Tuesday, January 11, 2011

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

The Minnesota DWI Case of The Week is the unpublished decision of  State v. Dixon  (Minnesota Court of Appeals decided January 11, 2011) which stands for the proposition that urine test results are not subject to scientific challenge in a criminal case.  

In  Dixon, the defendant sought to introduce expert testimony challenging the reliability of urine testing to measure the level of alcohol concentration in a person suspected to driving under the influence.  The trial court, however, ruled that the defense could not offer expert or lay testimony on the reliability of urine testing because Minnesota has accepted the scientific basis of this testing method.

On Appeal, the Minnesota Court of Appeals affirmed, essentially saying they have approved the use of urine testing in the past and so they are going to uphold its use into the future.  Or as stated by the Court:

"Minnesota Courts have rejected challenges to the use of urine tests based on the 'urine-pooling theory', which suggests that a urine test is scientifically invalid if the suspect is not required to void his bladder once and wait 20 to 30 minutes before providing urine for testing, to assure the accuracy of the test. Hayes, 773 N.W.2d at 138-139; Genung v. Comm'r of Pub. Safety, 589 N.W.12d 311, 313.  In  Hayes,  this court ruled that the district court did not abuse its discretion by excluding expert testimony that would have attempted to challenge the validity of the urine testing based on this theory.  In  Genung,  this court stated that BCA urine-testing procedures 'have been found to ensure reliability' and 'do not require voiding once before producing the test sample.  In Hayes,  this court relied on Genung to conclude that, even if the proffered expert testimony on the urine-pooling theory were relevant, 'it is insufficient as a matter of law to prove that the testing method is not valid and reliable' under the implied statute.  Because current Minnesota law upholds the reliability of first-void urine test results, the district court did not abuse its discretion by refusing to allow appellant to introduce expert witness testimony on the reliability of the urine-pooling theory or by refusing to permit appellant to cross-examin the state's BCA expert witness on that theory."

What is interesting about this case is that the Minnesota Court of Appeals uses CIVIL CASES to reach a result in a CRIMINAL CASE.  Hayes  and  Genung  were both civil cases where the burden of proof is much lower.

In a criminal case, a defendant should always have the right to challenge the accuracy and reliability of a scientific test because the stakes are so much higher than they are in a civil action.  Because a criminal defendant faces the potential loss of his or her liberty then due process, or fundamental fairness, demands that a jury have all the evidence they need to access the reliability of a chemical test. 

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!

So even though a first-void urine test result has no support whatsoever in the scientific community, as long as the Minnesota BCA is willing to use it, the Minnesota Court of Appeals is going to back them up.

MORAL OF THE STORY:  Never submit to a urine test.  Always exercise your right to have a blood test done instead.  At least it will be accurate and not overstate your alcohol concentration level.

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