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.
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.
