Minnesota DUI breath testing on the ropes
It appears that Minnesota may be ground zero in the battle for the release of the source code that powers Intoxilyzer breath test devices.
Intoxilyzer, which is a brand of CMI, Inc., is the most widely used type of breath testing device in the country.
The Minnesota Supreme Court issued an opinion on the matter.
In a nutshell, if you can come up with a reason why the source code might help your case, then, in MN DUI cases, you get it. If you can't think of a reason why you need it, then you don't get it.
The problem with this logic is that there may be a legitimate need for the discovery, which a DUI defendant can't discover until they actually have the source code.
Minnesota DUI Lawyer Charles Ramsay, although not a lawyer named in this case, has been instrumental in the fight to obtain the code in Minnesota.
Minnesota DWI presumption of innocence
Here's a novel idea. Let's give people accused of the serious crime of DWI the presumption of innocence.
Bill would presume innocence in drunk driving cases | Park Rapids Enterprise | Park Rapids, Minnesota: "If you are arrested for DWI in Minnesota, your license can be suspended or revoked within days of your arrest, even before you go to court on the actual criminal charges. This civil proceeding, the license revocation, is a separate matter, resulting in a maximum suspension of 90 days if your blood-alcohol content exceeds .08 percent.
The intent is to crack down on drunken drivers immediately and get them off the state’s highways.
A bill currently working its way through the Minnesota House of Representatives seeks to restore due process and a presumption of innocence to drivers arrested on suspicion of drunk driving. It would mandate a conviction on the criminal charges before the driver could lose his or her license. Currently, that process typically begins within seven days of the initial arrest.
The House bill, with a companion Senate bill, stands little chance of passing, opponents and political observers say. County attorneys throughout the state have organized a letter-writing campaign to their legislators. Hubbard County Attorney Don Dearstyne sent out several communications, imploring legislators not to take what he calls a drastic step backward in DWI prosecution."
Like the article says, the bill has little chance of passing. But what an idea. Presume somebody who might actually be innocent is innocent unless proven guilty. In America. Come on, pigs don't fly. Or do they?
Minnesota DUI for bus driver on the job
Here's a story about the bus driver in the Minneapolis area who got arrested for a Minnesota DUI. Since driving a bus in Minnesota requires a commercial driver's license, it shouldn't matter whether the person is "on duty" or "off duty" when the DUI occurs. You see, ANY DUI results in a one-year revocation of a commercial driver's license (CDL). A second DUI in a lifetime results in a "lifetime" revocation of the CDL, although there are certain ways around the "lifetime" revocation being forever.
Here's the story:
Off-duty DWI not always end of bus job: "Metro Transit said the DWI arrest last month of a driver in his bus was a first in its history and quickly fired him for 'gross misconduct.'
Yet it's not nearly so rare that Metro Transit drivers are arrested for off-duty drunken driving. Nor does it automatically mean the end of their bus-driving careers.
Since July 2006, 14 off-duty drivers have been charged with DWI, said Bob Gibbons, Metro Transit customer services director. Of those, nine lost their jobs after the state suspended their driver's licenses. Three others were transferred to non-driving jobs within the agency. Two drivers were able to get their licenses reinstated within about 30 days and quickly took the wheel of a bus once again.
Metro Transit puts the burden on drivers to maintain valid commercial driver's licenses and pass regular drug and alcohol tests, rather than taking disciplinary action for any traffic violation. But the March 21 arrest of Alonzo V. Martin in his Route 5 bus has jolted the transit agency into reevaluating its hiring and alcohol-testing practices, including whether it should look back further than three years for traffic violations and DWIs before hiring a driver.
The agency is also planning to get 'more involved, more engaged' when drivers commit traffic violations in their buses, Gibbons said.
'A bus operator arrested while in service has not happened in our history,' he said. 'It's clearly a major safety violation.'
But Michelle Sommers, president of the Amalgamated Transit Union Local 1005, said federal laws already dictate extensive policies of alcohol and drug testing and tougher penalties for traffic violations by commercial drivers. A recent change in federal rules mandates a one-year suspension of a commercial driver's license for a DWI conviction, so she expects few bus drivers in the future will be able to keep their jobs if convicted of drunken driving."
A DUI arrest for a person with a CDL is typically career ending. In this economy there is virtually no chance of keeping a CDL required job in the near future if you get a DUI of any type today.
Minnesota DUI law does not govern licensing in other states. For that reason, a non-Minnesota licensed driver who gets a DUI while passing through MN will probably lose their CDL in their home state if their home state finds out.
Minnesota DWI ignition interlock devices
Here is an interesting article about ignition interlock devices in Minnesota DUI cases.
DWI device can prevent motorists from driving drunk | Duluth News Tribune | Duluth, Minnesota: "A Twin Cities area defense attorney/businessman was in Duluth Friday to show how a potentially deadly weapon can be taken out of the hands of the intoxicated.
Attorney Edward Cohen Jr., vice president of Smart Start MN of Golden Valley, demonstrated his company’s ‘vehicle ignition interlock’ to a group of corrections officials, a representative of Mothers Against Drunk Driving and others who work with convicted drunken drivers.
The breath-testing device prevents a car from starting if it registers above a pre-set alcohol level when the driver blows and hums into a sensing unit. The technology has become more sophisticated and harder to beat than other ignition locks. It includes a camera to make sure the person who is required to use it is the person blowing into it, and not a sober buddy recruited to try to beat the system.
The device also requires a driver to do ‘rolling tests’’ at random intervals to make sure the driver doesn’t start drinking after getting the car started. The unit will record a violation if alcohol is detected or if the driver doesn’t perform the rolling test.
‘When you’re working in any type of corrections or with people in recovery, the more tools you have in the tool box the better chance you have to help people be successful,’’ said Dennis Cummings, director of the Duluth Bethel Center, which provides chemical dependency services."
Many DUI defense lawyers rant and rail against ignition interlock devices as being invasive and reactionary. However, I have personally seen repeat offenses where the person got a first DUI, and then didn't get an interlock device, and then got another DUI shortly thereafter. I have actually had clients tell me they wished that they had been required to install one on their vehicle after their first DUI conviction, as it would have prevented their second. Now, Arizona DUI law mandates that everybody convicted of a DUI get one for a year. I have seen people get second offense DUI arrests literally days after fulfilling their ignition interlock requirement and having the device removed.
Ignition interlock devices are bad for business if you are a DUI defense lawyer, unless or course, you also happen to own an interlock company. But I don't disagree with MADD on this one. The fact is, ignition interlock devices prevent people from easily getting DUIs, and probably save lives.
Minnesota DUI Intoxilyzer source code case: This ought to make you angry
On March 31, 2009 the Court of Appeals of Minnesota issued an "unpublished" opinion about a Minnesota DUI case involving the much sought after source code for the Intoxilyzer breath test machine. Astonishingly, the Court reversed the lower court's order compelling the disclosure of the source code under threat of suppression of the breath test results.
THIS IS A TERRIBLE OPINION AND SHOULD SHOCK YOU UNLESS YOU ARE USED TO "INJUSTICE AS USUAL"Quick fact summary by the Minnesota Court of Appeals:
The district court granted respondent’s request for discovery of the source code, finding it “relevant and necessary for [respondent’s] defense.” The district court specifically ordered the state to “provide the full source code to [respondent] within 30 days of the filing of this order,” and stated that “[i]f the source code is not produced within 30 days of the filing of this order, the Intoxilyzer test result shall be suppressed.”
Here is the (pardon my judicial criticism) but stupid logic that is used by the court, and is used in many cases to justify admission of unreliable evidence in DWI prosecutions:
The state argues that the district court’s discovery order has a critical impact on its case because if the Intoxilyzer results are suppressed, the state will be unable to prosecute respondent for second-degree DWI over .08 alcohol concentration. We agree. While the state may still prosecute respondent on the DWI charge based on the officers’ observations, this court has held that a critical impact is shown when evidence essential to prove some, but not all, criminal counts is suppressed. See State v. Grohoski, 390 N.W.2d 348, 352 (Minn. App. 1986) (holding that the critical-impact test is met when, without the chemical-test evidence, four of six charges would be dismissed), review denied (Minn. Aug. 27, 1986). Suppression of the Intoxilyzer result in this case, as required by the district court’s discovery order, has a critical impact on the state’s ability to prosecute respondent.
So essentially, their legal reasoning is that they can't compel the source code because they know that the company that makes the Intoxilyzer, CMI, will not give the code up. Therefore, even though the breath test evidence might be unreliable, they are going to allow the state and CMI to get away with it because to do otherwise hurts the state's case!
If you care about justice and this doesn't make you angry, check your pulse. Did these judges actually go to law school?
It gets better:
The state argues that respondent has not demonstrated that the source code has any specific relevance to his guilt or innocence. Specifically, the state contends respondent has not presented evidence raising a question as to the accuracy of the test in his case and has not shown that the Intoxilyzer malfunctioned or that the result was unreliable as to him. The state further argues that “[r]espondent failed to explain to the District Court how the source code could demonstrate some flaw in the software of the instrument or its operation.” (emphasis added)
So this court wants the defense to produce evidence that there is something wrong with the code from the machine in order to compel disclosure of the code. How could they possibly show there was something wrong with it without having a chance to examine it?
With the judicial clarity that this ruling shows on the part of these judges, perhaps they would rule that a psychic's assessment that the test was incorrect would suffice? What the heck are they looking for?
Here's the take home message. If you are accused of DUI in Minnesota, your battle is uphill, with the wind blowing in your face and little monkeys in black robes trying to steal your clothes and pickpocket you as you try to move forward.
Learn more about Minnesota DWI law, and find a Minnesota DWI lawyer.
Minnesota DUI Law: New Intoxilyzer Case
The Minnesota Court of Appeals released a new Minnesota DUI Law case on February 17, 2008.
The opinion chronicles some of the fight to force the maker of the Intoxilyzer machines to disclose the source code that powers the machine to the defense.
The case, which was a loser from a Minnesota DUI Lawyer's perspective, is pretty typical of what is going on around the country with this type of litigation.
We will continue to monitor developments in this case.
For local information, see Minnesota DUI Lawyers.
DUI and beyond a reasonable doubt
In a new Minnesota DUI opinion issued on February 10, 2009, the Minnesota Court of Appeals reversed the trial judge's entry of a judgment of acquittal following a jury verdict of guilty.
The trial judge, I believe, correctly, saw that Standardized Field Sobriety testing is flawed. Because the officer in this case testified that under the NHTSA standards for applying and interpreting the field tests there is a 9% chance that the person is not above the legal limit, the trial judge, I believe correctly, reasoned that based on the field tests, there was reasonable doubt.
Looked at objectively, it stands to reason that if there is a 9 percent chance of innocence there is of course reasonable doubt.
The Minnesota Court of appeals didn't see it that way. They explain in the opinion that, under Minnesota DUI law, there is no mathematical or statistical standard for reasonable doubt. Theoretically, the testimony could be that there is a 50/50 chance of the test getting it right and, if a jury convicted, the conviction would stand.
One thing I can say for sure is that we want trial judges like the one in this case making these types of tough decisions. The judge had to know that it would be a politically unpopular decision, and that he or she was likely to be reversed on appeal. I admire the fact that the Judge did it anyways.
Minnesota DUI independent test request case
In a new unpublished Minnesota DUI case, the court has ruled that the defendant's requests for an independent test were not good enough and that she didn't make enough of an effort for them to intervene and save her from the DWI charge.
The case is Minnesota v. Talbor, decided by the Court of Appeals of Minnesota on January 6, 2009.
The facts of this case from the Minnesota DUI opinion:
Appellant Muriel Matuzak was arrested for driving while impaired after she failed several field sobriety tests including a preliminary breath test (PBT) that showed an alcohol concentration of .174. When Matuzak saw the PBT results, she asked the arresting officer if she could take a blood test. The officer did not respond to the request. The officer read the implied-consent advisory to Matuzak, and she was transported to the jail. She had access to her cellular telephone during the trip to the jail and used it to send a text message to a friend stating that she would not be at work. Matuzak declined to speak with an attorney and consented to a breath test. Matuzak did not make any further inquiry about a blood test or any other additional alcohol concentration test, and she did not ask to make any telephone calls.
Matuzak was charged with DWI. She moved to suppress the results of the Intoxilyzer test, arguing that she had been prevented from obtaining a second test by the offi-cer's silence in response to her scene of the stop inquiry about a blood test. Af-ter a hearing on the motion, the district court concluded that because there were no "active attempts by law enforcement to prevent or deny a separate test," the In-toxilyzer test results were admissible. Matuzak submitted the case to the district court on stipulated facts as authorized by State v. Lothenbach, 296 N.W.2d 854 (Minn.1980) (superseded by Minn. R.Crim. P. 26.01 subd. 4, effective April 1, 2007). The district court found Matuzak guilty of DWI in the second degree. Matuzak was sentenced, but the sentence was stayed pending this appeal.
Minnesota DUI Law Regarding Independent Tests
Minnesota law provides that after a person submits to the state's alcohol-concentration test, the person has a right to have an additional test at the per-son's own expense. Minn.Stat. § 169A.51, subd. 7(b) (2006). "The failure or inabil-ity to obtain an additional test ... does not preclude the admission in evidence of the test taken at the direction of a peace officer unless the additional test was prevented or denied by the peace officer." Id.
The holding in this case:
Matuzak argues that her situation is analogous to Theel's. We disagree. Theel made an active attempt to obtain a second test after he took the Intoxilyzer test, and he was denied the right to call an attorney to assist in arranging the test. In contrast, Matuzak declined to speak with an attorney before the Intoxilzyer test, did not request a second test after the Intoxilyzer test, and did not ask to speak to anyone about a second test. Matuzak failed to make clear her intent to have a second test administered, and law enforcement did nothing to prevent or deny additional testing.
Practical tip for people facing a DUI (my comments, not from the opinion):
When you face a DUI investigation, you need to be very proactive about your rights. You need to insist on an independent test if you want one. You need to insist on talking with a lawyer if you want one. You should always be polite, but don't mumble requests and make sure that your desires are made clear. A wishy-washy request for an attorney or an independent test is just as good as no request at all.
Minnesota DUI Case: refusal suspension upheld
In a Minnesota DUI case, the Court of Appeals affirmed the implied consent license revocation of a person who did not provide an adequate breath sample. The officer deemed it a refusal when the Intoxilyzer timed out, and that was it.
The Cite: Londo v. Commissioner of Public Safety, Court of Appeals of Minnesota, Decided December 9, 2008 (currently designated as unpublished).
The relevant facts from the opinion:
After four attempts to get appellant to blow into the Intoxilyzer, the device timed out without an adequate breath sample. Deputy Sturm, who was present during the Intoxilyzer test, informed appellant that because she did not blow into the machine, she was deemed to have refused the test. Appellant was then taken to booking. After a couple of minutes, Deputy Sturm initiated the revocation of appellant's driver's license and again told appellant that she was being deemed to have refused the breath test.
The holding that shows that in civil DUI license proceedings, there is a very low level of protection of drivers’ rights:
Appellant also argues that due process requires Deputy Sturm to have given her a chance to cure her refusal. In support of her assertion, appellant directs this court to State v. Netland, 742 N.W.2d 207 (Minn.App.2007), review granted (Minn. Feb. 27, 2008). In Netland, we held that in the criminal context, due process requires a testing officer to provide an alternative method of chemical testing where a driver is deemed to refuse a chemical test because of an inadequate breath sample but seeks additional time to provide an adequate sample and an alternate mode of chemical testing. Id. at 223.
The district court found Netland similarly unavailing to appellant's argument. We agree with the district court. Appellant's license revocation is a civil matter, whereas Netland was a criminal case. As we stated in Netland, "[t]he minimum level of fairness that our system of law requires to deprive a driver of driving privileges is not the same as that required to impose a criminal sanction." Id. at 219. We have previously held that "[i]n the civil implied-consent context, '[i]f a person fails to provide an adequate breath sample, the officer, absent a determination of physical inability, is not required to offer the driver an additional test.' " Id. (citing Smith v. Comm'r of Pub. Safety, 401 N.W.2d 414, 416 (Minn.App.1987), review denied (Minn. Apr. 29, 1987)). Therefore, Deputy Sturm was not required to provide appellant with an alternative test after appellant was deemed to have refused the breath test.
My rant… er, comments: From a defendant’s perspective, prepared to get *&$#@ed at the DMV. Because the civil standard provides so little Constitutional protection, as long as the administrative law judge crafts the findings of fact to support their conclusion, there is often little even a very skilled DUI lawyer can do to stave off the refusal suspension.
PBT given by jail employee is constitutional
This DUI hits just keep on coming. Here is a gem out of the Court of Appeals of Minnesota.
In most states the Preliminary Breath Test (PBT) is considered junk science and can’t be used against a DUI defendant. Minnesota decided that not only is it admissible, but that it can be administered by non-law-enforcement jail personnel, and then used to satisfy Admin Per Se in a license suspension action. Not to let this prosecution of what sounds like a nasty DUI related assault go down the systems drain in the interest of protecting the Constitution, the court then held that a two-minute opportunity to contact an attorney is sufficient to avoid a right to counsel violation.
The Cite: Mell v. Commissioner of Public Safety, Court of Appeals of Minnesota, Opinion issued November 25, 2008.
A PBT can be administered by a non-officer jail employee, and then used to satisfy Admin Per Se:
We reject the claim that the administration of the PBT by the jailer was improper simply because it was not done incident to Minn.Stat. § 169A.41. That statute does not limit use of the PBT to traffic stops.
We conclude that Chisago County's legitimate interests in operating its jail safely outweighed appellant's claim of privacy, that the administration of the PBT was justified by legitimate government interests in operating the jail, and that the administration of the PBT did not violate either the federal or state constitutions.
In this case, Officer Puelston personally detected the odor of alcohol on appellant and observed that appellant had been driving. Later in the evening, he learned that appellant took a PBT and had an alcohol concentration of more than 0.08. With this information, Officer Puelston had probable cause to believe that appellant was violating Minn.Stat. § 169A.20 and the authority to read appellant the implied-consent advisory.
A two-minute window of opportunity what a phone and phone directory in the middle of the night was sufficient access to counsel:
We recognize that appellant's arrest and his implied-consent decision were made late at night and that Deputy Puelston decided that he had vindicated appellant's right to counsel after only a few minutes. Nonetheless, based on the totality of the circumstances, we conclude the record adequately supports the district court's finding that Deputy Puelston vindicated appellant's right to counsel by providing a telephone, directory, and time to make contact with an attorney and the finding that appellant ended any good-faith effort to contact an attorney by the time he was asked whether he would take the test. Consequently, we conclude that appellant's right to counsel was not violated.
My Comments: Allowing a non-commissioned jail employee to collect this type of evidence creates an excellent opportunity for those to whom DUI defense attorneys refer as “cop wannabes,” to “play one on TV.” This is a slippery slope, and very slippery at that, when it starts with allowing the application and use of junk science like a PTB.
This opinion is published and is now apparently the law of the land in Minnesota, so I have to believe that the Court of Appeals gave the issue ample thought.
On the other hand, with the right to counsel issues, other states have created a reasonable per se time frame for a DWI suspect to contact an attorney. Two minutes is the shortest I have seen, but since they used to trusty old “totality of the circumstances” rational, this part of the opinion appears to apply on a case-by-case basis and leaves open the possibility that in another Minnesota DUI case a two-minute window could be held unconstitutional.
