Tuesday, August 25, 2009

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

The Minnesota DWI Case of the Week is State v. Beall, _ N.W.2d. _ (Minn.App. 8/23/09). Beall is a pretrial appeal by the State where it challenged the District Court's ruling that the stop of the defendant's vehicle for an inoperable center brake light did not constitute a reasonable articulable suspicion of a violation of the law.

The defendant argued at the suppression hearing that the stop of his vehicle was not valid because his vehicle was equipped with two working stop lights as required by Minn. Stat. § 169.57, subd. 1(a)(2006). The District Court agreed with the defendant concluding that, "because Beall's vehicle had two working brake lights as required by Minn. Stat. § 169.57, subd. 1 (a), the inoperable third brake light did not give [the officer] a reasonable articulable basis to stop the vehicle". Id. at _.

On Appeal the Appellate Court observed, "Generally, if an officer observes a violation of a traffic law, no matter insignificant the traffic law, that observation forms the requisite particularized and objective basis for conducting a traffic stop". Id. The Court of Appeals then noted, "While we agree with the district court that such a vehicle would not be operated in violation of Minn. Stat. § 169.57, subd. 1(a), the district court failed to consider that Minn. Stat. § 169.57, subd. 3(a) requires that '[w]hen a vehicle is equipped with stop lamps or signal lamps, such lamps shall at all times be maintained in good working condition. Minn. Stat. § 169.47, subd. 1 (2006), provides, in relevant part, that '[i]t is unlawful ... for any person to ... fail to perform any act required under this chapter.' A vehicle with an inoperable center brake light is operated unlawfully in violation of Minn. Stat. § 169.57, subd. 3(a). Observation of such a violation gives rise to objective, reasonable, articulable suspicion justify a traffic stop. " Id. (Emphasis the court's).

The Minnesota Court of Appeals rejected, "...as without merit Beall's assertion that 'such lamps' as used in section 169.57, subd. 3(a), refers only to two statutorily required lamps: the provision unambiguously applies to all lamps with which a vehicle is equipped. And, the provision in Minn. Stat. § 169.57, subd. 4, prohibiting certain alterations and installations to federally required center brake lights, 'if the alteration or installation alters or obscures any portion of the lamp or affects the intensity of light emitted,' demonstrates that the legislature is aware of the importance of operable, unaltered center brake lights." The Court of Appeals then held that the district court erred by holding that the stop was not justified.

Moral of the Story: When it comes to brake lights, if you got them, you better flaunt them!

F.T. Sessoms, Minnesota DWI Attorney

Tuesday, August 18, 2009

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

The Minnesota DWI Case of the Week is: Horarik v. Commissioner of Public Safety, (Unpublished 8/18/2009 Minn. App.).

Mr. Horaik was arrested for a DWI and submitted to a urine test. The laboratory analysis of the urine sample showed an alcohol concentration level of .12.

At his license revocation hearing, Mr. Horaik challenged the constitutionality of Minn. Stat. § 634.15, subd. 1(a)(1), which allows into evidence the laboratory test result without any antecedent testimony from the chemist who performed the test. Mr Horaik argued, among other things, that the laboratory test evidence violated his right of confrontation guaranteed by the Sixth Amendment to the United States Constitution.

In Crawford v. Washington, 541 U.S. 36, 51, 124 S.Ct. 1354, 1364 (2004), the United States Supreme Court held that the Confrontation Clause encompasses witnesses' out-of-court statements when those statements are "testimonial" in nature. A laboratory test result offered in a criminal trial against a defendant meets the Crawford definition of a testimonial statement. See, Melendez-Diaz v. Massachusetts, 577 U.S. _, _, 129 S.Ct. 2527, 2532 (2009); State v. Caulfield, 722 N.W.2d 304, 310 (Minn. 2006).

The Court of Appeals, however, ruled against Mr. Horarik stating, " The significant distinction, however, is that implied-consent proceedings unlike the criminal proceedings governed by the Crawford rule, are civil in nature." And the "...due process rights associated with criminal trials do not apply. Horarik was not entitled to the protections of the Confrontation Clause in his implied-consent hearing, and his argument for relief on that basis fails."

Tuesday, August 11, 2009

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

This week's featured Minnesota DWI case is State v. Casey, _ N.W.2d _ (8/11/2009 Unpublished). It is an unpublished decision from the Minnesota Court of Appeals and is noteworthy only because it gives a fairly good recitation of what constitutes a "seizure" of the person for purposes of the Fourth Amendment.

In Casey, the defendant had left his vehicle and was walking when he encountered the police. The police began talking to the defendant and he admitted that he had consumed too much to drink. The police subsequently gave the defendant some field sobriety tests and placed him under arrest for DWI.

At trial, the defendant moved to dismiss the charges on the grounds that the evidence was obtained as the result of an illegal seizure of his person.

The Minnesota Court of Appeals affirmed the conviction noting:

"The United States and Minnesota Constitutions prohibit unreasonable search and seizure by the government. U.S. Const. Amend IV, Minn. Const. Art. 1 § 10. Not all contact between citizens and police officers constitutes a seizure. In re Welfare of E.D.J., 502 N.W.2D 779, 781 (MINN. 1993). A seizure occurs 'when the officer, by means of physical force or show of authority, has in some way restrained the liberty of a citizen.' Id. (quoting Terry v. Ohio, 392 U.S. 1, 19 n.16, 88 S.Ct. 1868, 1879 n.16 (1968). A 'person has been seized within the meaning of the Fourth Amendment only if, in view of all of the circumstances surrounding the incident, a reasonable person would have believed that he was not free to leave.' United States v. Mendenhall, 446 U.S. 544, 554; 100 S.Ct. 1870, 1877 (1980).

Circumstances that might indicate a seizure occurred include: (1) the threatening presence of several officers; (2) an officer's display of a weapon; (3) the officer physically touching the citizen; or (4) the officer's use of language or tone of voice indicating that compliance might be compelled. State v. Harris, 590 N.W.2d 90, 98 (Minn. 1999).

It is not usually a seizure for an officer to walk up to a person or an already stopped vehicle in a public place. Cobb v. Comm'r of Pub. Safety, 410 N.W.2d 902, 903 (Minn.App. 1987); See also, State v. Colosimo, 669 N.W.2d 1, 4 (Minn. 2003) (holding that initial interaction where officer was merely conversing with appellant did not amount to a stop or seizure); Norman v. Comm'r of Pub. Safety, 409 N.W.2d 544, 545 (Minn.App. 1987) (holding that officer did not seize appellant by walking up to him while he was standing outside his vehicle). So long as a reasonable person would feel free to terminate the encounter and law enforcement does not induce cooperation by coercive means, a seizure does does not occur when an officer asks for identification or poses questions of a person in public. United States v. Drayton, 536 U.S. 194, 201; 122 S.Ct. 2105, 2110 (2002). In contrast, "it is likely to be a seizure if a person is ordered out of a vehicle, or the police engage in some other action or show of authority which one would not expect between two private citizens." State v. Day, 461 N.W.2d 404, 407 (Minn.App. 1990)." Casey, at p.4-5 (slip opinion).

F.T. Sessoms, Minnesota DWI Attorney

Friday, August 7, 2009

Minnesota DWI Lawyer Blogs on Minnesota DWI: Urine Tests are Unreliable-The Pooling Effect.

A number of police departments in Minnesota have stopped using the Intoxilyzer 5000 EN as the primary testing method for people arrested for DWI. The police have stopped using the Intoxilyzer machine because the software used to run the machine must be disclosed to the defense and the State has had problems complying with the request.
The two alternative authorized methods for testing individuals arrested for DWI are blood or urine. This blog article discusses the inherent unreliability of the Minnesota Urine Testing Procedure.
In State v. Kolander, 236 Minn. 209, 221-22, 52 N.W.2d 458, 465 (1952), the Minnesota Supreme Court adopted the standard for the admissibility of evidence obtained from new scientific techniques as set forth in Frye v. United States, 293 F. 1013, 1014 (D.C.Cir.1923), which requires “general acceptance in the particular field in which [the scientific principle or discovery] belongs.” Frye, 293 F. at 1014. In State v. Mack, 292 N.W.2d 764, 768 (Minn.1980), the Minnesota Supreme Court subsequently held that “the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where experts in the field widely share the view that the results are scientifically reliable as accurate.” The Court stated that the particular evidence must have a foundation that is scientifically reliable.
As a result of Frye and Mack, a two-pronged standard has emerged in Minnesota that must be satisfied before scientific evidence may be admitted:
First, a novel scientific technique that produces evidence to be admitted at trial must be shown to be generally accepted within the relevant scientific community;
Second, the particular evidence derived from the technique and used in an individual case must have a foundation that is scientifically reliable. Mack at 819; Goeb v. Tharaldson, 615 N.W.2d 800, 810 (Minn.2000) (reaffirming adherence to Frye-Mack standard after Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)). Put another way, the Frye-Mack standard asks first whether experts in the field widely share the view that the results of scientific testing are scientifically reliable, and second whether the laboratory conducting the tests in the individual case complied with appropriate standards and controls. State v. Jobe, 486 N.W.2d 407, 419 (Minn.1992).
In Minnesota, the urine test result is not reliable as the police do not obtain a proper sample for analysis. The police have received no instruction in the proper procedure for obtaining urine samples. By not requiring a first void, the officer will obtain a “pooled void” urine sample which is not scientifically valid for testing.
There is no scientific literature that in any way supports an un-void or "pooled-void" urine sample as a proper sample for alcohol testing.
There are two points of view in the scientific literature and in the scientific community regarding urine testing for alcohol:
1. The majority view is that urine is improper at all as a sample because it is too hard to preserve. It is not a good sample period.
2. The minority view is that it is okay to use a urine sample if one voids the bladder first and then collect a “midstream” void. Both views agree that you can’t use a pooled sample.
When a person stops drinking, the ethanol is continuously being removed from the individual's blood by their metabolism. The ethanol ends up in a person’s urine, which is a waste product excreted by the kidneys. The urine, containing the ethanol, accumulates in the bladder until the person voids. Little or no oxidation of the ethanol occurs in the bladder and can result in abnormally high urine alcohol concentrations being obtained from the first void. Or to quote from A.W. Jones:
“The length of time that urine is stored in the bladder before voiding is also an important consideration because ethanol is continuously being removed from the blood by metabolism, but no oxidation of ethanol occurs in the bladder. This situation results in abnormally high UAC to BAC ratios being obtained for the first void.” Reference Limits for Urine/Blood Ratios of Ethanol in Two Successive Voids from Drinking Drivers. Journal of Analytical Toxicology, Vol. 26, p. 333 (September 2002).
If a person has not done a first void, there is no relationship or correlation between the amount of alcohol in a person’s urine and the amount actually in their blood. It is not at all uncommon for persons to have high levels of alcohol in their urine and very low or no levels of alcohol in their blood. Minnesota is the only place that does not have any promulgated rules for administering or collecting a urine test. Other states, that don’t prohibit urine testing for alcohol concentration by statute or rule, have all promulgated some rules at least for the proper administration of the test!
Minnesota Statute § 169A.03, subdivision 2, defines alcohol concentration for purposes of the DWI Statute in 3 ways:
1. the number of grams of alcohol per 100 milliliters of blood;

2. the number of grams of alcohol per 210 liters of breath;

3. the number of grams of alcohol per 67 milliliters of urine.

The number of grams of alcohol per 210 liters of breath is generally accepted as being the equivalent of the alcohol concentration in a person’s blood. The number of grams of alcohol per 67 milliliters of urine is also generally accepted as being the equivalent of the alcohol concentration in a person’s blood. It, therefore, appears that the Minnesota Legislature intended that the alcohol concentration levels for breath and urine be the rough equivalent to that contained in a person’s blood.
This legislative intent is defeated when a pooled urine sample is used for testing.
If the Defendant has not urinated prior to giving the urine sample to the police, the pooling effect of alcohol in the bladder will cause the test result to be an inaccurate and unreliable measure of the Petitioner’s actual concentration level.
“The proponent of a chemical test must establish that the test is reliable and that its administration in the particular instance conformed to the procedure necessary to ensure reliability.” Schultz v. Commissioner of Public Safety, 393 N.W.2d 373 at 375 (Minn.App. 1986); citing State v. Dille, 258 N.W.2d 565, 567 (Minn.1977). “After a prima facie showing of trustworthy administration, it is incumbent on the petitioner in an implied consent proceeding to suggest reasons why the test was untrustworthy.” Schultz, supra; citing Tate v. Commissioner of Public Safety, 356 N.W.2d 766, 768 (Minn.Ct.App. 1984). The burden of persuasion regarding the accuracy of the test result remains with the proponent of the evidence. Dille, supra; at 567.
In cases involving urine test results, the scientific literature demonstrates that the “pooling effect” upon the urine sample renders the test result an unreliable measure of an individual’s alcohol concentration level. To use this unreliable test result to sustain the revocation of an individual’s license, or obtain a criminal conviction, would subvert the Legislature’s intent that the three testing methods yield the same result!!

F.T. Sessoms, Minnesota DWI Lawyer