Minnesota DWI Defense Blog

DataMaster DMT - Minnesota's New Breath Test Machine Arrives.

Chuck Ramsay — Wed, 18 Apr 2012 10:20:05 -0600

Law enforcement authorities have finally (!) begun using Minnesota’s new breath test machine, the DataMaster DMT, in St. Paul, Ramsey County. The state purchased of the DataMaster in 2010 and deployed the first DataMaster in southeastern Minnesota last summer. The DataMaster replaces the Intoxilyzer 5000, the controversial breath test analyzer that has been in use nearly 30 years.

This test record is one of the first produced by one of the DataMasters in St. Paul.

Last fall Dan Koewler and I traveled to Mansfield, Ohio to tour the manufacturer’s plant, took classes and became certified DMT operators by National Patent Analytical Systems.

While there are many similarities to the Intoxilyzer 5000EN, key differences exist. Both machines use infrared technology to analyze the amount of alcohol in a breath sample, but the DataMaster DMT also utilizes a fuel cell to provide a separate means of analysis. In addition, Minnesota is no longer using a “wet bath” simulator, but has switched to a dry gas simulator.

As we continue to analyze Minnesota’s new breath testing system, we will post the flaws in the breath test program and defenses to this new machine’s test result.

Chuck Ramsay Discusses DWI Urine Tests on Fox 9 News

Dan Koewler — Mon, 09 Apr 2012 10:39:49 -0600

DWI Attorney Discusses DWI Tests: MyFoxTWINCITIES.com

Chuck Ramsay, recently selected as a 2011 Attorney of the Year and and referred to by this interviewer as the "leading expert on drunk driving laws," sat down with Jeff Passolt of Fox 9 News to discuss the significant scientific deficiencies in Minnesota's use of first-void urine alcohol testing (F-VUAT). Watch the interview and hear why Minnesota is the only state in the country that continues to use this type of discredited DWI test, how F-VUAT erroneously punishes thousands of innocent drivers every year, and what you can do to protect yourself from incorrectly being labeled a "drunk driver".

Minnesota Society for Criminal Justice Annual DWI Seminar June 22, 2012

Chuck Ramsay — Sat, 07 Apr 2012 16:03:51 -0600

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

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

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

WHEN: June 22, 2012.

This seminar is for Defense Attorneys Only (no full or part-time prosecutors or AGs) - CLE and Ethics Credits To Be Applied For - Materials on CD Only - Laptops Welcome - Speakers and Topics Subject to Change

8:30 am - Registration and Welcome

9:00 am - Source Code: The Path Forward - MSCJ Source Code Litigators

Named Attorneys of the Year by "Minnesota Lawyer" magazine:
Marsh Halberg, Pam King, Lee Orwig, Chuck Ramsay, Jeff Sheridan

10:00 am - Science of Breath Testing Intoxilyzer & Datamaster:

Tom Burr Forensic Scientist

11:15 am - Defending DWI Cases In Outstate Minnesota - MSCJ Outstate Panel:

Barry Hogen, Jason Kohlmeyer, Pam King, Mike Samuelson, Chris Stocke

NOON LUNCH INCLUDED

1:00 pm - Caselaw and Legislative Update: Doug Hazelton

2:00 pm - Attacking the Forfeiture: Jim Ventura

2:45 pm - Ethics in DWI and Criminal Cases (the Quiz Show): Tom Plunkett

3:45 pm - Defending DWI Cases in the Metro Area - MSCJ Metro Panel:

David Ayers, Mike Brandt, Jill Oleisky, David Risk, Richard Swanson

4:30 pm - Adjourn for Social Hour

Keep reading for APPLICATION...

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APPLICATION

____ $150 Public Defenders and Law Clerks ____ $250 Private Defense Attorneys

SNAIL MAIL - This Application and Check Payable to "MSCJ" to:

MSCJ c/o Paul B. Ahern, 5101 Thimsen Ave., Suite 105, Minnetonka, MN 55345

NAME________________________________________________________

FIRM_________________________________________________________

ADDRESS_____________________________________________________

______________________________________________________________

CITY________________________________STATE________ZIP____________

PHONE______________________FAX__________________

EMAIL___________________________________________________________

DWI Automobile Forfeiture Case Set for Oral Argument (Downloadable Briefs)

Chuck Ramsay — Tue, 03 Apr 2012 13:32:10 -0600

The Supreme Court has scheduled oral argument in Patino v. One 2007 Chevrolet, a DWI vehicle forfeiture case. The hearing is set for 9:00 a.m. at the Minnesota Judicial Center, Courtroom 300.

This is an important case which will determine whether the language of a civil forfeiture statue is to be liberally or strictly construed. In this case the issue is whether the government must obtain a criminal conviction of a designated DWI offense to prevail in a forfeiture matter.

For those personally affected by DWI Vehicle Forfeiture (and law geeks like us), I’ve provided the briefs filed in this case for download:

Minnesota Court of Appeals Decision: Patino v. One 2007 Chevrolet (Minn Ct App, 2011)

Petitioner’s Brief and Appendix by Office of the Nicollet County Attorney (Prosecuting Authority)

Respondent’s Brief by Laura Patino (Owner)

Amicus Curiae Brief of Minnesota Society of Criminal Justice and Minnesota Association of Criminal Defense Lawyers (Ramsay Law Firm, PLLC)

Amicus Curiae Brief of MN Police and Peace Officers - Part 1 of 5

Amicus Curiae Brief of MN Police and Peace Officers - Part 2 of 5

Amicus Curiae Brief of MN Police and Peace Officers - Part 3 of 5

Amicus Curiae Brief of MN Police and Peace Officers - Part 4 of 5

Amicus Curiae Brief of MN Police and Peace Officers - Part 5 of 5

Unlike decision by the Minnesota Court of Appeals, the Minnesota Supreme Court is not bound by any time frame in which to render a decision in the case.

Deliberate Destruction of DWI Evidence Deemed Unconstitutional on Due Process Grounds

Dan Koewler — Tue, 27 Mar 2012 09:21:00 -0600

Ever wonder what happens to that blood or urine sample that gets sent to the government lab for analysis once the testing is done? In Minnesota, the lab will hang on to the sample, giving defendants an opportunity to retest the sample and make sure that the lab’s results are correct.

At least, that’s what happens in most cases.

The Minnesota Bureau of Criminal Apprehension has a policy of destroying these samples after a year, likely to conserve storage space. However, not every case is resolved within a year - some counties will not allow a civil implied consent hearing to be held until the criminal case is completely over; sometimes witnesses are deployed overseas, and proceedings are put on hold; sometimes the issues are so complicated that additional hearings are required. Even if that happens - even if a case is still pending after one year- the current BCA policy is still the same: destroy the sample, without regard for whether or not the case has resolved.

This is even the policy if the defendant’s attorney specifically demands that the government preserve the evidence until the conclusion of the case. However, that policy is likely about to change, after our Court of Appeals ruled that such a procedure is unconstitutional.

In State v. Hawkinson, the court held that the government’s destruction of crucial evidence (a blood sample) while the criminal case is still pending is unconstitutional, especially when the defense went out of their way to specifically demand that the government preserve the evidence. While this decision seems like a no-brainer, the state of the law regarding the storage of evidence is often both complex and confusing, making this decision that much more important.

Being a good defense attorney means knowing the ins and outs of the law, as it develops. That includes making specific demands that may seem redundant and silly - like telling the government to hang onto their key evidence until the trial is over - but preservation demands like this can be the difference between the suppression of evidence and being left hanging high and dry, without any way to challenge the government’s test result.

DWI Breath Test Machines: Just A Lot of Hot Air Without Proper Maintenance & Calibration

Dan Koewler — Tue, 13 Mar 2012 11:33:07 -0600

Following up on my post last week, yesterday I had the opportunity to speak with Colin O'Keefe of LXBN on subject of the faulty Alco-Sensor IV breath test device and its impact on thousands of cases in the Bay Area. In the interview, I explain the background of the story, how local authorities responded and its impact on prior convictions.

Breath of Fresh Air: Faulty DWI Breath Test Machine Affects Thousands of Cases

Dan Koewler — Wed, 07 Mar 2012 10:08:34 -0600

There’s some shocking news coming out of San Francisco, California, where thousands of DWI breath tests are being questioned for their accuracy.

The device in question, the Alco-Sensor IV breath test device, has been used for years to test the breath alcohol concentrations for DWI suspects. And for years, the police have been forging their maintenance and calibration logs. But that’s not what’s shocking.

A vigilant public defender noticed the error after reviewing a machine’s logs for the previous years and noticed that the breath test instrument was reporting nearly perfectly accurate results on every “control” test - something anyone knows “would be mathematically impossible.”

After the police were informed that their accuracy check logs were almost certainly being forged, another fact came to light - the alcohol/gas mixture that is used in this type of control testing (which was supposed to maintain a constant value of .082) had expired in September 2010 . . . so police didn’t even know the true alcohol level of the gas they were using when they forged their calibration documents. That’s awful police procedure, but not what’s shocking about this case.

What is shocking is that the police, and the District Attorney’s Office, almost immediately owned up to the problem. While not outright admitting that the logs for these breath test devices had been intentionally and fraudulently maintained, the District Attorney’s office was first to admit that this was clearly "negligence" on the part of police. Moreover, while the investigation continues, all of the devices were pulled from normal operation.

In light of what regularly occurs in Minnesota, it’s this (eventually) open and honest admission of a problem that is so shocking. While the police who were misusing the Alco-Sensor IV to gain faulty convictions should be ashamed, there is a touch of silver lining in the fact that the police and prosecutors have the integrity to own up to their own shortcomings.

Compare the actions in California with those in Minnesota - where the Intoxilyzer 5000 is still used to test our drivers, despite the fact that this machine is running with known errors that directly affect the test and the government continues to use the machine.

Compare this as well - California law enforcement admit that regular maintenance and calibration of their breath test devices is essential to the validity and reliability of their results. In Minnesota, on the other hand, our own Bureau of Criminal Apprehension has a policy of not maintaining their instruments. If it stops running, they’ll send it in to fix it . . . but not before. If the simulator solution used to calibrate their machines expires (the equivalent of using the expired gas used in California), Minnesota will eventually get around to replacing the solution . . . but continue to use the machine in the meantime.

Errors that are quickly caught and quickly corrected are the norm in most states - but not in Minnesota. Here, errors are covered up, papered over or deliberately ignored. But that doesn’t make them any more shocking; in fact, it makes it that much more important to find these errors and fight them.

But I Had A Prescription! Minnesota DWI Laws Turn Innocent Conduct Into Criminal Behavior.

Chuck Ramsay — Thu, 01 Mar 2012 16:47:15 -0600

Minnesota DWI laws make it a crime to drive a motor vehicle when a “person's body contains any amount of a controlled substance listed in Schedule I or II, or its metabolite….” Since many prescription drugs are listed in Schedule I or Schedule II of Controlled Substances, this means that many drivers violate the law each day, even while strictly following doctors’ orders.

Nationally renowned attorney, Justin McShane, reminded us about the absurdity of this type of law in a blog post, DUI Arrests Purposely Targeting Innocent People. Noting that the Pennsylvania laws “target” innocent people, McShane wrote:

You may be surprised to learn that some DUI laws in Pennsylvania specifically target innocent people. Yes, even if you haven’t had a sip of alcohol or abused any illicit drugs, you can still be arrested for DUI and charged with a DUI equivalent to those with [illegal] blood alcohol levels. Even for a “first offender” this can mean … months in prison, … fines and a … license suspension.

Welcome to the upside down world of DUI-prescription drugs.

…[Y]ou can be arrested and even convicted of a DUI for taking certain common medications which include pain killers, allergy medications and even certain types of cough syrup. The government can even try to prosecute you even if you are taking them while following a valid prescription.

Minnesota’s DWI – drug laws are similar; in terms of scope, enforcement and absurdity.

An Illusory “Exception”?

While the law makes it a crime to have certain prescription drugs in your system, a provision in Minnesota’s law creates a defense to DWI – drugs for those who can prove to a jury or judge that they took the drug in accordance with a prescription. Unfortunately, this exception shifts the burden of proof to defendants and in almost every case would require them to take the stand in their own defense. We believe this violates basic, fundamental, constitutional trial rights. Most alarming, this exception applies only in criminal cases. Minnesota’s Implied Consent Law does not recognize this affirmative defense in civil, drivers’ license cases.

Can this really be what the legislature intended? What percentage of the population is violating this law today? How many of them are legislators driving with a schedule I or II prescription drug in their system?

Look for our blog post coming soon: “Doctrine of Absurd Results.”

Legislature to Close Loophole in Felony Drunk Driving Law

Chuck Ramsay — Wed, 29 Feb 2012 14:49:09 -0600

Last week we told you that the Minnesota Supreme Court accepted review of State of Minnesota v. Retzlaff. In Retzlaff, the driver may escape felony DWI prosecution because a provision in the DWI Felony Law erroneously cites to the wrong provision of the Criminal Vehicular Operation Law.

Last week, the Minnesota House Public Safety Committee approved HF 2246, a bill that clarifies impaired driving provisions in response to Retzlaff. The bill is now before the House Judiciary Committee. The companion bill, SF1825, was approved by Senate Judiciary Committee and sent to the Senate floor.

I would hope the Supreme Court would reverse the lower courts and dismiss the felony, particularly now that the legislature will soon close the loophole in the law.

UPDATE (3/2/12) - By unanimous vote, the House passed the bill. The Senate bill is now pending before the full Senate.

Felony DWI Law: Minnesota Supreme Court to Decide Which Controls - Plain Language or Legislative Intent

Chuck Ramsay — Thu, 23 Feb 2012 16:13:02 -0600

In the case of State of Minnesota v. Retzlaff, the defendant submitted a breath sample of .19 on the Intoxilyzer 5000. Because he had previously been convicted of felony criminal vehicular operation in March 2000, was charged with a Felony DWI.

Normally in Minnesota, a person must have three prior qualified driving incidents within the last ten years in order to be charged with a felony. One statute seems to permit enhancement to a felony where a person was previously convicted of a felony under the criminal vehicular operation / criminal vehicle homicide statute.

In Retzlaff, the defendant argued he could not be charged with felony drunk driving because the enhancement provision of the Felony DWI Law refers to a statute numbered differently from his prior conviction. Retzlaff argued that the law as currently written expressly enhances offenses to Felony 1^st degree DWI when the driver had a prior conviction under 609.21, subdivision 1. In fact, he had been convicted of criminal vehicular operation under section 609.21, subdivision 2A.

The trial court and the Minnesota Court of Appeals found that he could be charged under the statute, despite the obvious discrepancy. The appellate court noted even where the law is clear and unambiguous, further analysis is “necessary if the plain meaning leads to absurd or unreasonable results that depart from the purpose of the statute.”

Because we are convinced that Retzlaff’s literal interpretation would utterly confound the statute’s intent, we affirm his conviction of first-degree driving while impaired.

The Supreme Court granted review on February 14, 2012. We look forward to reviewing the parties’ briefs, watching the oral argument and reading the Supreme Court’s order.

In the meantime, we intend to use “absurd result doctrine” in urine cases to demonstrate that the legislature did not intend to make criminals out of drivers who have zero alcohol in their blood, but are over the legal limit by urine. Watch for our next post in the Minnesota DWI Defense Blog: “Does the Absurd Results Doctrine Preclude First-Void Urine Alcohol Testing?”

What Happens in Minnesota Stays In Minnesota: Canada Loosens Border Restrictions for DWI Convictions

Dan Koewler — Tue, 21 Feb 2012 15:45:19 -0600

The collateral consequences for a DWI conviction are severe - you not only have the possibility of going to jail, but have to deal with the loss of your driver’s license, needing to use special series “whiskey” plates on your vehicles, court mandated treatment, expensive and exasperating ignition interlock programs . . . the list goes on and on. And these consequences keep getting harsher, year after year.

Surprisingly, one collateral consequence that affects hundreds of Minnesotans annually may have just gotten a little easier to deal with. I’m talking about the fact that, until recently, a DWI conviction usually bars you from entering Canada for up to ten years. While there are ways around the law, none of them are reliable and all of them are expensive.

Many of our clients travel to Canada - for business conventions, to hunt or fish, or to visit relatives. Our advice to anyone charged with a DWI, who still wishes to visit Canada, is the same as always - fight the charges! Canada can’t bar your entry if you are never convicted of a DWI.

However, if that’s no longer an option, there is still hope. That’s because starting March 1 Canada has officially relaxed its border restrictions for those with DWI’s on their record.

Citing the severe economic problems that the old law was causing for Canada’s tourism industry, these new regulations may “change 70-80 percent of the turnbacks at the border for people who now qualify.” This new Tourism Facilitation Action Plan should apply to anyone who served less than six months in jail for their DWI offense, and is good news for anyone who has missed taking week-long fishing trips into Canada, or tried to visit Canada on business.

While Minnesota continues to enact harsher and harsher penalties for even first time DWI offenders, it is heartening to see that our neighbor up north has become more willing to cut many offenders a break, and again permit their entry into Canada.

Supreme Court Grants Amicus Status in DWI Forfeiture Case

Dan Koewler — Sun, 12 Feb 2012 21:39:58 -0600

Last week Ramsay Law Firm, on behalf of both the Minnesota Association of Criminal Defense Lawyers and the Minnesota Society for Criminal Justice, asked the Minnesota Supreme Court for permission to file an amicus curiae brief in an upcoming case that will interpret a troubling aspect of Minnesota's DWI vehicle forfeiture statute.

The motions were granted. Soon, in our role as amicus curiae, we'll be submitting our legal brief, explaining in detail exactly why our Supreme Court needs to interpret our DWI vehicle forfeiture statute in a way that protects, rather than undermines, the private property rights of everyone driving on Minnesota's roadways.

UPDATE (April 3, 2012): DWI Automobile Forfeiture Case Set for Oral Argument.

State v. Tanksley: Minnesota Supreme Court Decision Doesn't Tank Issue of DWI Urine Testing

Chuck Ramsay — Wed, 08 Feb 2012 11:34:27 -0600

The Minnesota Supreme Court issued a decision today in the case of State v. Tanksley. In this case, the Court held that the appellant was not entitled to a first-prong Frye-Mack hearing to contest the scientific reliability of first-void urine alcohol tests (F-VUAT), stating that appellant had not properly raised a “relevant reason for holding a [Frye-Mack] hearing” and denying Tanksley’s attempt to raise further arguments for the first time on appeal. On these facts, the Supreme Court held that the general acceptance of F-VUAT testing by the scientific community was irrelevant when someone was charged with the per se crime of driving with an alcohol concentration over .08g per 67 mL of urine.

At first blush, this decision is a harsh blow to anyone charged with a DWI based upon widely-discredited F-VUAT tests. However, Tanksley is as important for what it does say as for what it does not.

This decision makes it clear that our courts will not subject F-VUAT tests to the scrutiny of the fist-half of the Frye-Mack test. But remember . . . the Frye-Mack standard asks two questions. First it asks if a test has gained “general acceptance” (for the last time, it certainly has not, but the Court has ruled that the very question is irrelevant). Secondly, and most importantly, the Frye-Mack test asks whether or not the test has foundational reliability. Those two words are some of the most loaded words in the legal language, and go to the heart of our argument against F-VUAT testing. And that question - “Does F-VUAT testing have foundational reliability?” - was never even addressed by counsel for Tanksley and thus was not addressed in the Tanksley decision.

We have that very question up on appeal, and are prepared to argue it to the Supreme Court in the wake of the Tanksley decision. And while the Tanksley decision made it clear that their decision was based upon a fear that any other ruling would force them to “add an element to the alcohol-concentration offense that is not present, ” our challenge to the foundational reliability of F-VUAT tests has nothing to do with statutory language. In other words, challenging the foundational reliability of a F-VUAT urine test does not hinge on the criminalization of .08g of alcohol per 67 mL of urine; instead, the challenge is based upon how we reach that .08 threshold. And the scientific community makes one thing clear - that foundational reliability requires a second void.

Although the Tanksley decision answered one question, it left another one wide open . . . meaning that F-VUAT tests haven’t yet seen the end of their troubles in court.

#1 Ongoing Problems With DWI First-Void Urine Alcohol Tests (F-VUAT)

Chuck Ramsay — Tue, 07 Feb 2012 15:34:50 -0600

It’s been over a year since the Minnesota Supreme Court issued its decision in State v. Hull, which paved the way for further Frye-Mack challenges to Minnesota’s use of first-void urine alcohol testing (F-VUAT). Those challenges have worked their way through the appeals process, and we’re anxiously awaiting decisions on the cases that we currently have before the Supreme Court. The first half of 2012 should see a decision regarding whether or not F-VUAT can be challenged at a Frye hearing in order to determine whether or not the practice is generally accepted in the scientific community.

Alongside our challenges to the general acceptance of F-VUAT (under the first prong of the Frye-Mack standard) is our companion challenge to the foundational reliability of F-VUAT testing (the second prong of analysis under the Frye-Mack standard). While the second prong of the Frye-Mack standard also involves a “general acceptance by the scientific community” component, this particular issue has not yet been raised before the Supreme Court . . . for now, it’s still a battle that will take place county by county, case by case, judge by judge.

Yet another key issue surrounding F-VUAT, which was also accepted for review by the Supreme Court, is whether or not criminal defendants and civil license revocation petitioners are entitled to present expert testimony to challenge the validity and reliability of F-VUAT tests. Resolution of this issue not only implicates the scientific foundation of F-VUAT testing in general, but also involves the key Due Process right of every defendant to present a complete defense.

What is clear is that the Supreme Court is taking a close look at F-VUAT testing, and that 2012 will likely see several decisions from the Court clarifying both the future of the Frye-Mack test with respect to all types of forensic evidence, as well as the specific use (or exclusion) of F-VUAT testing in Minnesota.

What other top issues will we see in 2012? To see the full list, check out Top Ten Issues in Minnesota DWI Law in 2012.

Top Ten Issues in Minnesota DWI Law in 2012

Chuck Ramsay — Thu, 02 Feb 2012 16:22:18 -0600

Our blog is entitled, “Minnesota DWI Defense – Cutting Edge DWI/DUI News ... Providing Tomorrow’s Issues & Defenses Today.” Consistent with our title, we’re going to give you the top ten issues of DWI and DUI law you will hear about in 2012. Some you would expect, others may be a surprise and still others you may never have heard about before . . . that is, until reading our blog.

Read on to educate yourself on the following topics:

#1 Ongoing Problems With DWI First-Void Urine Alcohol Tests (F-VUAT)

#2 The New Kid In Town – Breath Tests on the DataMaster DMT-F

#3 Don’t Let the Door Hit You on the Way Out– Breath Tests on the Intoxilyzer 5000 EN

#4 Uncertainty of Measurement in Blood, Breath, and Urine Test Cases

#5 On the Ropes – Fresh Concerns Regarding Minnesota’s DWI Refusal Law

#6 DWI Bail and Bond Issues

#7 Minnesota’s Unconstitutional Implied Consent Law

#8 Warrantless Searches and Seizures for DWI Drug Arrests

#9 Paying Attention to the Man Behind the Curtain: Independent Analysis, Storage, Testing of DWI Biological Samples

#10 Scientific Standards in the Twilight Realm: Problems with DWI Blood Testing

Supreme Court To Review Minnesota's DWI Forfeiture Statute

Chuck Ramsay — Thu, 26 Jan 2012 11:05:54 -0600

As we discussed late last year, the Minnesota Court of Appeals interpreted Minnesota’s DWI Forfeiture Statute in a way that defended, rather than undermined, the rights of all vehicle owners. The court came to the common-sense conclusion that the government must return any forfeited vehicle if the driver is never convicted of the crime that gave rise to the forfeiture. The Supreme Court has officially granted review of this decision, meaning it is possible that this case will be overturned. How would this affect future drivers?

Here’s an example: being charged with second degree DWI gives the government the legal authority to seize the vehicle being driven during the offense (regardless of who owns the vehicle). However, being charged with a DWI is not the same as being convicted of a DWI - and smart drivers will file a petition to challenge the vehicle forfeiture. That’s because, under the current state of the law, beating the second degree DWI charge will mean that you should get your vehicle back. If the Supreme Court reverses the appellate court in this case, the situation could be turned on its head.

It’s this question - whether the government can keep a seized vehicle even if you beat the DWI charges - that is about to be considered by the Minnesota Supreme Court. It will be very interesting to see how our Supreme Court decides the future of our faulty DWI forfeiture scheme.

UPDATE (April 3, 2012): DWI Automobile Forfeiture Case Set for Oral Argument.

UPDATE (February 12, 2012): The Minnesota Supreme Court has granted the motions of the MSCJ and MACDL to file an amicus curiae brief. See Supreme Court Grants Amicus Status in DWI Forfeiture Case.

Agents of the Constitution: The "Show Me" State Protects the Fourth Amendment.

Chuck Ramsay — Mon, 23 Jan 2012 16:13:19 -0600

Back in 2008, we strenuously argued in front of the Minnesota Supreme Court about a topic that directly impacted the lives of many of our clients - Minnesota’s practice of ignoring the Constitution and performing warrantless searches in nearly every DWI case. Ultimately, our Supreme Court ruled that a newly minted “single-factor exigency” doctrine meant that the Fourth Amendment did not apply to DWI suspects in Minnesota.

Fast forward to 2012, where the Missouri Supreme Court found otherwise in State v. McNeely. In a concise, but very well-reasoned order, the Court followed prior U.S. Supreme Court precedent in Schmerber v. California and held that, unlike the situation in Minnesota, a warrant is required to search DWI suspects in most cases.

If you have any interest in Constitutional Law, read this decision. The Missouri Supreme Court did an excellent job of interpreting prior precedent and establishing a solid policy for the future - and did so by upholding the Constitution, rather than watering it down.

This decision impacts Minnesota law in two ways. First, it again emphasizes that our courts are divided on this question, which may convince the U.S. Supreme Court to step in and adopt the logic used in Missouri (which would overturn the current state of the law in Minnesota).

The second key feature of the McNeely decision requires us to look a little deeper. In a footnote, the Court noted that prior Missouri law required consent prior to a blood draw, and that if the driver didn’t consent to a test, then “none shall be given.” That key language was held to require warrants in most Missouri DWI cases - and that language was removed by the Missouri Legislature in 2010. Prosecutors then argued that without the “none shall be given” language, police were now free to perform warrantless tests on DWI suspects. Clearly, the Missouri Supreme Court felt otherwise.

What’s interesting about this is the fact that Minnesota has nearly identical language in its own Implied Consent Statute. Here, just like in Missouri prior to 2010, if a person refuses to consent to a test, then “a test must not be given.” However, Minnesota Courts have consistently refused to interpret this provision, sidestepping the issue in case after case, as if this language didn’t exist.

In Missouri, even prosecutors agreed that this type of language prohibited warrantless tests of blood, breath or urine. In Minnesota, this language has gone ignored - for years. Despite the Minnesota Supreme Court’s creation of the “single-factor exigency” doctrine, this legislative enactment should require warrants in nearly every DWI arrest. Perhaps this most recent decision from the highest court in the “Show Me” state will, in fact, show our state the correct way to protect the rights of DWI suspects.

Our Own Minnesota DWI Defense Blog Named Top Blog of 2011

Chuck Ramsay — Tue, 10 Jan 2012 21:25:49 -0600

The Minnesota State Bar Association just named the top 25 legal blogs for 2011, and our own Minnesota DWI Defense Blog made the grade.

We started our blog back in April of 2008 as a way to educate lawyers, judges, and everyday citizens about the facts regarding DWI enforcement (as opposed to the many myths and misperceptions). Now, over three and a half years later, our blog is still going strong, and getting better every day.

Ramsay Law Firm wants to thank all of you who check our blog regularly, and welcome those of you who are stopping by for the first time. Our goal has always been to be the best defense attorneys in Minnesota, and being informed is always the first step in a solid defense.

Chuck Ramsay Named Minnesota "Attorney of the Year"

Dan Koewler — Wed, 14 Dec 2011 12:05:39 -0600

Chuck Ramsay, of our own Ramsay Law Firm, was selected as a 2011 “Attorney of the Year” by Minnesota Lawyer. Selection for this honor was due to both his “leadership in the profession” (Ramsay routinely educates other attorneys on topics relating to criminal law) as well as his instrumental efforts as part of the Consolidated Source Code Trial Team.

This recognition is just the most recent in a long line of awards that Ramsay has received for his dedication to the practice of criminal law, and all of us at Ramsay Law Firm continue to wish him the best in the future. Ramsay will receive the Attorney of the Year award at a banquet held on February 23, 2012.

Evidence of Alcohol Impairment - Driving with Allergies Can Get You Arrested

Chuck Ramsay — Wed, 14 Dec 2011 11:44:56 -0600

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

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

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

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

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

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

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

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