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In a new unpublished Minnesota DUI case, the court has ruled that the defendant's requests for an independent test were not good enough and that she didn't make enough of an effort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.
