Saturday, August 7, 2010

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

The Minnesota DWI Case Of The Week is the unpublished case of  State v. McIlraith (Minn.App. August 3, 2010).  In McIlraith, the defendant was arrested for boating while intoxicated with an intoxilyzer test result of .13.  When the defendant was arrested, he consulted with an attorney who advised the defendant to obtain an independent test.  The defendant called his wife to collect a urine sample but the police would not allow his spouse to collect the sample.  The defendant then called an independent-testing agency and the agency was allowed to collect the urine sample. The independent test showed a urine test result of .12.

The defendant moved to suppress the state's intoxilyzer test result arguing that the police had violated the defendant's statutory right to have an independent test done "by a person of his own choosing" as required by Minn. Stat. § 169A.51, subd. 7(b).  The district court denied the defendant's Motion to Suppress but on appeal, the Minnesota Court of Appeals reversed the district court and ordered the intoxilyzer test suppressed. So far so good!

After the case was remanded to the district court, the prosecution subpoenaed the test result obtained from the independent-testing agency and sought to introduce the .12 urine test to convict Mr. McIlraith.  The defense moved to suppress the urine test arguing: (1) it was testimony given by a defendant in support of a motion to suppress; (2) he did not intend to introduce the result of the second test at trial and was, therefore, non-discoverable, and (3) the purpose of the independent testing statute would be defeated if the prosecution was allowed to exploit the defense efforts to investigate the case.  The second motion to suppress was denied at the district court and on appeal, the Minnesota Court of Appeals rejected all of the arguments advanced by the defense.

The Minnesota Court of Appeals held:

(1)  "Although McIlraith testified during the first pretrial suppression hearing that he took the independent test and testified as to what he remembered was the result of the test, it was the actual result of the test, as subpoenaed by the state from Accurate Testing, and not McIlraith's testimony, that provided the basis for the reinstatement of the charge based on testing.  Because it was the test result itself rather than McIlraith's testimony that was at issue in the second Lothenbach trial, we reject his first argument."

(2)  "...under Minn.R.Crim P. 9.02, subd. 1(2), which states that, [t]he defendant must disclose and permit the prosecutor to inspect and reproduce any results or reports of ...scientific tests...made in connection with the particular case within the possession or control of the defendant that the defendant intends to introduce in evidence at the trial...
However, this rule does not apply to the result of the second test because the state was able to obtain the records from Accurate Testing independently, without the consent of McIlraith.  Thus the district court correctly concluded that this scientific test was not solely within the possession or control of McIlraith.  Therefore, whether McIlraith intended to introduce the result of the test into evidence at trial was irrelevant."

(3)  "Lastly, McIlraith argues that the purpose of Minn. Stat. § 169A.51, subd. 7(b), the independent testing provision, would be defeated if the result of an independent test could be used against the defendant without his consent.  McIlraith correctly indicates that the purpose of the provision is to ensure a criminal defendant's constitutional right to due process and confrontation by facilitating effective investigation and preparation...However, the asserted purpose of the statute does not prevent the state from obtaining accurate evidence of a defendant's alcohol concentration... The statute only precludes admission of the test administered by the police if an additional test was prevented or denied.  It does not prevent the admission of the result of an additional test."

I believe that the McIlraith  decision is wrong because:

(1)  The State only became aware of the independent test and its result through the testimony of the defendant at his original suppression hearing.  The test result obtained by the State is thus the fruit of the defendant's testimony which may not be exploited.

(2)   The defendant produced the urine sample and paid for the the test result.  The sample and result would not exist but for his physical and financial efforts to defend his case.  To claim that the result is not within his possession or control because it was subpoenaed by the prosecution seems to ignore the concept of "constructive possession".  If a person produces the sample, pays for its analysis, does not intend to introduce the results of the investigative analysis, how can the state, consistent with Rule 9.02 introduce the evidence produced by the defense?  After all, no scientific test result produced in a lab is ever in the exclusive "possession and control" of a defendant as the lab will always have a copy of its work!

(3)  The Court admits the purpose of the statute is ensure a defendant's constitutional right to due process and confrontation and then defeats the admitted purpose of the statute by claiming that state's conduct is not prohibited by the very statute whose purpose has now been defeated.

MORAL OF THE STORY: Be Careful What You Wish For!

F.T. Sessoms, Minnesota DWI Attorney, Minnesota DUI Lawyer, Minneapolis DWI Attorney, Minneapolis DUI Lawyer

F.T. Sessoms, Minnesota DWI Lawyer