Minnesota DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is Palke v. Commissioner of Public Safety (Decided January 27, 2020, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the Courts are not going to allow any expert to impugn the general reliability of a Data Master breath test with evidence of margin of error, uncertainty of measurement or machine bias.

In Palke, the Petitioner was arrested for DWI and tested at 16% breath alcohol concentration level.  Mr. Palke filed a challenge to the license revocation and sought to introduce expert testimony concerning the reliability and accuracy of his breath test results.

The Commissioner of Public Safety moved to exclude the expert testimony and the District Court granted the motion.  On Appeal, the Minnesota Court of Appeals affirmed the District Court, noting:

"In May 2018, Palke notified the commissioner that he intended to offer the testimony of a “BCA Breath Testing Expert” concerning the reliability and accuracy of his breath-test result in light of “the uncertainty of measurement values that apply to . . . breath test results, the metrological traceability of these test results, and the ultimate accuracy of the results.” *** "Thereafter Palke filed a memorandum of law  ... arguing that the expert witness’s testimony would be relevant to the reliability of the DataMaster instrument and the “interpretation, accuracy, and probative value of this particular set of tests.”

The Minnesota Court of Appeals then explained its decision, stating:

"“[T]he results of a breath test” are, as a matter of law, “admissible in evidence without antecedent expert testimony that an infrared or other approved breath-testing instrument provides a trustworthy and reliable measure of the alcohol in the breath,” so long as the breath test was “performed by a person who has been fully trained in the use of an infrared or other approved breath-testing instrument . . . pursuant to training given or approved by the commissioner of public safety or the commissioner’s acting agent.” Minn. Stat. § 634.16 (2018). If the requirements of section 634.16 are satisfied, the results of a breath test “are admissible into evidence without antecedent expert testimony establishing that the instrument provides a trustworthy and reliable measure of alcohol concentration.” In re Source Code Evidentiary Hearings in Implied Consent Matters, 816 N.W.2d 525, 528 n.3 (Minn. 2012); State v. Norgaard, 899 N.W.2d 205, 207-08 (Minn. App. 2017). In addition, if the requirements of section 634.16 are satisfied, the results of a breath test are “presumed trustworthy and reliable.” In re Commissioner of Pub. Safety, 735 N.W.2d 706, 711 (Minn. 2007). “But section 634.16’s presumption of reliability may be challenged in a proceeding under section 169A.53, subdivision 3(b)(10), which specifically permits a driver to challenge the reliability and accuracy of his or her test results.” Id.; see also State v. Underdahl, 767 N.W.2d 677, 685 n.4 (Minn. 2009)."

***

"If a party seeks to introduce expert evidence at an implied-consent hearing, the district court may admit the evidence if the expert’s specialized knowledge will help the factfinder “understand the evidence or to determine a fact in issue.” Minn. R. Evid. 702; see also Hayes, 773 N.W.2d at 136. “The basic consideration in admitting expert testimony under Rule 702 is the helpfulness test—that is, whether the testimony will assist the [factfinder] in resolving factual questions presented.” State v. Grecinger, 569 N.W.2d 189, 195 (Minn. 1997)."

***

"Palke acknowledges that the district court excluded his proffered expert evidence on the ground that it would not be helpful to the factfinder. Palke contends, however, that “the expert testimony would have been helpful to the district court judge, as the testimony would have explained the difference between bias, uncertainty of measurement, and margin of error,” which Palke asserts are “distinct and separate issues,”  and that “the expert testimony would show how bias specifically affected the test results at the .16 level.”

"In response, the commissioner argues primarily that Palke’s expert evidence is “insufficient as a matter of law,” and thus irrelevant, on the ground that the commissioner “is not required to prove an alcohol concentration within some alleged margin of potential error.”  The commissioner also argues that the district court correctly analyzed the helpfulness of Palke’s expert evidence on the ground that Palke’s proffer related merely to “the general concept of bias and how it could or might affect a test result” but did not include “anything specific to this test or this instrument.”

***

"The district court’s ruling on the admissibility of Palke’s expert evidence appropriately considered the general nature of Palke’s proffer. The district court reasoned that Palke had “failed to proffer sufficient information regarding the expert testimony beyond his allegation that the administration of [his] test was biased and that there is a chance [he] was below the legal threshold of 0.16.” The district court further reasoned that “[t]he limited information proffered . . . would not be helpful to the court."

"The district court’s reasoning is supported by the record. Palke’s proffer was general in nature and somewhat speculative about the testimony that the expert witness would give. There is no indication that the expert testimony would have helped the district court resolve the disputed factual issues in this particular case, such as whether Palke’s test results “were . . . accurately evaluated,” see Minn. Stat. § 169A.53, subd. 3(b)(10), or whether Palke’s alcohol concentration actually was 0.16 or more,  see Minn. Stat. § 169A.52, subd. 4(a), 4(a)(1). Palke argues on appeal that the expert witness would have testified about the probability that his “true alcohol concentration” was less than 0.16, but he does not state that probability, and there is no such information in any version of the proffer that he presented to the district court."

Moral Of The Story:  When it comes to horseshoes, hand grenades and license revocations, close is good enough.

If you or a loved one have been arrested for a Minnesota DWI, or are facing a DWI forfeiture of your motor vehicle, feel free to contact Minnesota DWI Attorney, F. T. Sessoms at (612) 344-1505 for answers to all of your Minnesota DWI questions.

Minneapolis DWI Attorney F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is Olson v. Commissioner of Public Safety (Decided October 21, 2019, Minnesota Court of Appeals, Unpublished) which, once again, stands for the proposition that if the Data Master Breath Testing machine prints a breath test result at or above the legal limit, the uncertainty of measurement inherent in said machine is not "relevant".

In Olson, the Petitioner was arrested for a Minnesota DWI and he tested at .16% BAC on the Data Master Breath testing machine.  Mr. Olson filed a challenge to the revocation of his license and notified the Commissioner of Public Safety that he intended to offer the testimony of a “breath testing expert” from the Bureau of Criminal Apprehension, who would “testify regarding the foundational reliability of the breath test result” and “the uncertainty of measurement values that apply to these breath test results.” The next day, the commissioner filed a motion in limine to exclude Olson’s evidence concerning uncertainty of measurement on the ground that the evidence is irrelevant.

The district court subsequently filed an order in which it granted the commissioner’s motion in limine and sustained the revocation of Olson’s driver’s license. The district court focused on the admissibility of Olson’s evidence concerning uncertainty of measurement. The district court stated that the terms “margin of error” and “uncertainty of measurement” describe the same concept and noted, “While a petitioner may challenge the actual administration of a breath test, a petitioner may not challenge the general reliability of the breath test, whether via margin of error, uncertainty of measurement, or another similar statistical method.”

On appeal, the Court of Appeals affirmed the district court noting:

"Evidence consisting of “the results of a breath test” is, as a matter of law, “admissible in evidence without antecedent expert testimony that an infrared or other approved breath-testing instrument provides a trustworthy and reliable measure of the alcohol in the breath,” so long as the breath test was “performed by a person who has been fully trained in the use of an infrared or other approved breath-testing instrument . . . pursuant to training given or approved by the commissioner of public safety or the commissioner’s acting agent.” Minn. Stat. § 634.16 (2018); see also In re Source Code, 816 N.W.2d at 528 n.3; State v. Norgaard, 899 N.W.2d 205, 207-08 (Minn App. 2017); State v. Ards, 816 N.W.2d 679, 685 (Minn. App. 2012). “But section 634.16’s presumption of reliability may be challenged in a proceeding under section 169A.53, subdivision 3(b)(10), which specifically permits a driver to challenge the reliability and accuracy of his or her test results.” In re Commissioner of Pub. Safety, 735 N.W.2d 706, 711 (Minn. 2007); see also State v. Underdahl, 767 N.W.2d 677, 685 n.4 (Minn. 2009)."

***

Olson "sought to prove that the breath-test results were not accurately evaluated on the ground that the DataMaster instrument’s measurements of the alcohol content of his breath samples was subject to a degree of uncertainty. Olson contends that his proffered evidence was relevant because it would have shed light on the 'actual true range' of the alcohol concentration of his breath samples."

The Court of Appeals rejected the proffered evidence as not "relevant" as there are a long line of cases which state that  “Minn. Stat. § 169.123 (1982), does not require the Commissioner of Public Safety to prove an alcohol concentration of. 10 within an alleged margin for potential error.” Grund, 359 N.W.2d at 653. A later opinion explained the rationale for that statement:

Under Minn. Stat. § 169.123, subd. 4 (1982), the Commissioner must revoke a person’s license when “the test results indicate an alcohol concentration of. 10 or more.” The statute clearly requires a concentration of. 10—not. 10 plus or minus an error factor. And, Minn. Stat. § 169.123, subd. 6(3) (1982), expressly limits the issue to be raised at a hearing to whether “the test results indicate an alcohol concentration of .10 or more at the time of testing,” not whether or not the reading was . 10, coupled with some margin of error."

***

"In light of the above-described caselaw, as well as the fact that both of the Datamaster’s two measurements exceed the legal threshold, the district court did not abuse its discretion by reasoning that Olson’s proffered evidence was not relevant to the issue to be decided at the implied-consent hearing."

Moral Of The Story:  When it comes to breath testing, close enough is good enough.

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

Minnesota DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is State v. Brazil, (Decided December 26, 2017, Minnesota Court of Appeals, Published) which stands for the proposition that the "uncertainty of measurement" of the Data Master Breath testing machine is not a sufficient basis to reverse a criminal conviction for Third Degree DWI even where the reported test result is a .16.  This is a very bad case for the defense.

In Brazil, the Defendant consented to a breath test, and the DMT device measured and reported appellant's alcohol concentration as 0.16. The Defendant was charged with two counts of third-degree DWI with reference to the aggravating factor of an alcohol concentration of 0.16. The Defendant waived his right to a jury trial, and admitted under oath that he drank enough alcohol to affect his ability to safely drive a motor vehicle before he drove and crashed his car into a parked car. He also admitted that his alcohol concentration was 0.08 or more as measured within two hours of driving. The Defendant denied that his alcohol concentration was 0.16 or more, an element necessary to the gross-misdemeanor charges.

The state presented testimony from Karin Kierzek, a forensic scientist with the Minnesota Bureau of Criminal Apprehension (BCA). Kierzek testified that every DMT device in use in Minnesota comes to the BCA's lab annually for maintenance checks, calibration, and certification. All machines must provide results within the acceptable 0.003 or 3% margin of error in order to pass calibration. Kierzek also testified that DMT devices have a number of internal and external checks to ensure accuracy. These checks begin with having a trained operator administer the test. The operator observes the subject for at least 15 minutes to verify that the subject is not introducing mouth alcohol by burping, belching, or regurgitating. The DMT device tests itself by running a diagnostic test, which includes using air blanks to clear the sample chamber and ensure that there is no residual alcohol or measurable alcohol in the air surrounding the machine. The subject then provides two breath samples a minimum of three minutes apart to safeguard against measuring mouth alcohol, and a control sample runs between the two breath samples to determine if the instrument is working properly when it evaluates a known alcohol concentration. If the two breath samples from the subject are not comparable, the test results are deemed insufficiently reliable and retesting is suggested.

The DMT results showed that the DMT device used to test appellant's alcohol concentration went through the full sequence of checks and passed all of them. There is no indication of irregularity or malfunction. The air blanks produced readings of zero, meaning that the sample chamber was clear of alcohol. Appellant's first breath sample revealed an alcohol concentration of 0.164. The machine ran another air blank and a control sample with a target of 0.078, which produced a result of 0.077. Kierzek testified that the control sample reading was only 0.001 different than the known sample, which variance she testified was insignificant and meant that the machine was measuring alcohol accurately within tolerable limits. After the control-sample test, the machine ran another air blank, which again tested zero, and then appellant provided a second breath sample, which resulted in an alcohol concentration measurement of 0.175. One final air blank was run to clear the sample chamber and check the room air for any measurable alcohol. It also tested zero. Kierzek testified that appellant's final alcohol concentration was determined by taking the lower of the two reported sample results, 0.164, and dropping the third digit to reach a reported value of 0.16. This method of reporting "give[s] the most benefit to the subject," according to Kierzek's testimony. Based on her review, Kierzek opined that appellant's breath-test results were accurate.

Kierzek also testified that "[t]here is no perfect measurement" and no measurement can ever be absolutely accurate. She testified that there is an uncertainty-of-measurement range within which the tester could have confidence that a high percentage of results would fall. Factors that contribute to the uncertainty of measurement include the area in which the tests are performed, the instructions given by an operator, whether the subject is wearing cologne, and whether the subject has certain medical conditions. She testified that the uncertainty-of-measurement value "merely gives you a range of what you would expect to see given repeated samplings." For appellant's test in particular, Kierzek testified that, at the 99% confidence interval, the expected range of test results would be 0.1504 to 0.1886. The average from appellant's two breath-test results was 0.1695, and Kierzek testified that this is the "most likely result," and that repeated test results "would be symmetric around that point." She also agreed that, had appellant's breath been tested a third time, it could have fallen anywhere within the confidence interval that she identified, from 0.1504 to 0.1886, and agreed that a third test falling anywhere within that range is "a distinct possibility" that is not arbitrary or capricious. Appellant's counsel asked Kierzek whether she could "say that if [appellant's breath] was measured a third time . . . [the result] would be a .18 or if it would be a .15 ... [w]ithout speculating," to which Kierzek responded no.

The District Court found the Defendant guilty of Third Degree DWI i.e. having an alcohol concentration level of .16 or more and on appeal, the Appellant argued that the evidence was not sufficient, because the uncertainty-of-measurement range includes values below 0.16, meaning that some tests of appellant's breath—if enough were done—would be expected to fall below 0.16.

The problem with the Appellant's argument is that once a person has been convicted, the Appellate Court will invoke the rules designed to affirm the factual findings of the District Court. Or, as stated by the Minnesota Court of Appeals in this case:

"In considering the sufficiency of the evidence supporting a conviction, we thoroughly analyze the record "to determine whether the evidence, when viewed in a light most favorable to the conviction, was sufficient to permit the [factfinder] to reach the verdict which [it] did."

"We must assume that the factfinder 'believed the state's witnesses and disbelieved any evidence to the contrary.' State v. Moore, 438 N.W.2d 101, 108 (Minn. 1989). 'We will not disturb the verdict if the [factfinder], acting with due regard for the presumption of innocence and for the necessity of overcoming it by proof beyond a reasonable doubt, could reasonably conclude that" the defendant was guilty of the charged offense. Bernhardt v. State, 684 N.W.2d 465, 476-77 (Minn. 2004). We have referred to this as the "traditional standard of review.'

"The record contains no measurement of appellant's alcohol concentration lower than 0.16. While appellant argues that the state is required to prove his alcohol concentration within the uncertainty-of-measurement range, our case law has consistently rejected this argument when framed in terms of margin of error." ***

"While these earlier decisions were made in the context of implied-consent cases, they hold that the proponent of a breath test need not prove the measurement to have been absolutely and precisely correct. The proponent must show that 'the necessary steps have been taken to ensure reliability," and after that 'it is incumbent on the driver to suggest a reason why the [breath] test was untrustworthy'".

"The district court accepted the test result as adequate proof of appellant's alcohol concentration. It did so despite testimony that it is possible that a third test of appellant's breath might have revealed a reported result under 0.16. The record supports the district court's factual finding concerning appellant's alcohol concentration. The evidence is sufficient to support appellant's conviction of third-degree DWI."

The Court's opinion in this case is troublesome as it transfers the rejection of the "margin of error" argument in civil cases and applies it to a criminal case.  In a civil case, the burden of proof is just the "preponderance of the evidence" or "more likely than not" standard.  So the fact that a machine has a "margin of error" is not very important where you are just trying to decide if it is more likely than not that the subject was over the legal limit.

But in a criminal case, where the burden of proof is "beyond a reasonable doubt" then the uncertainty of measurement should apply to prohibit a conviction where it is known that the machine, testing the same sample repeatedly, is likely to give a result under the legal limit.

Moral Of The Story: Never waive your right to a jury trial!

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

Minneapolis DWI Lawyer F. T. Sessoms Blogs on Minnesota DWI: This Week's Featured Minnesota DWI Case

The Minnesota DWI Case Of The Week is McIntyre v. Commissioner of Public Safety (Decided July 14, 2017, Minnesota Court Of Appeals, Unpublished) which stands for the proposition that "close is good enough for government work"!

In McIntyre, the Petitioner was arrested for DWI and taken to the Savage police department for breath testing.  Ms. McIntyre provided two breath samples that were accepted by the testing machine. The first sample reported 0.087 alcohol concentration, and the second sample reported 0.080.   Because under the testing procedure, the lower of the two samples, rounded down, is the final reported value, Mclntyre's testing showed a final result of 0.08.

Ms. McIntyre filed a challenge to the license revocation arguing that the test result was not sufficiently accurate to find that she was over the legal limit.  An employee of the Bureau of Criminal Apprehension's breath lab testified for the defense that uncertainty ranges may be applied to the average of the two DataMaster testing results. She testified that with Mclntyre's test results, there was an 81.92 percent possibility that her test result was over 0.08.

The district court found that the implied consent statute did not require consideration of the margin of error for breath test results; that Mclntyre had supplied two breath tests, each with a blood alcohol content exceeding 0.08; and that the test was properly administered on a machine that had passed diagnostic and control tests. 

On appeal, Ms. McIntyre argued that the testing was unreliable because of the uncertainty measurement calculations applied.  Unfortunately, the Minnesota Court of Appeals disagreed with her argument stating:

"Mclntyre points out that the BCA expert testified that an uncertainty range was applied to the average of the two testing results, and the average of Mclntyre's two samples was 0.0835, which would mean an actual range of 0.0736 to 0.0934. But Mclntyre's argument based on the uncertainty range of testing is similar to alleging that alcohol concentration must be proved within a certain margin of error. We have held, in assessing the results of an alcohol testing instrument, that '[t]he Commissioner of Public Safety is not required to prove an alcohol concentration . . . within some alleged margin of potential error.' Dixon v. Comm'r of Pub. Safety, 372 NW.2d 785, 786 (Minn. App. 1985).  We agree with the district court that Mclntyre's argument based on the uncertainty range fails. We also note that the BCA expert testified that a probability had been calculated for Mclntyre's test results, and the possibility that her test result was over 0.08 was 81.92%. This is sufficient to meet the preponderance-of-the-evidence standard applicable in implied-consent hearings."

Moral Of The Story: Never have one for the road as it is likely to put you over the legal limit.

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