guilty. 

We’ve busted these DWI myths time after time. It takes hard work, dedication, and a heartfelt desire to vigorously defend our clients, but in the end, the effort pays off. Here’s a sampling of some of our more recent successes, accumulated over the last few weeks. These victories demonstrate our commitment to our clients and our never-ending crusade to debunk the myth that DWI’s are “unbeatable.”

****

“B Card Violation” – Judge Order Driver’s License Reinstated

The Department of Public Safety cancelled my client’s license to drive. They claimed that he was driving in violation of his restricted driver’s license (which prohibited him from consuming ANY alcohol while behind the wheel).

Our client was involved in an accident in Hennepin County. After reporting to the scene, the police officer claimed to smell an order of alcohol, said our client failed the Horizontal Gaze Nystagmus test, and reported my client’s alcohol concentration was .06 on the preliminary breath test. 

Many attorneys believe such “B card” cases are impossible to win – after all, the government just has to prove that our client had a drink (not that he was impaired). Despite the common misconception that this type of case is unwinnable, we won! We challenged the DPS’ evidence in court and convinced the judge to overturn the license cancellation and reinstate my client’s driver’s license. 

****

DWI – Police Officer Coerced Driver’s “Consent” to take DWI alcohol test

In another case we challenged how the police officer obtained our client’s “consent” to a urine test. As we’ve blogged about before, we believe Minnesota’s implied consent law is unconstitutional as it unlawfully coerces all drivers to submit to DWI alcohol testing. 

The judge disagreed with our argument, and we lost at the district court level. That didn’t slow us down – we simply took the fight to the next level, and we appealed to the Minnesota Court of Appeals. After we submitted our appellate memorandum, we received a stunning letter from the government – they would agree to give our client his license back (a victory) if we withdrew the appeal.   Thus, solely on the strength of our written memorandum (before we even had to argue the case in front of the appellate court) we won the case!

****

Prostitution Sting: Soliciting Prostitution – Case Dismissed

Our firm practices only criminal defense and related civil cases, e.g., automobile forfeitures. Although the majority of our case load is Minnesota DWI cases, we regularly represent people charged in other types of cases as well. 

In Ramsey County, our client was arrested as a result of a St. Paul Police prostitution sting. He was charged with Loitering with Intent to Solicit Prostitution. After we obtained the police reports, video & audio recordings, and other documents, we started pushing the government hard – and were able to obtain a complete dismissal of the charges.

****

Fifth Degree Criminal Sexual Conduct – Case Dismissed

In another criminal case in Ramsey County, the government charged our client with Fifth Degree Criminal Sexual Conduct. We challenged the criminal charges and showed the prosecutor the weaknesses in its case. Again, they dismissed all of the criminal charges.

*****

DWI – Bad Seizure– Judge Orders License Reinstated after Urine Test

In a Scott County case, our client was charged with a DWI after he was arrested and given a urine test. The results were .11, well over the legal limit. 

Through experience and a desire to fully defend our client, we were able to get the state to dismiss the DWI charges against our client. Shortly thereafter, we convinced the judge in the implied consent case to rule in our favor as well, and restore our client’s driver’s license. 

The end result of this “unbeatable” DWI charge? All criminal charges were dismissed, and our client’s driving record doesn’t even reflect being pulled over for a DWI offense.

*****

DWI – Judge Grants Motion for Post-Conviction Hearing

A judge granted our motion for a post-conviction hearing in our efforts to get a new trial in a highly publicized case that we took to trial more than four years ago. In that case, our client was charged with “test refusal” on the Intoxilyzer 5000 because she was unable to provide an “adequate sample.” She begged for the chance to take another test, but wasn’t allowed to. Because we had not yet uncovered the critical flaw in the Intoxilyzer that causes such errors, the jury found our client guilty of test refusal.

Since that trial, our client’s conviction was overturned by the Minnesota Court of Appeals, and then reversed again by the Minnesota Supreme Court. 

Now, four years later, the trial court judge is granting us a new hearing based on the evidence we discovered concerning the faulty source code that runs Minnesota’s breath test machine, the Intoxilyzer 5000. The case is scheduled to be heard next month.

*****

DWI – Judge Grants Motion for Unprecedented Access to the Source Code

In a civil license revocation case involving the same driver as above, a judge granted our motion for the source code to the Intoxilyzer 5000. However, this case is a good example of what can happen if you reach for the stars; we not only asked for the source code, but also demanded key pieces of source code information well beyond that which was provided in the federal court settlement last year. After listening to our arguments, the court granted our motion, further opening the door to prevent our client from being wrongfully charged as a “test refusal.” 

****

DWI – .19 Blood Test Dismissed

DWI – .19 Breath Test Dismissed (Source Code)

DWI – .10 Breath Test Dismissed (Source Code)

****

“Can’t Win ‘em All . . . But Can’t Win Any If You Don’t Try”

A prosecutor in Ramsey County did manage to hand us our first DWI trial loss in years, in a case where the judge admitted into evidence a .14 urine test result.   After careful consultation, our client decided that he wanted his case tried to a jury, despite the prejudicial test result. That jury ultimately found our client guilty.

Fortunately, the judge gave our client the exact same sentence he would have handed down had our client pled guilty without going to trial. As long as there is no disincentive to go to trial, we’ll do just that!

****

DWI –Just Reinstates License to Drive – Right to Counsel – .14 Breath Test

In a huge win in a difficult case, a Hennepin County judge ruled in our favor and reinstated our client’s driver’s license after an implied consent hearing (we had already beat the DWI charge on the criminal case). This was a difficult situation where our client was deaf, and had repeatedly begged the arresting officer for either an interpreter or the advice of a lawyer. Although the officer did make some attempts to communicate with our client, he did not know American Sign Language, and the court agreed that her right to counsel was not vindicated. 

This is a huge win not only because our client got her driver’s license back, but because this case also resulted in the police department installing a TTY communication device, for hearing-impaired persons.

****

Finally, Chuck was named, “Geek of the week” by nationally renowned attorney, Justin McShane of Pennsylvania. The “Truth About Forensic Science”, McShane’s forensic blog, named Ramsay winner of his weekly forensic science quiz, aptly entitled, “Geek of the Week.”

Okay, so it is not a Nobel, but it's a good distraction for Chuck.

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 If you follow our blog, you noticed that we recently exposed the fact that the State was charging drivers with DWIs based upon incorrect urine test results. It now appears that this error was due to a systematic failure to implement proper procedures. Simply put, the lab wasn’t performing a routine calculation on its urine samples to ensure that the results were being properly reported.

Here is the Minnesota Bureau of Criminal Apprehension's carefully-worded explanation of this error.  It can also be read below.

Bureau of Criminal Apprehension
1430 Maryland Avenue E., St. Paul, Minnesota 55106
Phone: 651/793-7000 FAX: 651/793-7001 TTY: 651/282-6555
Internet: http://www.dps.state.mn.us/bca/

July 1, 2010

Sgt. Steven Johnson
Anoka County Sheriff’s Office
Tri County Regional Forensic Laboratory
325 East Main Street
Anoka, MN 55303-2489

Re: Summary of an onsite visit to Tri County Regional Forensic Laboratory

Anoka – Sherburne – Wright Counties

BCA Forensic Scientists Dr. Edward Stern and Brent Nelson visited the Tri County Regional Forensic Laboratory located at 13301 Hanson Blvd NW in Andover, MN. The laboratory requested an outside assessment of their alcohol-testing program after a client raised a concern about urine alcohol results. Mr. Nelson and Dr. Stern met with Lieutenant Steve Johnson, Crime Laboratory Director, in the presence of Sergeant Andy Knotz, Quality Assurance Manager, Lead Forensic Scientist Steve Banning, and Forensic Scientist Miranda Thurmer.

Lt. Johnson advised that there was a concern by one of their clients regarding the reported alcohol result and the alcohol results obtained via preliminary breath test results (PBT). While there are explainable situations that would lead to discrepancies with a PBT result conducted roadside versus the evidential test performed such as mouth alcohol effects, possible slight matrix differences, calibration of the PBTs, as well as the time the tests were conducted, the concern raised by the client was taken very seriously. Testing and reporting of the alcohol results was suspended while the root cause of the discrepancies was investigated. This investigation in part consisted of an inquiry to the Bureau of Criminal Apprehension in regards to reporting parameters for alcohol results. It was initially thought the discrepancy involved the application of a conversion factor to convert the results that were obtained in a concentration of grams per 100 milliliters (g/100mls) to the Minnesota statutory value for urines of grams per 67 milliliters (g/67mls).

Review of the of the Quality Control results obtained from the analytical runs from 10/8/09 to 6/23/10 demonstrated acceptable performance across the various analytical levels of 0.05 g/100ml to 0.20 g/100mls. The R- Squared values obtained for all the calibration curves during this time period also demonstrated acceptable values. Also reviewed was the external proficiency performance from the samples provided from the College of American Pathologists (CAP) as well as the CTS proficiency exams. These results all demonstrated this laboratory’s ability to quantify alcohol within the acceptable parameters in accordance with these proficiency tests.

Evidence of quality assurance was also demonstrated by the documentation and maintenance of instrument performance checks, instrument and temperature maintenance logs, as well as the certificates of analysis of the reference standards used demonstrating traceability.

Their Quality Manual was also reviewed in part and states in Section 5.4.7.1 (pertaining to control of data, calculations and data checking) “Each laboratory section is responsible of developing and documenting procedures to ensure that the data is free from calculation errors and quality control measures are reviewed and evaluated before that data is reported.” A review was conducted on their current procedure entitled “Alcohols by Headspace Gas Chromatography” Version 1, November 2009. A draft revision, version 2, also reviewed, contains a new section entitled “Calculations” which defines the application of the conversion factor to convert the urine alcohol results obtained in the concentration units of grams per 100 mls to grams per 67 mls. This proposed change to the procedure should help ensure that the urine alcohol result is converted properly to the units of concentration in accordance with the current statute requirements. It should be noted that even though this laboratory is not currently accredited under ISO 17025 standards, it contains the components of the key elements regarding customer service and quality of results.

The procedure “Preparation of Whole Blood and Urine Controls- version 1, Jan. 2010.” was reviewed. This procedure defines the preparation of in house blood and urine controls. The procedure was found to be correct to produce the desired concentrations, however the urine control proportion resulted in a concentration expressed as grams per 100 mls not grams per 67 mls. It was recommended to either covert the expected value to grams per 67 mls or more appropriately change the procedure to target a urine alcohol of 0.08 grams per 67 mls.

The laboratory was challenged with three spiked urine alcohol specimens previously prepared and examined at the BCA Laboratory. These specimens were analyzed during the site visit and all produced acceptable results when the applicable conversion factor of 0.67 was applied.

The issue was that the urine alcohol results obtained in grams per 100 milliliters were not converted to grams per 67 milliliters in accordance with the statute. The documentation presented demonstrated this laboratory’s ability to quantify alcohol. It is recommended that amended reports be issued for the urine alcohol results conducted during this time period. The amended urine alcohol results that were obtained in grams per 100 milliliters must have the applicable conversion factor of 0.67 applied to the value obtained.

Sincerely,
Staci A. Bennett
Toxicology Section Supervisor – BCA Laboratory
CC: Debra Springer – Assistant Laboratory Director

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While recently working on one of our clients DWI cases, we noticed something interesting: the client’s urine sample hadn’t been tested at the Minnesota Bureau of Criminal Apprehension, as is nearly every sample collected in Minnesota. Instead, the sample had been sent for analysis to the TriCounty Regional Forensics Laboratory in Anoka, Minnesota.

It didn’t take long to uncover a truly massive problem - this lab wasn’t reporting accurate test results. In fact, it was making huge mistakes.

As if there weren’t enough problems with urine testing, we discovered another error unique to this type of test. Under Minnesota law, a driver is per se intoxicated if either their blood alcohol concentration or their urine alcohol concentration is above .08. However, whenever a urine sample is tested, the final result needs to be multiplied by .67 to take into account the fact that alcohol levels are naturally higher in urine than in blood. (Therefore, if a urine test result comes back at a .11, the forensic lab must be multiply that by .67 to get the “actual” alcohol concentration, which would actually be .07!)

When the BCA reports a urine alcohol concentration, it automatically does this routine, elementary-school math before sending its results to the prosecutor. However, in this case TriCounty Regional Forensics Laboratory forgot to perform a simple math exercise, and reported our client’s alcohol concentration 50% higher than it should have been!

Because we constantly scrutinize all of the evidence that the State is bringing against our clients, we caught this error before it could permanently affect our client’s rights. However, seeing this mistake on one urine test makes us wonder . . . how many other urine tests were also reported incorrectly? How many people pled guilty to DWI based on a urine test that they just “assumed” was accurate?

The lesson to be learned? Never, ever fall for the myth that the scientists working for the State are infallible. Mistakes can and do happen - more often than anyone will admit - and not catching a mistake like this can mean the difference between an acquittal and going to jail.

Update: Download the pdf of the Crime Lab's Report of Urine Test Errors

 

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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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Many people believe our government should have secrets, at least when it comes to our national security. But scientists agree that forensic testing should be open. Their formulas, procedures and test results must be reproducible in order to be good science. But government scientists and the companies that supply them disagree.

CMI, Inc. – Owensboro, Kentucky

CMI, the manufacturer of the Intoxilyzer 5000 and Intoxilyzer 8000, is holding its 26^th Annual Meeting of the Intoxilyzers Users Group in Providence, Rhode Island on August 15-19, 2010. Although I own my own Intoxilyzer 5000 and am certified to operate the breath test machine, I am not permitted to attend.   CMI is guarding the program’s agenda, only saying “This conference promises to be an exciting one with many new things, courses, and information to share.”

CMI is notorious for its secretiveness. It has shunned its customers – numerous states including Arizona, Florida, Georgia, Michigan and Minnesota – by refusing to provide access to the software that runs its breath test machines. Only after we obtained a federal court order, was CMI forced to permit us access to its source code. (Our experts are currently in Kentucky at CMI’s headquarters examining the Intoxilyzer 5000 software).

Intoximeters, Inc. – St. Louis, Missouri

Intoximeters, another breath testing company which produces the EC/IR II and the alco-sensor, also conceals the science behind its breath test machine. It is holding its 2010 Users Group Meeting in its home town September 12-15, 2010. Intoximeters program will include the “’Thomas Workman’ Update” and “Source Code Challenges”. Apparently it felt it was being to open, however, as it recently revised its program omitting the above and instead chose the more generic “Legal Challenges.”

It, too, however, will not permit me or defense experts to attend.

Minnesota County Attorneys Association – St. Paul, Minnesota

Under our government’s leadership, it’s not surprising breath test manufacturers are so secretive about their breath test machines, the science they use and the software that runs their machines. The Minnesota County Attorneys Association (MCAA) is one of those organizations that perpetuates the covert treatment of DWI law enforcement. 

The MCAA describes itself on its internet page:

The Minnesota County Attorneys Association is an independent, voluntary organization of County Attorneys dedicated to improving the quality of justice in the State of Minnesota. The Association is a not-for-profit corporation governed by a Board of Directors elected annually by the membership.

The members of the Association are dedicated to the accomplishment of this Mission by developing consensus on legal and public policy issues of statewide significance to County Attorneys. The Mission will be implemented competently and professionally while adhering to the highest ethical standards of the legal profession.

The MCAA closely follows my work. On its home page, it tracks my issues including the consolidated source code case, urine testing cases (see “Matthys Order”), and obtains transcripts (see “Implied Consent Transcript Bank”) of my expert witnesses and case issues. It will not give me access to its indexed transcript data base.

MCAA’s clandestine treatment of DWIs is particularly troubling. Its annual DWI Program includes:

• Initial contact, probable cause and preconditions to a test request
• Testing and refusal issues
• Right to counsel and additional testing issues
• Tips from judges and prosecutors on how to proceed with your case  
• The impact of administrative rules

The program, entitled “Impaired Driving: New Laws, New Issues, New Decisions” will be held June 25, 2010 at the Minnesota Bureau of Criminal Apprehension in St. Paul.

To help satiate my thirst for knowledge, I thought it would be beneficial to attend. I registered and paid my fee. However, the MCAA told me that defense lawyers are not welcome at the continuing education seminar.

I was surprised given the fact that it advertised one of courses would include “Tips from judges … on how to proceed with your case.” I wonder which judges will present the (secret) tips and if they know the MCAA is precluding defense lawyers from hearing the inside information?

Should your government keep secrets? Maybe when it comes to matters of national security. But not when it comes to “science” that puts innocent people behind bars. 

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Almost every client that calls us for legal advice and representation will ask it at some point. Most clients who retain us will hear the question from their friends and family. The government and the media have done a great job of making the “science” of DWI prosecutions seem unbeatable.

Which always begs the question: is it even possible to beat a DWI charge?

The answer, our answer, and the correct answer, is always “YES!”

A good criminal defense attorney will help guide anyone through the hoops, traps and pitfalls that make up our complex DWI laws. A great defense attorney will have a proven track record to demonstrate their ability and desire to make sure that you get the best effort and the best outcome possible. But the truly top-notch defense attorneys are the ones who understand that the “science” surrounding DWI prosecutions is little more than smoke and mirrors - and like any illusion, once you see the “science” for what it really is, your attorney is in the best position to reveal how shaky the State’s case really is.

A recent situation that arose in Colorado highlights the fact that any test - blood, breath, or urine - can successfully be challenged in court by top-notch attorney. In Colorado, over 200 blood tests were found to have been horribly botched - some tests reported a blood alcohol concentration 40% higher than the actual concentration should have been! Everyone here at Ramsay Law Office shuddered a little bit at that statistic, but what really gets to us is that the crime lab still can’t explain how so many tests came back with such inaccurate results.

Many people convince themselves that, “if the State’s test says I was over the legal limit, I must have been over the legal limit.” I’m sure that the vast majority of all of the improperly analyzed samples in Colorado went unchallenged in court. And that is the only real way to lose a DWI case - to not examine the evidence, to take the State’s word at face value.

At Ramsay Law Office, we’ve won many “unbeatable” cases, and we’ve done it by staying current with the scientific literature and never taking the State’s evidence at face value. If you’ve been charged with a DWI, and the State has a blood, breath, or urine test up their sleeve, don’t buy into the hype. Contact Ramsay Law Office - we don’t buy into the hype either. We get results.

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Last week we published our blog series demonstrating how independent testing and independent analysis of the state’s blood and urine samples may help drivers beat DWI urine or DUI blood tests. After we concluded the series, we ran into an interesting wrinkle when we sought to have two urine samples independently analyzed. 

The prosecutor informed us the government had destroyed the urine samples!

I believe the state has a duty to retain such critical evidence until the case has concluded. It should not destroy any blood or urine test samples unless and until the driver has actual knowledge the state intends to destroy the sample and waives the right to examination.

In response, we amended our motions to suppress admission of the test results and to dismiss the DWI charges. We filed the following motions:

1)            Dismissing the Complaint based on the State’s destruction of the evidence.  Specifically, admission of the urine test report violates Defendant’s constitutional rights to Confrontation, pursuant to Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), because the state intentionally destroyed the evidence, thereby denying Defendant the opportunity to independently inspect, evaluate and test his alleged urine sample;

2)         Dismissing the Complaint based on the State’s destruction of the evidence.  Specifically, admission of the urine test report violates Defendant’s constitutional rights to Due Process, pursuant to California v. Trombetta, 467 U.S. 479, 104 S. Ct. 2528 (1984), because the state intentionally destroyed the evidence, thereby denying Defendant the opportunity to independently inspect, evaluate and test his alleged blood sample;

3)         The State has violated the Minnesota Rules of Criminal Procedure and Defendant’s Due Process rights by failing to provide Defendant with his blood sample as part of his requested discovery;

4)         The law of spoilation of evidence is inconsistent with the Minnesota Rules of Criminal Procedure and cannot be applied in light of the rights of Defendant to Due Process and Confrontation; and

5)          Dismissing the charges against Defendant as the State’s destruction of Defendant’s urine sample impermissibly shifts the burden of persuasion onto Defendant for a key element of the offenses with which he is charged.

A judge had previously ruled in our favor when presented with these issues. In a DWI case we brought to jury last July, the judge had ordered the blood test suppressed because the state had destroyed the blood sample. We had challenged admissibility based our client’s right to confrontation, among other things. 

In his order, the judge explained why due process required him to suppress the state’s evidence:

Due process requires that a criminal defendant have the same access to information as the State when the State offers the result of a scientific test. The State did not give Defendant an opportunity to stop destruction of this evidence. If the State offers into evidence the blood-test report, the State must also call the person who prepared the blood-test report, and a person who can testify as to the chain of custody. Without access to the blood sample, Sickmann is denied the right granted in the rules of discovery to reproduce the state's test results. The reproducibility of scientific test results is an important factor when considering the reliability of the test results.

The judge also explained why the Sixth Amendment’s Confrontation Clause requires suppression:

The BCA's policy of destroying the blood or urine sample, therefore, eliminates [Defendant]'s ability to reproduce the blood test results and limits the methods available to him to challenge the reliability of those results. The scope of the [Defendant]'s cross-examination of the witnesses who prepared the test report is unconstitutionally limited.

The Sixth Amendment's guarantee that an accused shall enjoy the right to be confronted by his accusers is vindicated only upon effective and adequate cross-examination of those witnesses. The BCA's policy of destroying the blood sample after a predetermined period of time renders [Defendant]'s opportunity to cross-examine the state's witnesses inadequate and ineffective. Because [Defendant]'s cross-examination of the witnesses who prepared the blood test report is inadequate and ineffective in light of his inability to reproduce the results, his rights under the Confrontation Clause are violated and this violation precludes admission of the blood test report.

Accordingly, this Court must conclude that at subsequent trial of this matter, the blood test report of the BCA is inadmissible.

We will see if other judges understand the constitution as Judge A.P.

Check out our other postings on this issue.

Part 1: Freedom through Independence: Crises in Our Nation’s Forensic Science System

Part 2: Freedom through Independence: Erroneous DWI Blood Test Results

Part 3: Freedom through Independence: Erroneous DWI Urine Test Results

Part 4: Freedom through Independence: Erroneous DWI Intoxilyzer 5000 Breath Test Results

 

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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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Today we conclude our four part blog series on independent testing and analysis. In parts two and three we discussed how independent analysis of the state’s blood and urine samples revealed inaccurate BCA test results. Today our series concludes with our posting of the administration of independent testing. We describe a case litigated last month where our client’s independent blood test refuted the state’s breath test.

INACCURATE DWI BREATH TESTS

We have revealed numerous problems with Minnesota’s Intoxilyzer 5000 breath test machine in this blog and elsewhere. Yet the BCA continues to claim the breath test machine yields accurate, valid and reliable results. With a little foresight, leading to the administration of an independent blood test, we are able to demonstrate the inaccurate breath test results.

The Intoxilyzer 5000 is designed to retain a portion of the breath sample collected in an apparatus called a “tox trap”, a silicon device that attaches to a connection on the back of Intoxilyzer. After a subject has supplied a breath sample, the machine blows the sample out an ejection port, to which the the tox trap is affixed. The operator then seals the tox trap, keeping the air within the tox trap so that it can be independently analyzed in the future.

Although Minnesota breath test machines have this capability, the Minnesota Bureau of Criminal Apprehension (BCA) decided against using a tox trap to preserve breath samples. As a result, we are unable to obtain an independent analysis of a subject’s breath as we are able to do with blood and urine samples. 

We don’t let the BCA’s decision to discard critical evidence prevent us from fully representing our clients. While we can’t independently analyze a breath sample, we are able to obtain an independently collected sample under Minn. Stat. sec. 169A.51, subd 7 (b). The statute states:

The person tested has the right to have someone of the person's own choosing administer a chemical test or tests in addition to any administered at the direction of a peace officer; provided, that the additional test sample on behalf of the person is obtained at the place where the person is in custody, after the test administered at the direction of a peace officer, and at no expense to the state.

Mark’s DWI Breath Test Case & Independent Blood Test 

In a case I litigated last month, we introduced the results of my client’s independent blood test to demonstrate the breath test results were inaccurate. My client was arrested for DWI. He had called me before giving a breath test. During the “midnight call” I arranged for him to obtain an independent blood test.  Mark submitted to the breath test which showed his alcohol concentration was .11, well above the legal limit. His independent blood test, administered two hours and 20 minutes later was .04. 

The two test results cannot be reconciled.

The average burn off rate recognized by forensic scientist (including the Minnesota Bureau of Criminal Apprehension) is .015/hour. Multiplying .015 by 2 1/3, we had a total “burn off” of .035 during the time between the breath test and the blood test. Subtracting the burn off of .035 from .11, the breath test result should have been .075 at the time the blood was drawn – under the legal limit! The breath test result was very inaccurate.

Conversely, if we were to add the total burn off of .035 to the .04 blood test result, we would see that my client’s actual alcohol concentration by blood at the time of the administration of the breath test was .075!

We are well aware of Minnesota’s Intoxilyzer 5000 software problems. The problems deal with sampling, volume measurement and specificity. The BCA continues to insist the test is accurate. This demonstrates the Intoxilyzer 5000’s problems are well beyond source code issues, it does not provide accurate test results. Only by obtaining an independent blood test were we able to prove the breath test inaccurate.

Part 1: Freedom through Independence: Crises in Our Nation’s Forensic Science System

Part 2: Freedom through Independence: Erroneous DWI Blood Test Results

Part 3: Freedom through Independence: Erroneous DWI Urine Test Results

Part 4: Freedom through Independence: Erroneous DWI Intoxilyzer 5000 Breath Test Results

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This week we present our blog series about the value of obtaining independent tests and conducting independent analysis to reveal inaccuracies in government testing. This year alone our firm discovered cases where the Minnesota BCA has reported inaccurate DWI test results. 

Yesterday, we told you how independent analysis of the state’s blood sample in a case last month revealed that it was inaccurate. The BCA reported our client’s blood alcohol concentration was over the legal limit of .08 and independent analysis by a local reputable lab showed it was actually .078 – under the legal limit. 

Today our series continues with urine testing. We describe two separate cases from this year where the prosecutors agreed to dismiss charges as a result of our independent analysis of the state’s sample. In one of the cases, however, the results were actually higher than what the BCA reported.

INACCURATE DWI URINE TESTS

We have blogged extensively that urine testing is not generally accepted by the scientific community as a valid and reliable means of measuring impairment or determining the amount of alcohol in a person’s body. That is another topic. This blog posting addresses analyses of the samples. 

When a urine sample is collected for DWI prosecution, the lab must ensure the evaluation of the sample conforms to those procedures necessary to ensure the test results are valid, accurate and reliable. It appears that the Minnesota BCA does not share this view. 

Eric’s Urine Test Case

In January we tried Eric’s urine case to jury. Before trial we had the state’s urine sample analyzed by an independent lab. The Minnesota BCA had reported the urine alcohol concentration as more than .08. The independent test result was a .07, below the legal limit. 

The information was sufficient to convince the prosecutor to dismiss the .08 charge. The key evidence in most DWI trials – the state’s DWI alcohol sample – became irrelevant. With the critical evidence removed from the case, we easily prevailed on the impaired charge and the jury acquitted Eric. See, First Not Guilty Verdict of 2010: Hennepin County Jury Acquits Man of DWI Charges. I don’t know if the outcome would have been the same without the independent analysis of Eric’s urine sample.

James’ Urine Test Case

While we are unaware of the precise reason for the discrepancy between test results in Eric’s case, we are aware the BCA procedures are lacking as they do not ensure the test results are scientifically valid, reliable or inaccurate. For example, glucose – a sugar found in one’s urine – may ferment, artificially increasing an alcohol concentration test result. Reputable labs promulgate procedures to check for glucose and avoid reporting tests that may be contaminated with the sugar. 

Nationally recognized forensic scientis, Dr. Staubus, recently provided me with the State of Wisconsin’s procedures it implemented to ensure test samples are not contaminated with glucose. Wisconsin, unlike Minnesota, employs significant requirements to ensure glucose does not interfere with valid and reliable test results. They include lab technicians to:

1.            Check all ethanol-positive urine specimens for the presence of glucose with a Keto-diastix reagent strip.  Record the Keto-diastix result on the sample submission form (implied consent specimens) or internal tracking form (MVD, death investigation specimens).

2.            If a urine specimen is glucose-positive, store a room temperature for at least two days and re-analyze for ethanol concentration.  If the ethanol concentration has increased by 5% or more, the ethanol result is not reported and an appropriate comment is placed on the report.

The BCA claims that because each urine kit contains sodium fluoride, it need not promulgate procedures for collection, storage and transportation of urine samples to prevent fermentation. For the same reason, it need not promulgate procedures to check for glucose. 

We proved the BCA wrong. James was arrested for DWI and given a urine test.  The BCA reported the alcohol result as .16.  James was adamant the result could not be correct. We sent the sample to an independent lab to be retested.  The independent test result was .18. The urine alcohol concentration had increased by more than 12 percent! As I explained in a previous blog post, More Issues with DWI Urine Testing: Fermentation, we demonstrated that fermentation can and does occur. Once we provided the prosecutor documentation of our independent analysis, he dismissed all the DWI charges. 

In both Eric’s and James’ cases, we were able to prove the state’s tests results were inaccurate due to independent analysis of the state’s samples. We were able get the .08 DWI charges dismissed and prevailed in both cases.

Tomorrow in the final post of our four part series, we address a different method of checking the accuracy of the state’s alcohol test. Unlike the previous posts where we covered independent analysis of the state’s samples, we will discuss how administering an independent test at the time of arrest may provide valuable information in the defense of a DWI breath test case.  

See our previous postings in the series:

Part 1: Freedom through Independence: Crises in Our Nation’s Forensic Science System

Part 2: Freedom through Independence: Erroneous DWI Blood Test Results

Part 3: Freedom through Independence: Erroneous DWI Urine Test Results

Part 4: Freedom through Independence: Erroneous DWI Intoxilyzer 5000 Breath Test Results

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Yesterday, we blogged about the serious deficiencies of our nation’s forensic science system.  We noted that although Minnesota’s crime lab has escaped wide spread scandal (notwithstanding the source code debacle), anecdotal evidence has emerged indicating the Bureau of Criminal Apprehension (BCA) is not immune from shoddy work.

Using independent analysis and independent testing, our firm discovered specific cases this year where the Minnesota BCA has reported inaccurate Driving While Impaired (DWI) test results.  The BCA’s errors apply to all three DWI alcohol tests – blood, breath and urine.  Today, we report on an erroneous BCA blood test result.

INACCURATE DWI BLOOD TESTS

Our client (“JM”) was arrested in February, 2010 for suspicion of driving while intoxicated in Ramsey County, Minnesota.  The police asked JM to submit to a blood test and she complied.  A paramedic withdrew the blood at the police station and mailed the blood sample to the Minnesota BCA for analysis.  The BCA reported JM’s alcohol concentration to be .08, over the legal limit.  The state revoked JM’s license to drive and charged her with Fourth Degree DWI.

We believe that good DWI defense attorneys never assume that government tests results are accurate.  To verify JM’s BCA test results my firm had her blood retested by a reputable, independent lab.  The results were astounding.  The independent lab’s analysis revealed the BCA test results were inaccurate.  The independent lab results were .078 – below the legal limit!

We have already had JM’s driver’s license reinstated and the incident removed from her driving record.  With the benefit of the independent lab results of JM’s blood sample, I fully expect we will be successful in the criminal DWI case as well. 

Blood testing is widely recognized as the “gold standard” for DWI alcohol testing.  But a test is only as good as those who conduct the testing and only as reliable as the procedures they follow, including reporting the uncertainty in the test results (for an excellent article about metrology and reporting uncertainty, see The Truth About Forensic Science by Pennsylvania attorney, Justin McShane).

When investigating a blood test case, DWI lawyers should obtain not only the final lab reports, but also such information as all Quality Control tests used; all Quality Control tests performed on the test kit; any and all records relating to the test results; Chain of Custody records; the actual Gas Chromatograms; and Proficiency Records or results of proficiency tests for the BCA lab and the analyst who conducted the test.

Finally, attorneys should consider having the government’s DWI blood test results independently evaluated.  In many cases, your clients may gain their freedom through independence.

Tomorrow in part three of our series on independent testing and analysis:  DWI urine test results.

Part 1: Freedom through Independence: Crises in Our Nation’s Forensic Science System

Part 2: Freedom through Independence: Erroneous DWI Blood Test Results

Part 3: Freedom through Independence: Erroneous DWI Urine Test Results

Part 4: Freedom through Independence: Erroneous DWI Intoxilyzer 5000 Breath Test Results

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Our society has a blind faith in government forensic test results. The public’s confidence is particularly fervent in drunken driving cases. This confidence in government tests, however, is unfounded. 

In 2009, the National Research Council reported serious deficiencies in the nation's forensic science system and called for major reforms and new research. It discovered that mandatory certification programs for forensic scientists were lacking, as were strong standards and protocols for analyzing and reporting on evidence. It found a scarcity of peer-reviewed studies establishing the scientific bases and reliability of many forensic methods.

Media reports provide support for the 2009 study. Major crime labs around the country have been exposed for unscrupulous behavior, resulting in erroneous, untrustworthy forensic testing. For example: 

• In Washington, a judge found “ethical lapses, systemic inaccuracy, negligence and violations of scientific principles” in the state’s crime lab and threw out hundreds of breath tests.
• The mayor completely shut down the Detroit crime lab after voluminous errors were discovered.
• The Houston crime lab has had numerous failures.
• Colorado Springs metro crime lab’s blood alcohol results were just plain wrong.
• San Francisco’s crime lab is in the midst of a scandal which jeopardizes “thousands of cases.”

Minnesota’s crime lab, the Bureau of Criminal Apprehension (BCA), has thus far escaped wide spread scandal (notwithstanding the source code debacle). Still, it is not immune. Anecdotal evidence has emerged, signaling similar problems exist in Minnesota. 

This year, our firm has discovered the Minnesota BCA has reported inaccurate test results in specific cases with all three of its DWI alcohol tests: blood, breath and urine. In the following three parts of our series, we will provide information about these cases demonstrating that individual drivers can help protect themselves through both administering independent tests and performing independent analysis of the state’s DWI alcohol samples.

Part 2: BCA Reports Inaccurate Blood Test Results

Part 3: BCA Reports Inaccurate Urine Test Results

Part 4: Intoxilyzer 5000’s Inaccurate Breath Test Results

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

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

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

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

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

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

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We have previously blogged about the unscientific nature of Minnesota’s urine testing regimen.  Despite some adverse court decisions, we continue to find ways to demonstrate our clients’ innocence.  Here is the story of one case where we revealed this month another reason why urine testing should not be used in DWI cases.

My client (“James”) was arrested for DWI and given a urine test.  The result was .16.  James, a former peace officer, was adamant the result was wrong.  During my initial interview, I learned that the container into which James deposited his urine sample was empty before he filled it. 

I explained to James that Minnesota’s DWI urine kits are to include a white powder -- 1 gm of Sodium Fluoride.  The purpose of the chemical is to prevent any sugars present in the urine from being converted to ethanol in-vitro after sampling by fermentation.  Fermentation is likely to occur without the powder, particularly when the sample goes unrefrigerated. 
 
One way to determine whether fermentation occurred is to retest the sample by an independent lab.  Fermentation is likely if the independent test reveals a higher alcohol concentration than the state’s initial test result.  James paid to have the sample retested.  The result:  .18

The urine alcohol concentration had increased by 12 ½ percent! 

We retained the services of a reputable forensic scientist for his opinion.  After reviewing the police and toxicology reports he concluded:

1.         The urine alcohol level is clearly rising in this sample going from a .16 to a .18 on retest.
2.         Fermentation is the cause of this alcohol increase.
3.         Fermentation proceeds at room temperature and this sample spends 4+ days at ambient temperature before it is refrigerated at [the Bureau of Criminal Apprehension (BCA)].  It spends unknown, but likely several days, at room temperature during BCA analysis in which it is goes up in alcohol level.
4.         The client reports no powder in the kit which would significantly accelerate fermentation.
5.         The BCA did not test for glucose or preservative in defendant’s sample.
 
The clear interpretation of the data is a rising alcohol level.  That makes this test and the sample unreliable to show the actual level of defendant’s urine at the time the sample was collected.
 
The Urine alcohol level is not related to intoxication so the sample is of no value to the issue of intoxication.

My client was right! 
 
This demonstrates that urine testing continues to be an unreliable method of determining the alcohol concentration of a person arrested and charged with DWI.  If you have been arrested, call the Ramsay Law Firm immediately.

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As we have blogged before, urine testing is not a scientifically accepted method of determining a driver’s alcohol concentration in a DUI case. Despite this fact, more police agencies are using urine testing to determine drivers' alcohol concentration. 

Our law firm continues to be very successful attacking urine tests. This month prosecutors agreed to reduce numerous urine cases to lesser offenses, eliminating mandatory jail sentences. In a number of instances, the prosecutors voluntarily dismissed the DWI charges entirely.

Judges also recognize the unscientific nature of urine tests. In one case this month, the state charged my client with a Gross Misdemeanor DWI after his urine test revealed an alcohol concentration of .22.    I asked the judge to throw out the urine test result. The state objected. The officer had collected the urine sample two hours and five minutes after the stop. While acknowledging this, the state claimed that it could use “retrograde extrapolation” to prove my client had an alcohol concentration over the limit within two hours. The judge disagreed.

Urine has many limitations, one of which is that it has no burn-off rate – as does breath and blood. At the suppression hearing, the state toxicologist admitted that no reputable scientist could use a urine test result to extrapolate one’s alcohol concentration at an earlier point in time. Without the ability to tie the .22 urine test to any one point in time, the court ruled the alcohol test result irrelevant and suppressed the urine test. 

With no alcohol test, the prosecutor dropped the DWI charges and my client pleaded to a careless driving. Because we had prevailed in the civil implied consent hearing, the careless was not alcohol related. 

We will expose the unscientific nature of urine testing as long as police use urine testing to take away drivers’ licenses and convict them of crimes. We continue to develop new ideas to attack urine and other alcohol tests. Call us immediately if you’ve been charged with a DWI.

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Recently, the Superintendent of the Minnesota Bureau of Criminal Apprehension sent a “fluff piece” to the Minneapolis Star Tribune titled, “Some Love for Forensic Scientists” touting why everyone should have “confidence in the quality of the BCA scientists’ work.”

The whole theme of this article can be summed up in one of the first sentences, where the Superintendent states, “without the painstaking work performed by forensic scientists . . .  I'm confident justice would be served far less often in real life.”

This statement baffles me, and should baffle you too. Where was this confident sense of justice when the Intoxilyzer 5000 was failing? Are we honestly expected to have confidence in an agency that knew for years that the Intoxilyzer was experiencing critical flaws, and boldly refused to fix those errors because of fears that fixing their mistakes would undermine the aura of perfection the BCA attempted to create around the Intoxilyzer? That’s neither justice nor good science.

And what about the BCA’s DWI urine testing regime? Minnesota is probably the only state to actually use first void testing regularly for DWI prosecutions. In fact, even other countries, those with far stricter DWI laws, won’t use urine testing for DWI prosecutions.

When a scientific agency is the only one doing something a particular way, it can only mean one of two things – either they are on the cutting edge of science, or they’re stubbornly clinging to science that has already been clearly and unequivocally refuted.  I can tell you for a fact that the BCA’s treatment of urine testing isn’t cutting edge science.

What we have here is an agency that claims, in the newspapers, to be using scientific principles to ensure justice in the courtroom. What every Minnesotan needs to know, however, is that those scientific principles are typically ignored by the BCA for purely political reasons, and that always leads to injustice.

A truly independent scientific agency would not refuse to fix its Intoxilyzers for fear of looking foolish. An agency dedicated to sound science and fair convictions would not cling to an outdated and discredited method of urine testing to convict Minnesotan drivers of DWI.

Maybe a better title for that article would have been, “Science Only When it Suits Us.”

If you or your attorney have bought into the belief that the scientific evidence presented by the Minnesota BCA is unassailable, you’re wrong. We fight this evidence every day - and win. If you’re being charged with a crime based on supposedly scientific evidence, call the Ramsay Law Firm. We don’t believe the hype – we get results.

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Minnesota’s DWI law (Chapter 169A) consumes 186 pages on Westlaw.  By comparison, the entire First Degree Murder law easily fits on a single page.

Without an attorney who has the experience, knowledge and skills in the field of DWI law, you run the serious risk of losing what otherwise should be a winning case. This is especially true when it comes to the some of the arcane and obscure rules that apply in the civil “Implied Consent” case that trails along with almost every criminal DWI case.

In the context of a criminal case, any attorney worth his or her salt should know that the government must prove that an allegedly intoxicated driver was either driving, operating, or in “physical control” of a motor vehicle.

What most attorneys don’t know - probably because it isn’t even listed in a Minnesota statute - is that the State is also required to prove that a person was driving, operating or in physical control of a vehicle in the civil Implied Consent case. This is an issue that can win cases, but first you have to recognize that the issue exists! 

The civil implied consent law seems to limit the issues a driver may raise at the implied consent hearing. Note that none of the Implied Consent Statute does not permit a driver to challenge whether he or she was actually driving.  Instead it permits a driver to challenge only whether the police officer had “probable cause.”

The scope of the hearing is limited to the issues in clauses (1) to (10):

(1) Did the peace officer have probable cause to believe the person was driving, operating, or in physical control of a motor vehicle or commercial motor vehicle in violation of section 169A.20 (driving while impaired)?

(2) Was the person lawfully placed under arrest for violation of section 169A.20?

(3) Was the person involved in a motor vehicle accident or collision resulting in property damage, personal injury, or death?

(4) Did the person refuse to take a screening test provided for by section 169A.41 (preliminary screening test)?

(5) If the screening test was administered, did the test indicate an alcohol concentration of 0.08 or more?

(6) At the time of the request for the test, did the peace officer inform the person of the person's rights and the consequences of taking or refusing the test as required by section 169A.51, subdivision 2?

(7) Did the person refuse to permit the test?

(8) If a test was taken by a person driving, operating, or in physical control of a motor vehicle, did the test results indicate at the time of testing:
(i) an alcohol concentration of 0.08 or more; or
(ii) the presence of a controlled substance listed in schedule I or II or its metabolite, other than marijuana or tetrahydrocannabinols?

(9) If a test was taken by a person driving, operating, or in physical control of a commercial motor vehicle, did the test results indicate an alcohol concentration of 0.04 or more at the time of testing?

(10) Was the testing method used valid and reliable and were the test results accurately evaluated?

Despite the statutory limitations to the contrary, drivers can and should challenge whether the state can prove they were driving when appropriate.  Many attorneys miss this since the statute does not seem to permit it.

Too many attorneys give a passing glance to the maze of DWI statutes, shrug their shoulders, and decide to plea their clients and outright waive the right to a hearing. At Ramsay Results, we’re always one step ahead, looking beyond the law to make sure that any issue that can be raised, will be raised. It’s how we practice law - and it’s how we get results.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

The refusal provision states:

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

Is Minnesota’s DWI Test Refusal Law Constitutional?

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

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

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

Minnesota Intoxilyzer 5000: Using Science to Beat a Test Refusal

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

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

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

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

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

 

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

 

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

 

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

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

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

Kim refused to test.

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

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

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

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

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

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

 

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We’ve previously posted about Urine Testing and Frye-Mack hearings. Today, a reader asked “what is a Frye-Mack hearing, and should my attorney be asking for one too?” 

When it comes to DWI’s, especially DWI’s involving urine tests, one thing is crystal clear: testing urine to determine a precise alcohol concentration at a given point in time has never been shown, via a Frye-Mack hearing, to be a technique that is generally accepted in the scientific community. The sad reality is that there are volumes of evidence demonstrating that it is not generally accepted by any good scientists, and that Minnesota is unique in that it still presents juries with urine test results in DWI cases. Thus, good attorneys who fully understand the rules of evidence will stand up and demand that a Frye-Mack hearing be held whenever the State attempts to use “junk science” like urine tests against their clients.

 Every Driver Charged With A DWI by Urine Should File A Frye-Mack Motion.

 Although the Minnesota Court of Appeals did not agree with us that Frye applies to urine cases, we are appealing to the Minnesota Supreme Court.  In the past, Judges have ruled Urine Does not Pass the Frye Test. I expect the Minnesota Supreme Court to do the same.

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

Why?

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

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

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

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

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

 

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

 

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

 

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

 

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

 

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

 

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

 

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

 

 

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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.

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

 

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

 

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

 

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

 

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

 

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

 

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Since at least as early as 1952, Minnesota's courts have held scientific techniques to a high standard before they could be admitted in a court case.  Scientific evidence can be admitted only after passing what is called the “Frye-Mack” test.

 

The Frye-Mack test is simple on its face: the proponent of scientific evidence must first demonstrate the scientific community generally accepts the science before it can be admitted. The rationale behind such an analysis is to both insure that judges do not play the role of amateur scientist when evaluating scientific evidence, and to provide uniformity of rulings across the state.

 

Earlier this year a Minnesota judge found in one of my cases that Urine testing in Minnesota does not pass the Frye-Mack test and did not permit the test results into evidence.  This is the only known Urine Frye-Mack hearing in Minnesota … ever!

 

See the court order preventing urine test result in a driver’s license case at RamsayResults.com.

 

Previously, a judge agreed with us and threw out our client’s urine test results for similar reasons, although not based specifically on the Frye-Mack test.  See the Dakota County judge’s DWI urine test order.

 

Last month, one our firm’s attorneys, Dan Koewler, convinced another judge to grant a Frye-Mack hearing.  The state opposed our motion.  The judge’s urine test order can be found here.  That hearing to determine whether Minnesota’s DWI urine tests are generally accepted in the scientific community will be held soon. 

 

            Earlier this month, the Minnesota Court of Appeals agreed with a lower court which prevented another attorney from presenting evidence that the urine test is scientifically invalid.  The Pioneer Press reported on this, here.  This case does not apply to the Frye-Mack test as the attorneys did not bring that issue before either court.  You may read or download the Minnesota Court of Appeals opinion, Hayes v. Commissioner of Public Safety.

 

            Minnesota prosecutors have used the “we’ve always done it that way” argument.  Sure, Minnesota has used urine test in drunken driving cases for decades.  But the state has never presented any evidence that the urine tests in Minnesota are generally accepted in the scientific community.  To the contrary, in a previous blog I’ve listed the peer reviewed scientific articles proving, urine tests are rejected by scientists as being invalid, unreliable and inaccurate.

 

            There is hope.  Stay tuned for my next blog posting where I discuss my oral argument before the court of appeals on this issue. 

 

 

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I've previously written about Minnesota's unscientific, urine alcohol test program.  We've had success convincing judges and prosecutors to ignore urine tests, resulting in victories for our clients.  Despite this, some judges continue to erroneously believe Minnesota Bureau of Criminal Apprehension (BCA) policies ensure valid, reliable and accurate tests.

In order to help educate the judiciary, prosecutors and the public, this week my firm retained the services of Forensic Expert, Professor Alfred Staubus.  Professor Staubus is nationally recognized as an expert witness and consultant in the area of forensic toxicology of alcohol and other drugs.  He has more than thirty years of teaching, research, and providing public service.  He is Emeritus Faculty at The Ohio State University, College of Pharmacy, and President at A & A Consultants, Inc.

We look forward to working with Dr. Staubus and welcome him to Minnesota.

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One Minnesota Judge recently threw out a urine test in Minnesota, citing the lack of scientific safeguards to ensure the result is valid and reliable. Click here for More ...

The Minnesota Bureau of Criminal Apprehension (BCA) claims that such testing is good science. However, overwhelming evidence proves the BCA wrong; such testing is completely absurd.

The BCA cannot cite any evidence to support its claim. In fact, its scientists concede that a person may have absolutely no alcohol in their blood, yet may still have an alcohol concentration over the legal as measured by Urine. Click here to see the transcript of a lab employee's admission.

Below are nine articles from the most respected scientists in the field; which the BCA continues to ignore.

If you have been charged with a DWI/DUI, contact Chuck Ramsay to protect you, your license and your way of life.

The BCA is not able to cite any learned treatises or peer reviewed articles to support its position.

1. Kurt M. Dubowski, "Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects," Journal of Studies on Alcohol, (1983).
"There is massive documentation that the blood alcohol concentration cannot be established sufficiently reliably for forensic purposes from the alcohol concentration of a pooled bladder urine specimen."

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

CHARLES A. RAMSAY & ASSOCIATES, PLLC

450 Rosedale Towers
1700 West Highway 36
Roseville, MN 55113
o: 651.604.0000
f: 651.604.0027
c: 651.336.6603

www.RamsayResults.com

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