Winning cases for our clients is nothing new, but this week we won a few based on good ol’ science. Unlike previous wins based on constitutional issues, this week we prevailed twice by exposing law enforcement errors that rendered scientific test results unreliable. Science requires precision, and our training gives us an edge when it comes to spotting irregularities in DWI test procedures.
DWI Breath Test Refusal. We’ve been at the forefront of the constitutional push-back against the crime of test refusal for years. District court judges know coercion when they see it, and we make sure they understand the Catch-22 our clients face: submit to a warrantless search or commit the crime of refusal. (In Minnesota, refusal to take a test is a gross misdemeanor crime plus automatic license revocation for at least one year.) The majority opinion in State v. Bernard has left us all—attorneys and judges—with relatively tied hands until the United States Supreme Court takes a look at the issue. (We’ll let you know when that happens.) Fortunately for our clients, when one door gets blocked, we find another way out.
This week we beat a DWI test refusal charge by using our expertise in Minnesota’s breath testing protocol. Dan and I are both certified, by the device manufacturer, as operators and supervisors of the DataMaster DMT breath testing device (“DMT”). I am also a certified Intoxilyzer 5000 (PBT) operator, and a graduate of the prestigious Borkenstein Institute (open to government employees only).
We beat the refusal charge this week because we understand the variables involved in DMT breath testing. Under current law, simply providing a breath sample isn’t enough; drivers have to provide two samples, and the DMT has to deem them both “sufficient.” Sometimes a driver simply can’t blow long enough and hard enough to meet the machine’s requirements. That counts as test refusal.
There are other reasons the machine won’t accept a driver’s breath sample. One example is when the DMT detects “mouth alcohol,” which is often associated with gastric reflux (“GERD”) (mouth alcohol artificially inflates test results because it shows up on the test, but it has no relation to impairment because mouth alcohol has not been absorbed into the blood). When the DMT detects a declining alcohol concentration during the collection of the breath sample (indicative of the presence of mouth alcohol) it reports “INVALID SAMPLE.” (See page 105 of the Minnesota DMT Operator Manual.)
In the refusal case we beat this week, our client blew into the DMT breath test machine, and the machine reported “INVALID SAMPLE.” The DMT operator confused this message with “DEFICIENT SAMPLE” – a common mistake among officer operators – and charged our client with the crime of test refusal (in addition to the DWI charge). Due to a previous qualified driving incident, our client was charged with second degree DWI, and the State forfeited his truck.
When our client came to us, he had no license, no truck, and was facing prison time. We challenged all of it: the license revocation, the criminal charges, and the forfeiture. It didn’t happen overnight, but we’re happy to report that the State returned his forfeited truck, and finally, this week, we got our client his driver’s license back, and the State dismissed the DWI and test refusal charges in exchange for a plea to careless driving.
In this case, our extensive breath testing training was crucial to our success. In DWI law, science is critical, and we’ve got the knowledge necessary to spot and expose errors that help us win our clients' cases.
DWI Urine Test. We’ve successfully challenged urine testing in Minnesota for years. Minnesota is one of the few states that use first-void urine alcohol testing (F-VUAT). Despite the State’s lax standards for urine sample collection, we still find case-changing mistakes in some of our clients’ cases.
When we say lax standards, we’re not kidding. There is only one administrative rule for urine testing: “Any person may administer a urine test.” Minnesota statutes provide no requirements at all. Fortunately, our courts recognize the need for at least some minimum scientific safeguards to ensure the reliability of urine test results.
For example, urine testing kits contain a visible, white powder preservative that inhibits fermentation. Without the preservative, glucose in the urine can ferment. Days, or even weeks, can pass between collection and testing of a sample. Fermentation increases the amount of alcohol in the sample, which leads to artificially high, inaccurate test results.
In the urine case we beat this week, the Minnesota Bureau of Criminal Apprehension lab reported our client’s alcohol concentration at over .20. We reviewed the video and audio recordings of our client’s encounter with the police, and we scoured the police and lab reports. In one report the arresting officer detailed the lack of cooperation shown by our client. Deep within that narrative, the officer noted that at one point our client filled and then completely dumped out the urine collection cup before refilling it. Bingo. The officer was too caught up in recording our client’s attitude to realize that his note cast doubt on the reliability of the test results. When our client dumped out the urine, the preservative, presumably, went with it. We confronted the State with science, and the State agreed to flush the test, and dismiss the case without a hearing.
Perhaps you’re thinking, “Yeah, but can I beat my DWI case?”
You’re not alone; most people—even other DWI attorneys—see a number higher than .08 and they give up.
We get it. The double whammy of implied consent and DWI proceedings is overwhelming. It’s easy to get discouraged.
But, as Wayne Gretzky says, “You miss 100% of the shots you don’t take.”
We take every shot.
We know the science, and we use it to help drivers like you.
For a chance to beat your DWI, call us now.