Minnesota DWI Defense Blog

MINNESOTA DWI INTOXILYZER SOURCE CODE UPDATE: IS YOUR LAWYER A MEMBER OF THE COALITION?

Chuck Ramsay — Fri, 12 Feb 2010 13:50:46 -0600

Allen, Jacob	Hazelton, Douglas V.	Osborn, Sharon
Ahern, Paul	Heefner, Carson	Owens, Robert
Anderson, Andrea Ryan	Heiligman, Joel	Pacyga, Ryan
Appleby, Tina	Herman, Mark	Paule, Robert
Arechigo, John	Hogen, Barry L.	Pearson, Andy
Arneson, Mark	Holly, Gregory	Perkkio, Arlene M. Asencio
Ayers, David L.	Hughes, John	Perry, Jerome
Azarian, Martin	Hunter, Brockton	Perry, Shane
Bader, Michael	Jakway, Thomas	Peterson, Todd
Baker, Stephen	Johnson, Calvin	Petros, Christopher
Bartolomei, Luis	Johnson, Denise	Pineo, Gordie
Bartscher, Joy	Johnson, Dennis	Plunkett, Thomas C.
Bass, Howard	Jones, Robert	Price, John
Bauer, Jason	Kaess, Ryan	Price, Tom
Bauer, Thomas	Kaminsky, Joe	Rainville, Peter
Beito, Thomas	Kans, Doug	Ramsay, Charles
Berglund, Mark	Karon, Mark	Reiter, Fred A.
Bernlohr, Andrew	Keller, Max A.	Reyes, David E.
Berris, Marc S.	Kelly, Mark	Rice, Jon
Betts, Shawn	Kenly, Rich	Ring, Jeffrey
Bluth, Joseph	Koch, Richard	Risk, David J.
Bowen, Richard	Koewler, Daniel	Rochford, Robert
Brant, Michael J.	Kuesel, Tom	Rogosheske, Paul
Brevik, Chris	Kuhn, Jeffrey	Samson, Judith
Brink, John	Lambert, Jeffrey	Samuelson, Michael
Brown, Jason	Lang, Debbie	Sarratori, Paul
Bruno, Fred	Larson, Gregory	Schafer, Brent
Bushnell, Anthony	Latz, Ronald	Schleusner, DeAnna
Caplan, Alan	Lawhead, Brandon	Schmidt, Carolyn Agin
Carey, Jay	Lengeling, Rob	Schulte, Frank
Carlson, James	Leoni, Joe	Schway, Thomas
Carp, Howard S.	Leunig, John	Scott, John
Casanova, Jennifer	Leviton, James H.	Scott, Mike
Cecchini, Pamela	Lewis, Scott	Segal, Charles
Christensen, Robert	Loraas, James	Sessoms, Faison T.
Clippert, Charles	Lothspeich, Dennis	Shands, Cean
Cohen, Edward	Lucas, John	Sheridan, Jeffrey
Cotter, Pat	Magee, Gerald	Shiah, Thomas H.
Daub, Michael	Mahoney, Seamus	Sieben, Kevin
DeCourcy, Kate	Malone, Robert G.	Sieben, Thomas
Degree, Jeff	Mankey, Matt	Simonet, Edward
Devore, Kevin W.	Margoles, Alan	Sjoberg, David
Dinneen, Patrick	Marsden, Brian	Skees, Harvey
Durkin, Rory	Marshall, Kent	Solem, Brian
Eggert, Francis	Mattox, Rick E.	Steele, Brian
Ellis, Deb	Mesenbourg, Jerry	Stephenson, Mark
Erickson, Jacob	Meshbesher, Steven	Sterle, Chad
Eskens, Allen	McCloud, Sam A.	Stiles, Debra
Fisher, Rebecca Rhoda	McCluer, Richmond	Stocke, Christopher
Friedberg, Joseph	McDonald, Michael	Strauss, Jerry
Gallagher, Thomas C.	McGarry, Daniel	Storms, Frederick
Garry, Ryan	McGlennen, Mike	Surface, Samuel
Garvis, Andrew	McGraw, Beau	Swanson, Richard L.
Geck, Timothy	Miller, Gerald	Tackett, John
Gegan, Charles	MN Public Defenders	Tamburino, Joe
Gerdts, Daniel	Mohr, Jeff	Tiechner, Marcus
Gershin, Roger A.	Montpetit, Joel	Timmons, Peter J.
Gherty, Mark J.	Naros, Kris	Toder, Brian
Giancola, Mark	Nelson, Blair	Tolin, Stefan
Goldberger, Rachael	Nelson, Chad	Torgerson, Lynne
Goldetsky, Reid	Nelson, Chris	Tschida, Rodd
Grau, Dean	Nelson, Eric	Undem, John
Gregorious, Kevin	Nelson, Julie	Valentini, David
Grimshaw, Steven T.	Newmark, Eric	Ventura, James M.
Groshek, Christa	O’Brien, Stephen	Walburg, Stephen
Grostyan, Tony	O’Malley, Robert	Walsh, John (Jack)
Grove, Christopher	OC’Green, Kevin	Warn, Cheryl
Guerrero, Dan	Ohlenberg, Richard P.	Watson, Peter
Halberg, Marsh	Oleisky, Jill	Wilson, Kenneth
Halverson, Charles	Oleisky, Robert E.	Wold, Peter B.
Handorff, Thomas	Olson, Eric	Zajac, Kristine
Haswell, Page	Olson, Mark	Zenner, Patricia
Hawkins, Charles L.	Orwig, Lee	Zulk, Christopher

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Intoxilyzer Maker Continues to Mislead Minnesota Courts

Chuck Ramsay — Mon, 01 Feb 2010 12:43:09 -0600

Last week, CMI, the Intoxilyzer 5000 manufacturer, attempted to defend its obstruction of Minnesota's DWI Source Code Coalition's efforts to review the breath test machine's software. In a letter to a letter to a federal court judge, CMI claimed it is willing to provide more access than asked for by any Minnesota driver charged with a DUI.

This is false. My law firm demanded full, unfettered access of the software on disc so that our experts can review it at their labs.

Because CMI and the state government secretly settled the federal lawsuit over our objections, we are limited to reviewing the source code at CMI corporate headquarters. CMI's onerous conditions have caused the cost of review to skyrocket and has slowed the process dramatically.

Interestingly, computer experts routinely conduct independent and adverse examinations of military and corporate source codes. The industry standard is to provide the software on disc to allow the experts to review the source code at their own labs. Why does CMI need protections greater than Coca-Cola, Microsoft and Apple Computer?

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Intoxilyzer Manufacturer Brings Software Review to a Screeching Halt

Chuck Ramsay — Tue, 26 Jan 2010 16:03:50 -0600

After months of negotiations, expert analysis of the breath test machine has come to a halt – before even getting started.

Last June the state of Minnesota and CMI announced they had secretly negotiated a resolution to the source code dispute. Attorneys who represent drivers charged with DWI objected, noting the agreement denied them reasonable access to the machine’s software that determines the guilt or innocence.

Since then, source code coalition leaders hired computer experts to analyze the Intoxilyzer 5000 source code and began preparation for software analysis in Kentucky. CMI, however, has continued to thwart coalition efforts, refusing to provide access meeting industry standards for software analysis.

Upon reaching an impasse with CMI, this week the source code coalition sent this letter to Judge Frank, the federal court judge who oversaw the state agreement with CMI, and to Judge Abrams, the Minnesota state court judge who is overseeing the consolidated state court cases. The coalition is asking the judges to remove the barriers erected by CMI, so the coalition can begin its review of the source code.

Check back soon for further updates.

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Agency Under Siege: The MN BCA Attempts to Repair its Damaged Reputation

Dan Koewler — Mon, 25 Jan 2010 09:13:17 -0600

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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Pawlenty's Proposed DWI Penalties: Panacea or Patsy

Chuck Ramsay — Fri, 22 Jan 2010 08:47:08 -0600

This week, Minnesota Governor Pawlenty proposed new DWI laws in an effort to significantly reduce drunk driving in Minnesota. Highlighting the changes is a requirement that all offenders install ignition interlock devices into all of their vehicles to be eligible to drive. The proposal applies to first time DWI offenders.

The proposal also aims to toughen other aspects of Minnesota DWI laws, including lowering the alcohol concentration limit from 0.20 to 0.15 for enhanced penalties; applying enhanced sanctions to all second-time DWI offenders, regardless of blood alcohol concentration; and reforming drivers’ license revocation laws.

Governor Pawlenty appears to be making a genuine effort to reduce drunk driving. It is well known that to be successful, DWI laws must emphasize rehabilitation. This proposal is a step in the right direction. However, it is riddled with pitfalls - this law is no panacea.

Topping the list of pitfalls are the unrealistic expectations. Supporters of the proposal claim the changes will nearly eliminate repeat offences. "Drunk drivers will no longer be able to get behind the wheel of a car without proving their sobriety," Pawlenty said. (Pioneer Press, Jan. 20, 2010). For that statement to be accurate, every vehicle in Minnesota would need to be permanently equipped with a breath testing locking device as standard equipment. This is not the case. The requirement is limited in duration and other unequipped vehicles are available for use. What’s stopping a person from driving another’s vehicle? What safeguards are there after the device is removed?

Additionally, the governor’s cost expectations are deceptively low. The actual cost to drivers is quite high. Although the cost varies from company to company, drivers must pay to have the device installed and removed, in addition to the monthly fee.

Already, DWI drivers must pay a reinstatement fee of $680. Currently, drivers are required to pay this before they are eligible for a work permit. The current proposal eliminates the availability of work permits and hardship licenses. As a result, the total cost of reinstatement and interlock would be cost prohibitive to many, particularly in this economic climate. Based on my observations, Minnesotans will drive without a valid license if they cannot afford to pony up the funds necessary to drive legally. In the end, the high costs of the program will create more criminals while falling short of expectations.

Not only will the changes not meet expectations, but they will further erode citizens’ constitutional rights (the “DWI exception” to the constitution). Our current Minnesota DWI laws operate under a “shoot first, ask questions later” mentality. When a driver’s alcohol test is .08 or more, their license to drive is automatically revoked, based solely on the accusation. Under this plan, a person would be forced not only to endure the license revocation, but forced to pay well over a thousand dollars to be able to drive. Yet drivers would receive no refund In the event they ultimately prevail by demonstrating the test was erroneous or invalid, or that their rights were otherwise violated.

So are the proposed changes a panacea or a patsy? Time will tell....

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Minnesota's Complex DWI Laws: Daunting for the Dabbling DWI Lawyer

Dan Koewler — Wed, 20 Jan 2010 08:00:49 -0600

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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Minnesota Creates Certification for Lawyers Who Specialize in Criminal Law

Chuck Ramsay — Mon, 18 Jan 2010 08:18:48 -0600

The State Bar Association has created a new certification for Minnesota Lawyers: Specialist in Criminal Law. The Association has not created DWI or DUI Specialization for Minnesota Attorneys.

Minneapolis criminal defense attorney Andrew Birrell, who chaired the committee that worked on the criminal law certification project, said that the specialist designation is meant to be a meaningful thing. “We think the exam is fair and will recognize attorneys who are very well qualified to represent people accused of crimes… and to represent the government [as prosecutors]”, he said. “We’re hopeful people will avail themselves of the opportunity.”

The standards and requirements for Certification of lawyers as Criminal Law Specialists include:

1. Demonstrating “Substantial Involvement in Criminal Law Practice.” This is includes demonstrating five years of continuous practice in the area of criminal law with 25% of their full-time practice devoted to participation in criminal law;

2. Passing a written exam to demonstrate sufficient knowledge, proficiency and experience in criminal law;

3. The standards require Lawyers to show trial experience direct and cross examination of a lay witness, time in trial, contested hearings and by providing writing examples;

4. Lawyers are also required to provide references of Judges, opposing counsel and others.

5. The board also ensures the lawyer meets the ethical requirements.

Certification is good for a period of six years, unless the Specialist is decertified as provided for under these Standards. Specialists are required to be recertified at the end of every six year period. During that period, the lawyer must maintain minimum continuing legal education requirements. After six years, the lawyer must be recertified in order to maintain the designation.

This first exam for criminal law specialist is Saturday, April 24, 2010.

I clearly meet the litigation requirements and plan to sit for the exam in April.

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MINNESOTA DWI INTOXILYZER SOURCE CODE UPDATE: IS YOUR LAWYER A MEMBER OF THE COALITION?

Chuck Ramsay — Fri, 15 Jan 2010 12:11:50 -0600

One Hennepin County judge wrote in a source code order that it may be malpractice for a lawyer not to seek breath test software. That remains to be seen and depends primarily on the outcome of our experts' analysis. Practically speaking, however, the source code coalition has prepared matters to point where it requires little effort from attorneys to take advantage of this issue.

The upside is obvious -- drivers' DWI breath tests could be thrown out. There is little down side -- a minimal contribution from each lawyer and a delay necessitated by the review.

So the question is: is your lawyer a member of the Minnesota Intoxilyzer 5000 Source Code Coalition.

If not, get another lawyer.

I've listed of all members below as of today. In addition to this, all state public defender cases are included.

Here's the latest on the expert analysis of the software: While CMI, the Intoxilyzer 5000 manufacturer, has yet to provide us reasonable access, Marsh Halberg, one of the other lead attorneys, has made significant progress. Our experts are ready to go. We hope to have them in Owensburo Kentucky by the end of the January to begin the software review.

We'll post more updates as they become available.

Allen, Jacob	Heefner, Carson	Paule, Robert
Ahern, Paul	Heiligman, Joel	Pearson, Andy
Anderson, Andrea Ryan	Herman, Mark	Perkkio, Arlene M. Asencio
Appleby, Tina	Hogen, Barry L.	Perry, Jerome
Arechigo, John	Holly, Gregory	Perry, Shane
Arneson, Mark	Hughes, John	Peterson, Todd
Ayers, David L.	Jakway, Thomas	Petros, Christopher
Azarian, Martin	Johnson, Calvin	Pineo, Gordie
Bader, Michael	Johnson, Denise	Plunkett, Thomas C.
Baker, Stephen	Johnson, Dennis	Price, John
Bartolomei, Luis	Jones, Robert	Price, Tom
Bartscher, Joy	Kaess, Ryan	Rainville, Peter
Bass, Howard	Kaminsky, Joe	Ramsay, Charles
Bauer, Jason	Kans, Doug	Reiter, Fred A.
Bauer, Thomas	Karon, Mark	Reyes, David E.
Beito, Thomas	Keller, Max A.	Rice, Jon
Berglund, Mark	Kelly, Mark	Ring, Jeffrey
Bernlohr, Andrew	Kenly, Rich	Risk, David J.
Berris, Marc S.	Koch, Richard	Rochford, Robert
Betts, Shawn	Koewler, Daniel	Rogosheske, Paul
Bluth, Joseph	Kuesel, Tom	Samson, Judith
Bowen, Richard	Kuhn, Jeffrey	Samuelson, Michael
Brant, Michael J.	Lambert, Jeffrey	Schafer, Brent
Brevik, Chris	Lang, Debbie	Schleusner, DeAnna
Brink, John	Larson, Gregory	Schmidt, Carolyn Agin
Brown, Jason	Latz, Ronald	Schulte, Frank
Bruno, Fred	Lawhead, Brandon	Schway, Thomas
Bushnell, Anthony	Lengeling, Rob	Scott, John
Caplan, Alan	Leoni, Joe	Scott, Mike
Carey, Jay	Leunig, John	Segal, Charles
Carlson, James	Leviton, James H.	Sessoms, Faison T.
Carp, Howard S.	Lewis, Scott	Shands, Cean
Casanova, Jennifer	Loraas, James	Sheridan, Jeffrey
Cecchini, Pamela	Lothspeich, Dennis	Shiah, Thomas H.
Christensen, Robert	Lucas, John	Sieben, Kevin
Clippert, Charles	Magee, Gerald	Sieben, Thomas
Cohen, Edward	Mahoney, Seamus	Simonet, Edward
Cotter, Pat	Malone, Robert G.	Sjoberg, David
Daub, Michael	Mankey, Matt	Skees, Harvey
DeCourcy, Kate	Margoles, Alan	Solem, Brian
Devore, Kevin W.	Marsden, Brian	Steele, Brian
Durkin, Rory	Marshall, Kent	Stephenson, Mark
Eggert, Francis	Mattox, Rick E.	Sterle, Chad
Erickson, Jacob	Mesenbourg, Jerry	Stiles, Debra
Eskens, Allen	Meshbesher, Steven	Stocke, Christopher
Fisher, Rebecca Rhoda	McCloud, Sam A.	Strauss, Jerry
Friedberg, Joseph	McDonald, Michael	Storms, Frederick
Gallagher, Thomas C.	McGlennen, Mike	Surface, Samuel
Garry, Ryan	McGraw, Beau	Swanson, Richard L.
Garvis, Andrew	Miller, Gerald	Tackett, John
Geck, Timothy	MN Public Defenders	Tamburino, Joe
Gegan, Charles	Mohr, Jeff	Tiechner, Marcus
Gerdts, Daniel	Montpetit, Joel	Timmons, Peter J.
Gershin, Roger A.	Naros, Kris	Toder, Brian
Gherty, Mark J.	Nelson, Blair	Tolin, Stefan
Giancola, Mark	Nelson, Chad	Torgerson, Lynne
Goldberger, Rachael	Nelson, Chris	Undem, John
Goldetsky, Reid	Nelson, Eric	Valentini, David
Grau, Dean	Nelson, Julie	Ventura, James M.
Gregorious, Kevin	Newmark, Eric	Walburg, Stephen
Grimshaw, Steven T.	O’Brien, Stephen	Walsh, John (Jack)
Groshek, Christa	OC’Green, Kevin	Warn, Cheryl
Grostyan, Tony	Ohlenberg, Richard P.	Watson, Peter
Grove, Christopher	Oleisky, Jill	Wilson, Kenneth
Guerrero, Dan	Oleisky, Robert E.	Wold, Peter B.
Halberg, Marsh	Olson, Eric	Zajac, Kristine
Halverson, Charles	Olson, Mark	Zenner, Patricia
Handorff, Thomas	Orwig, Lee	Zulk, Christopher
Haswell, Page	Osborn, Sharon
Hawkins, Charles L.	Owens, Robert
Hazelton, Douglas V.	Pacyga, Ryan

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Where's the Beef?? Government's Attempt to Defend Urine Testing Lacks Meat

Dan Koewler — Thu, 14 Jan 2010 14:35:25 -0600

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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First Not Guilty Verdict of 2010: Hennepin County Jury Acquits Man of DWI Charges

Chuck Ramsay — Tue, 12 Jan 2010 14:28:10 -0600

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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Intoxilyzer 5000 Source Code Consolidation Order

Chuck Ramsay — Mon, 11 Jan 2010 15:59:06 -0600

The Minnesota Supreme Court issued an Order consolidating Minnesota's Intoxilyzer 5000 Source Code cases.

The Supreme Court assigned ALL cases to Judge Abrams. This does not apply to public defender cases.

Judge Abrams is an excellent choice. He has done very well organizing and planning the First Judicial District's source code consolidation. His case management order follows the federal court system's multi-district litigation rules.

Criminal defense attorneys should contact lead counsel Chuck Ramsay, Marsh Halberg or Jeff Sheridan for more information.

If you have been arrested and submitted to a breath test by the Intoxilyzer 5000, make sure your attorney is a member of the source code coalition. Otherwise, your rights may not be vindicated.

Minnesota Intoxilyzer 5000 Source Code Update: Ramsey County to Consolidate Cases?

Chuck Ramsay — Tue, 22 Dec 2009 12:38:36 -0600

As the battle of Minnesota’s Intoxilyzer 5000 continues with no real end in sight, many metro counties have consolidated their source code cases to conserve state resources, prevent inconsistent rulings and to manage the growing caseload.

The First Judicial District, with its seven counties, has consolidated its cases before one judge and has issued an Intoxilyzer 5000 Source Code case management order along the lines of the federal court’s multidistrict litigation rules. Judge Abrams, who teaches complex litigation at the University of Minnesota Law School, has by far done the best job organizing and scheduling the consolidated cases. Other counties have begun formal consolidation of Intoxilyzer 5000 source code cases, including Hennepin, Anoka and Chisago.

Judge Abrams:

When I began writing this blog last month, Ramsey and Washington Counties seemed to be of the only metro-area counties which had yet to consolidate.

Ramsey County’s chief judge had written to the Minnesota Supreme Court requesting consolidation on a state wide basis, but the request was denied for procedural reasons.

This week, Minnesota Lawyer reported that Ramsey County has a consolidation plan in place.

Ramsey County is following a kind of hybrid model of consolidation, Ramsey County District Court Chief Judge Kathleen Gearin said. Cases involving challenges to the source code will be assigned to one judge, but only for the purpose of resolving the source code issue. The cases will then be assigned to different judges for trial. Cases not involving source code issues must proceed, she added. ... Gearin said that there are discussions ongoing about multi-county proceedings, but Ramsey doesn’t want to wait while those talks run their course.

I have yet to see any orders reflecting this.

Judge Gearin:

The last Ramsey County order I received was before Thanksgiving from Ramsey County Judge Marrinan. The order addresses the timing and sequence of expert review of the breath test machine’s software.

The order states:

1. Defendant shall receive access to the source code from CMI pursuant to the instructions and parameters set forth in State v. CMI.

2. Consistent with the Permanent Injunction at Paragraph 3(b) of the above, the Court has executed a Protective Order in this matter, which is attached.

3. Within 90 days after execution of the NDA, Defendant's expert shall report his or her findings to Defendant's counsel, who shall forward a copy to the Court and to counsel for the State within three working days after receipt.

4. The State and CMI shall then have 90 days in which to have their experts review the report of defendant's expert, review the source code, and submit their reports.

5. The State and CMI, shall forward copies of their experts reports to the court and Defendant's counsel within three working days after receipt.

6. Defendant shall appear for a JT in this matter on 7/26/10 at 8:45 am in Maplewood Courtroom A.

Judge Marrinan:

The Second Judicial District includes only Ramsey County. Cities within Ramsey County include:

While the Ramsey County order is designed to keep the source code battle moving, it is silent regarding issues that already have arisen. For example, CMI, the Intoxilyzer 5000 manufacturer, continues to thwart the Minnesota source code coalition’s experts’ review of the software. As a result, we have been unable to begin analyzing the code which will certainly delay our experts’ report. What if we are unable to complete the report in the time they required?

Minnesota DWI Defense Blog will continue to update its readers as information becomes available on the Intoxilyzer 5000 Source Code battle.

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Minnesota's Test Refusal Law: Finding a Loophole in a "Knotty" Law

Chuck Ramsay — Mon, 21 Dec 2009 10:08:23 -0600

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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I was arrested for a DWI after my Urine Test was Over .08. What is a Frye-Mack hearing, and why is my attorney asking for one?

Chuck Ramsay — Thu, 17 Dec 2009 16:29:50 -0600

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?”

The Constitution’s Guarantee of Right to Trial by Jury

Whenever a prosecutor charges a person with a crime that could result in jail, the Constitution provides that person with numerous constitutional rights. One of those sacred, longstanding rights is the right to a trial.

At its most basic, a trial is nothing more than a fact finding process. That means that everyone charged with a crime has the right to have a jury of his or her peers listen to the evidence and determine, based solely on that evidence, whether or not the State has proven that the “defendant” committed a crime beyond a reasonable doubt.

How Good Defense Lawyers Are Worth Their Value

Good Lawyers know how and what types of evidence can be presented to that jury. Great lawyers know how to keep out evidence that should not be admitted at trial.

Anyone who has watched Law and Order realizes that there are a variety of grounds for an attorney to get evidence suppressed. Usually, on TV, it’s because the evidence was obtained by police officers that broke the law.

However, in real life, it’s far more likely that an attorney will be attempting to suppress evidence because it’s simply not relevant, or because it is so unreliable that it would do nothing more than confuse the jury. Sometimes, it’s because the evidence looks good at first glance, but is really nothing more than smoke and mirrors. And this is where the phrase Frye-Mack comes into play.

A Frye-Mack hearing is an evidentiary hearing, held before any trial takes place, and it is used to determine if “scientific evidence” can be presented against an accused defendant. It’s called a Frye-Mack hearing in Minnesota based upon two reported cases that outlined the procedure; United States v. Frye, a Washington D.C. case from the 1920's that dealt with a type of lie detector test, and State v. Mack, a Minnesota case from the 1980's that dealt with “hypnosis” testimony.

As a result of these two cases (and many others that followed), Minnesota has two very specific criteria that need to be met before the State can introduce scientific evidence to a jury. These criteria are aimed at preventing juries from being presented with “junk science.”

Frye-Mack Prong 1: Has the test gained general acceptance in the scientific community?

Under what is called the “first prong” of Frye-Mack analysis, the State must prove that the scientific technique that is being used has gained general acceptance in the scientific community. As a fun example, we’ll use phrenology, or the belief that the personality traits of a person can be derived from the shape of that person’s skull.

In our example, before a jury could find someone guilty of murder based on phrenological evidence (let’s say the State can prove that the defendant has the dreaded “murder bump” on his forehead) the State would have to show that phrenology is a scientific technique that is generally accepted in the scientific community. There would be a Frye-Mack hearing, and the State would fly in experts from around the world to testify about how everyone uses and respects phrenology, why phrenology is such good science, and maybe even why the specific bumps on their own heads prove that they are credible witnesses. If, after all the testimony, the judge is convinced that phrenology is generally accepted in the scientific community, the State has succeeded on “prong one” of the Frye-Mack test.

Frye-Mack Prong 2: Did they do the test properly?

Having successfully met its burden on prong one, the State would then have to meet its burden on “prong two” of the Frye-Mack test. This second prong means that the State must not only show that a technique is generally accepted in the scientific community, but also that the laboratory conducting the tests in the individual case complied with appropriate standards and controls.

In our example, the State would meet its burden under the second prong of the Frye-Mack tests by presenting more experts that could show how phrenology typically works (probably with models of human skulls and demonstrations on how to use weird measuring devices). The State would then have to show that, in the case of our alleged murderer, those accepted techniques were used to conclude that yes, our alleged murderer does have the “murder bump” on his forehead, so of course he must be guilty.

Of course, in a real courtroom, a jury would never hear evidence of phrenology. That’s why Minnesota uses the Frye-Mack standard - to prevent the jury from even being exposed to junk science. In our example, I doubt a prosecutor could find one reliable expert that could sit in court and say, with a straight face, that the scientific community generally agrees that phrenology is valid science. Without proof of general acceptance in the scientific community, the State fails to meet its burden under prong one of Frye-Mack analysis and the evidence is excluded as junk science. We can all breathe a small sigh of relief knowing that the lumps on our head won’t lead to criminal charges in the near future.

However, the two prongs of the Frye-Mack test apply not just to phrenology, but every type of -ology, up to and including every type of mechanical or physical scientific test. Both prongs of the test, general acceptance and foundational reliability, must be met before scientific evidence can be presented to a jury.

DNA evidence, for example, has already been proven to be generally accepted at a Frye-Mack hearing, and juries now see this type of evidence every day. Polygraphs (lie detectors), on the other hand, have not been shown to have gained general acceptance in the scientific community, and until that happens in Minnesota, the results of polygraph tests cannot be presented to a jury.

The list of types of scientific evidence that has undergone the scrutiny of the Frye-Mack test is long, but every scientific technique that has been analyzed has one thing in common - the State had its chance to prove that the technique had gained general acceptance in the scientific community, and either succeeded or failed in its showing.

This, in a nutshell, is what a Frye-Mack hearing is - a special evidentiary safeguard that is in place to make absolutely sure that a person can’t be proven guilty based on science, unless and until that type of science has gained general acceptance in the scientific community.

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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Minnesota DWI Lawyers Pissed about Urine Cases: What Happens When Judges Assume the Role of Scientist

Chuck Ramsay — Tue, 15 Dec 2009 15:56:06 -0600

In a cruel, ironic twist, a Minnesota Court of Appeals ruling today makes the least scientific alcohol test the most unassailable. In Schroeder v. Comm’r of Pub. Safety, A09-238 (Minn. Ct. App. Dec. 15, 2009), the court rejected a driver’s claim that urine testing is not a practice that is generally accepted in the scientific community as a valid and reliable method of determining alcohol concentration.

Minnesota uses three types of DWI alcohol testing methods: blood, breath and urine. Blood is widely recognized as the most reliable. Even breath tests, which suffer from some well known problems, are used around the world. However, most states do not use urine testing at all to determine a specific level of alcohol concentration.

As I’ve previously blogged, urine testing is not scientifically valid, reliable or accurate. The Society of Forensic Technologists (SOFT) and The Toxicology Section of The American Academy of Forensic Sciences (AAFS) are against it in their Forensic Toxicology Laboratory Guidelines. The National Highway Traffic Safety Administration is against it. No scientific peer reviewed article supports the use of urine alcohol testing. More than a dozen forensic journals have published peer reviews establishing that urine testing is bad science. Minnesota is the only state in the country to use it the way it does, and the way that Minnesota does it means that a person may have no alcohol in their blood, but still be charged for having a urine alcohol concentration over the legal limit!

One district court who tackled this issue head on had some choice words to say about this type of urine testing. The Honorable Judge Thuet, in the case of Carrell v. Comm’r of Pub. Safety, said:

“[T]he continued use of a testing procedure which experts agree may not measure the level of alcohol concentration, and thus intoxication of a driver at the time it is administered, and which the state's witness admitted may yield results that do not correlate with blood tests performed at the same time, constitutes an absurd result which the Legislature could not possibly have intended, especially given the stated goal of enhancing safety by removing intoxicated drivers from the roads. In light of this, the Court is compelled to rescind the revocation of the Petitioner's driving privileges.

Despite the opinions of some Minnesota judges and almost the entire scientific community, the court of appeals rejected our demand for a Frye-Mack hearing (which would require the State to show that urine testing is generally accepted in the scientific community). Instead, the court implicitly adopts the Daubert standard (a standard used in other jurisdictions – ironically, those that don’t even use urine testing – that allows judges to simply take judicial notice of reliability of urine testing). By ignoring our Frye-Mack request, the court is attempting to make the presumption that urine testing is reliable irrefutable.

To understand just how troubling this ruling is requires a brief explanation of the standard that should have been applied by the Schroeder panel (the Frye-Mack standard) versus the standard that was actually applied (the Daubert standard) and why this is a dangerous precedent for the entire state of Minnesota.

Minnesota’s Frye-Mack standard has been steadily evolving since the early 20^th century, and by the 1980's the Minnesota Supreme Court summarized the test in State v. Mack, 292 N.W.2d 764, 768 (Minn.1980), by stating that, “the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where experts in the field widely share the view that the results are scientifically reliable as accurate.”

The Supreme Court summed up its holding in State v. Mack two decades later by stating that the ultimate purpose of determining the admissibility of mechanical or scientific evidence is to ensure that, “the particular evidence must have a foundation that is scientifically reliable.” State v. Roman Nose, 649 N.W.2d 815, 818 (Minn. 2002).

The Supreme Court then carefully and definitively created a two-pronged standard that must be used to determine if a particular piece of mechanical or scientific evidence has a foundation that is scientifically reliable. Id. Concisely stated, the Court held that, “a novel scientific technique that produces evidence to be admitted at trial must be shown to be generally accepted within the relevant scientific community, and second, the particular evidence derived from the technique and used in an individual case must have a foundation that is scientifically reliable. Id. at 818-819 (citing Goeb v. Tharaldson, 615 N.W.2d 800, 810 (Minn.2000) [reaffirming adherence to Frye-Mack standard after Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)]).

Unfortunately, even a cursory reading of the Schroeder opinion shows that, rather than follow the Supreme Court’s mandate in the seminal Frye-Mack case of State v. Roman Nose, the Court of Appeals instead chose to utilize the Daubert standard for admitting scientific evidence. This, despite the fact that Minnesota has not adopted the Daubert standard, because it is less rigorous than the Frye-Mack standard. State v. Traylor, 656 N.W.2d 885, 891 (Minn.2003). This, despite the fact that one of the judges on the Schroeder panel, when confronted with a specific request to use the Daubert standard instead of the Frye-Mack standard, held that “[T]he task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court.”Yang v. State, 2008 WL 1972856 (Minn.App. 2008) (citing Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn.App.1987), review denied (Minn. 18 Dec. 1987).

The Schroeder panel started its cursory two-paragraph analysis by accurately stating that, “[t]he Frye-Mack test is aimed at reliability.”Schroeder at 5. This is a fairly close approximation of the Supreme Court’s summation of Frye-Mack in the Roman Nose case, cited supra in this post.

What the Schroeder panel did next, however, was to eviscerate the standard two-prong Frye-Mack analysis and instead fall back upon the rejected Daubert standard. After reciting the fact that Frye-Mack is indeed concerned with “reliability,” the panel chose to ignore the fact that Frye-Mack has established a clear and specific procedure for determining that “reliability.” Instead, the Panel simply held, without analysis, that “reliability” as a general concept had already been established by two Court of Appeals cases, Genung v. Comm’r of Pub. Safety, 589 N.W.2d 311 (Minn. App. 1999) and Hayes v. Comm’r of Pub. Safety, 773 N.W.2d 134 (Minn. App. 2009), pet. for review filed (Minn. Nov. 6, 2009). This appellate determination that, nothwithstanding the views of the scientific community, urine testing has mystically become reliable science by judicial fiat is precisely what Minnesota’s Frye-Mack regime is designed to avoid. Neither of the two cases cited by the Schroeder panel dealt with whether or not the testing method at issue had been proven to be “generally accepted in the scientific community,” the required first-prong burden that applies under Frye-Mack. Judicial fiat, not hard science, now appears to be the new test that applies to scientific evidence in Minnesota.

What is so troubling about this sudden development is that the Supreme Court has gone to great, detailed length to carefully explain exactly what type of analysis is required under prong one of Frye-Mack . . . and, as if able to predict the future, the Supreme Court even managed to explicitly reject the approach taken by the Schroeder panel.

Rather than paraphrase or run the risk of misinterpreting the plain language of the Minnesota Supreme Court, a few direct quotations are all that is necessary to demonstrate that the Court of Appeals is attempting to undermine the entire appellate process. The first quote comes from State v. Roman Nose, and explains why the Schroeder panel’s simple and misguided reliance on prior cases (where the issue of general acceptance in the scientific community was not at issue, much less litigated) is improper: The Court stated:

“[T]he issue of whether a technique is generally accepted within the relevant scientific community is best determined by evidentiary hearing. See Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn. 2000). There was no evidentiary hearing on general acceptance in this case and, contrary to the dissent's argument, hearings before other district courts will not substitute for the evidentiary hearing required here. Without an evidentiary hearing on the views of the relevant scientific community, trial and appellate judges become scientists, an approach we clearly rejected in Goeb. 615 N.W.2d at 813-14. State v. Roman Nose, 649 N.W.2d 815, 819, fn.3 (Minn. 2002)”

What immediately comes to mind is that the Schroeder Panel is indeed viewing itself as “amateur scientists” despite all warnings to the contrary by the Supreme Court. Relying on Hayes (where defense experts were actually precluded from testifying) and Genung (where the prosecution did not even present expert testimony, and where the defendant did not even contest the foundation for the urine test) simply cannot comply with the demand to hold an “evidentiary hearing on the views of the relevant scientific community.” Thus, we have a new breed of judge-scientist, a dangerous breed that the Supreme Court has warned the bar about since the dawn of the new millennium.

This type of logic - effectively using the doctrine of “judicial notice” to find that a scientific technique is indeed generally accepted in the scientific community - was shot down by the Roman Nose court years before it was utilized by the Court of Appeals. The Supreme Court in Roman Nose took the time to state clearly:

“The dissent argues that we should take “judicial notice” of the inherent reliability of the PCR-STR method of testing DNA unless something in the record indicates a reason to depart from the findings of other jurisdictions. But that is not the procedure we have established for determining the admissibility of scientific evidence. Moreover, there is an inadequate record to support taking judicial notice of the general acceptance of the PCR-STR method because appellant's request for a hearing on the issue was denied by the trial court.”State v. Roman Nose, 649 N.W.2d 815, 823, fn 9 (Minn.,2002)

As if the above quotations did not make the need for an evidentiary hearing clear enough, and the Supreme Court felt obligated to clearly explain to the lower courts how to conduct Frye-Makc analysis, the opinion in Roman Nose further elaborated on the need for an evidentiary hearing. Again, this is a hearing where the specific issue presented was whether or not a mechanical or scientific technique is generally accepted in the relevant scientific community. The Court repeated that:

“It is not enough for us to believe the test has gained general acceptance in the relevant scientific community. The state must establish that it has gained general acceptance, and it must do so by evidentiary hearing.”State v. Roman Nose, 649 N.W.2d 815, 820, fn.5 (Minn. 2002)”

In the case of Schroeder v. Comm’r of Pub. Safety, the Appellant was asking for nothing more than what the Supreme Court says is absolutely necessary - an evidentiary hearing. Appellant merely wanted the district court to compel the Commissioner to prove, once and only once, one specific proposition. And that proposition came directly from the Supreme Court: Is urine testing, as practiced by Minnesota, a mechanical or scientific technique that has gained general acceptance in the scientific community?” This question was never raised in Genung. It was never raised in Hayes. It was never ruled on by either court. For the Schroeder panel to so callously disregard the Supreme Court’s expectation that Frye-Mack issues will be resolved via nothing other than an evidentiary hearing is a dangerous precedent indeed.

By eliminating the need for an evidentiary proponent to prove general acceptance of a technique, and replacing this test with the nebulous, impossible to define threshold of bald, “reliability,” the Schroeder panel has set dangerous precedent and has demonstrated exactly why Minnesotans do not want their judges to act as scientists.

We are continuing to fight the use of bad science to ruin people’s lives. Let’s hope the Minnesota Supreme Court accepts review and overturns the court of appeals absurd rulings.

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Good DWI Lawyers Must Beat Criminal, License and Vehicle Forfeiture Cases

Chuck Ramsay — Mon, 14 Dec 2009 16:26:17 -0600

In Minnesota, to beat a DWI, a good criminal defense attorney needs to win not once, but twice. That means succeeding on the criminal case (where the penalties include possible jail time, fines, and years of probation), and also winning the separate Implied Consent case (which deals solely with a person’s driver’s license and license plates). There may even be a third case – beating the police forfeiture of the person’s motor vehicle.

Last week, a Sherburne County judge found in favor of our client on his Implied Consent case. This wiped our client’s driving record clean of any “alcohol-related” revocation and protected him from having to drive around with “whiskey plates.” We were able to win on this case without even getting into the merits of the blood test that my client took – and we did it by convincing the judge that the police unconstitutionally stopped my client.

The police pulled our client over because, supposedly, he made a wide turn. Specifically, the police claimed that our client started his turn in one lane of traffic, and finished his turn in another lane, and that this was a traffic violation worthy of being pulled over for.

Seems like a valid basis for a stop, right? Most people would think so, but then, most people would be WRONG. Besides the obvious fact that many people (including police) make these types of turns every day, a careful reading of Minnesota Statutes make it clear that such a turn ISN’T EVEN ILLEGAL!

That was an argument that Ramsay Law Firm lawyer, Dan Koewler, and I brought to the judge, and that was the argument that won the case. Because the court ruled that the stop was unconstitutional, numerous other issues we raised did not even need to be addressed (it only takes one winning argument to win an entire case).

This just goes to show that when you’ve got an experienced attorney dedicated to beating the entire DWI case, you can get results based on issues that other attorneys might not even consider. That’s why we at our law firm pride ourselves on carefully analyzing every case, to make sure that every possible opportunity to win our client’s case is fully litigated.

We regularly beat all types of DWI cases, on a variety of grounds. If you’ve been charged with a DWI or DUI as a result of a blood, breath or urine test, call Ramsay Law Office immediately.

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Hennepin County's Consolidate Hearing - Nothing Resolved

Chuck Ramsay — Fri, 11 Dec 2009 13:53:05 -0600

Hennepin County consolidated 102 DWI breath test cases. Today it held a hearing at which the attorneys, prosecutors and all 102 defendants were required to attend. The theory was that the prosecutors were going to offer deals to get the cases settled.

Someone forgot to tell the prosecutors.

Although some cases may eventually get resolved, it seemed few, if any cases, settled today. Instead, we learned:

· Prosecutors do not want to join the First Judicial District’s consolidated cases (They gave no explanation for their position).

· Prosecutors would not object to consolidation on a state wide basis, but have yet to file a motion to do so.

· Prosecutors have not looked into retaining an expert to analyze the source code, instead they will use the expert retained by the Attorney General on civil cases.

· Prosecutors do not want their expert to begin work until after the defense has concluded its work.

· Prosecutors believe it is best to set a “tracking date” to move things along.

· The Source Code Coalition requested consolidating Hennepin County cases with the First Judicial District. This would save judicial resources as well as the resources of its municipalities.

The next date was set for June 1, 2010.

Judge Abrams has done an excellent job coordinating the 700+ cases in the First Judicial District and has issued a strict scheduling order, with a trial date of May 10, 2010. Trial is expected to take three weeks.

Is it a coincidence that Hennepin County scheduled the next source code case immediately after the First Judicial District’s case?

In my opinion, the prosecutors from Hennepin County don’t want consolidation because they want two bites at the apple. If the prosecutors like the results from the First District, will they seek to use the results in Hennepin County. If they don’t like the results, then they have the right to their own hearing on the source code issue.

It would in the best interests of Minnesotan’s to move these cases along and stop wasting the tax payers’ money, particularly in these tough economic times. As I blogged previously, otherwise, CMI, the Intoxilyzer 5000 manufacturer, will be the sole winner here.

Hennepin County is the sole county in the Second Judicial District, which has the largest population in the state of Minnesota. It has the following cities:

Hennepin County also hears cases for Hassan Township and Fort Snelling.

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Source Code Update: Hennepin County Criminal Intoxilyzer 5000 DWI Source Code Hearing Friday

Chuck Ramsay — Thu, 10 Dec 2009 17:10:38 -0600

Hennepin County Judge Daly issued an email today regarding the approximately 90 criminal DWI Intoxilyzer Source Code. In the email addressed to the Source Code Coalition, judges of the Judges of the Fourth Judicial District and others, she wrote:

Good afternoon,

Tomorrow we will be conducting a hearing on the criminal source code cases. The hearing will be on the A Level of the Government Center, in the Jury Assembly Room, at 9:00 AM. I will be there along with Judges Wernick and Cahill. Judge Jerry Abrams of the First District will be attending the hearing.

Given that there are over 90 cases on that calendar we need to have some efficiencies. The hearing will be reported and so consideration will be given to the reporter as well. For those reasons we are asking that each “group” select a spokesperson. By “group” we mean the private defense group( MSCJ), the Meaney/Patrin group (if they wish to have a separate spokesperson), the PD (if they wish to speak separately from the MSCJ), the suburban prosecutors and the Minneapolis City Attorney.

We will be asking Judge Abrams to talk about what is happening in the First. We will then ask each group to state what they are requesting of the court going forward. Finally, ever hopeful, Judge Wernick and Cahill will be available to accept pleas should the parties wish to resolve their case. The defendants are required to appear at this hearing.

Please feel free to contact me with questions or concerns. See you all tomorrow.

Judge Daly

Given that CMI does not seem to be cooperating with the Source Code Coalition's efforts to examine the source code -- thus further delaying the review -- I hope prosecutors are in a mood to resolve these cases. To do so, I believe they should have the mindset that the Intoxilyzer 5000 test result will not be available to them in their case. Otherwise, the defendants will have no incentive to settle.

I'll update the blog after the hearing tomorrow.

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Minnesota's Four Degrees of DWI / DUI Charges

Chuck Ramsay — Thu, 10 Dec 2009 08:12:57 -0600

Minnesota has four severity levels of DWI / DUI charges in Minnesota. The level of your charge depends on the number of prior offenses and other enhancing factors.

FIRST DEGREE DWI

The most severe is a First Degree DWI. This can be charged only where the state of Minnesota has probable cause to believe the person drove, operated or was in physical control of a motor vehicle while either under the influence of alcohol, had an alcohol concentration of .08 or more, or refused to submit to alcohol testing AND had three prior DWI convictions or license revocations in the past 10 years. This is a felony level offense.

SECOND DEGREE DWI

The next most severe is a second degree DWI. The state can charge a second degree DWI only where it has probable cause to believe the person drove, operated or was in physical control of a motor vehicle while either under the influence of alcohol, had an alcohol concentration of .08 or more, or refused to submit to alcohol testing AND has two enhancing factors. Enhancing factors include prior DWI convictions or license revocations in the past 10 years; having a child under the age of 16 in the vehicle at the time; test refusal and having an alcohol concentration of .20 or more. This is a gross misdemeanor level offense. The maximum penalty is 1 year in jail and a $3,000 fine. It has a minimum penalty of 90 days confinement if the person has two prior DWI convictions or license revocations.

THIRD DEGREE DWI

The third most severe is a third degree DWI. The state can charge this only where it has probable cause to believe the person drove, operated or was in physical control of a motor vehicle while either under the influence of alcohol, had an alcohol concentration of .08 or more, or refused to submit to alcohol testing AND has one enhancing factor. This is also a gross misdemeanor level offense with the same maximum penalties as a Second Degree DWI. It has a minimum penalty of 30 days confinement if the person has one prior DWI conviction or license revocation.

FOURTH DEGREE DWI

Finally, the least severe is a fourth degree DWI. The state can charge this only where it has probable cause to believe the person drove, operated or was in physical control of a motor vehicle while either under the influence of alcohol, had an alcohol concentration of .08 or more. If a person twice the legal limit has a child in the vehicle or refuses to submit to an alcohol test, the state will charge them with a third degree DWI. This is a misdemeanor level offense. The maximum penalty is 90 days in jail and a $1,000 fine.

A WORD ABOUT OUR PHILOSOPHY:

While many lawyers merely negotiate the best resolution, the best result in a criminal case comes only with hard work by a skilled practitioner. A good lawyer looks for the way to beat the charges. For example, the stop of the vehicle may be unconstitutional; the officer may have violated the implied consent law or the alcohol test result may be flawed.

Contact my office immediately if you have been charged with a DWI for a free consultation.

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Urine Tests Should Not Be Used To Determine Alcohol Level for DWI or DUI

Chuck Ramsay — Thu, 03 Dec 2009 14:20:17 -0600

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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