Sunday, December 25, 2016

Minneapolis DUI Lawyer Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case of the Week is Patten v. Commissioner of Public Safety (Decided December 19, 2016, Minnesota Court of Appeals, Unpublished) which stands for the proposition that it does not pay to be a blowhard!

In Patten, the Petitioner was arrested for DWI and after he was taken to the police station, he agreed to submit to a breath test.  The result of said breath test was .08.

The Petitioner challenged the revocation of his driver's license in court arguing that his substantive due-process rights were violated when he was required to provide a sample greater than that required by law and that additional breath volume increased his alcohol concentration to above the legal limit.  The district court sustained the revocation and on appeal  the Minnesota Court of Appeals affirmed the lower court.

The arresting officer testified in the district court that once a breath sample has begun, the DataMaster emits a solid tone while a subject is providing a breath sample. According to the officer, the solid tone emitted by the DataMaster stops when all of the machine's criteria have been satisfied and the DataMaster has accepted the subject's breath sample. The officer further explained that the following criteria must be satisfied in order for a breath test to be accepted by the DataMaster: (1) the subject must blow at a rate of at least three liters per minute; (2) the subject must provide 1.5 liters of air; and (3) the slope of the sample must level out; once the subject's blow-rate dips below three liters per minute, the test ends. The officer testified that if any of these criteria have not been satisfied, the DataMaster will not accept the breath sample.

The officer testified that once appellant started the test, he stood next to appellant and instructed him to "keep blowing, keep blowing, keep blowing." The officer stated that he continued these instructions throughout the test and that he stopped his instructions when the solid tone stopped. The officer further testified that appellant provided two samples, with the first sample registering a 0.091 alcohol concentration and the second sample registering a 0.087. 

On cross-examination, the arresting officer admitted that a screen on the DataMaster depicted appellant's breath sample profile while the test was being administered. The officer also admitted that throughout the test, appellant's breath volume and alcohol concentration were visible on this screen. Although the officer admitted that he instructed appellant to continue blowing for about 20 seconds, the graphs depicted on the DataMaster showed that appellant had met the minimum volume requirement for a valid breath test within five seconds, and that "at the [five] second mark, [appellant] was . . . well below a 0.08." But the officer stated that if he had told appellant "to stop blowing while the tone was solid," the DataMaster would have rejected the test result as "invalid." 

On appeal, the Minnesota Court of Appeals first notes that they rejected this argument 20 years ago in Brooks v. Commissioner of Public Safety and in State v. Rader.  In those cases the Court held that there was no due process violation as there was no evidence that the police officer, "manipulated the test or that he purposefully treated [the defendant] differently than he treated others".

In this case Patten argued to the Court of Appeals that Brooks and Radar are distinguishable because the previous cases involved the use of the Intoxilyzer 5000 whereas this case involved the use of a Data Master Breath machine.  Patten claimed that the difference between machines is significant because, unlike the Intoxilyzer 5000, the DataMaster "allows the officer to watch in real time as a breath sample is introduced into the machine and see how much alcohol is in the sample." 

Patten contends that because the officer was using the DataMaster, he "could see as [appellant's] alcohol concentration climbed toward the 'magic number' that would be the difference between a crime and not a crime," and that "[i]n the face of that information coming to him in real time, the officer had the choice of telling [appellant] when he had complied with the legal requirement and could stop blowing, or telling him to keep blowing well beyond that point." Thus, Patten argues that unlike in Brooks and Rader, the arresting officer provided the court with evidence that he "can and did manipulate the test by having [appellant] provide more than four times the required breath volume, and evidence that the manipulation actually made a difference in the outcome of the test where it is clear that [appellant's] level didn't cross the legal limit until late in the test."

But the Minnesota Court of Appeals rejected Patten's argument stating: 
"We acknowledge that there may be some merit to appellant's claim that an increase in breath volume could cause the alcohol concentration to increase. But, as the district court found, appellant failed to provide any scientific evidence beyond speculation that a quantity of breath volume greater than the minimum adequate sample inaccurately reflects the actual alcohol concentration in the subject's body. Moreover, although the officer admitted that appellant's breath volume and alcohol concentration were visible on the DataMaster screen, he also testified that he was not watching the screen while the test was in progress, nor was he calculating appellant's breath volume per second while the test was being administered. Instead, the officer testified that he performed the breath tests consistent with his training, that the DataMaster informs the driver when to blow and when to stop blowing, and that if the test is not performed consistent with the specifications of the DataMaster, the machine gives "an invalid result." Appellant provided no evidence that the manner in which the test was administered to him was manipulated or any different than the manner in which the test was administered to others. Therefore, appellant has failed to establish that his substantive due-process rights were violated."

Moral Of The Story: When the tone stops, stop blowing!

If you or a loved one have been arrested for a Minnesota DWI, feel free to contact Minneapolis DUI Lawyer, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

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