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DWI Case Of The Week is Palke v. Commissioner of Public Safety (Decided January 27, 2020, Minnesota Court of Appeals, Unpublished) which stands for the proposition that the Courts are not going to allow any expert to impugn the general reliability of a Data Master breath test with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 State v. Freeman, (Decided January 20, 2020, Minnesota Court of Appeals, Unpublished) which stands for the proposition that when it comes to the right to counsel prior to testing, "no" means "no".

In Freeman, an officer in Stearns County observed a black car fail to stop for a stop sign.  After pulling over the vehicle, the officer encountered Mr. Freeman in the driver's seat of the car.  Mr. Freeman smelled of alcohol, was slurring his speech and the back seat of his vehicle was full of beer.

After performing field sobriety tests, Mr. Freeman was placed under arrest and was read the Minnesota Implied Consent advisory in the back seat of the squad. Mr. Freeman was told he had that right to talk to an attorney prior to testing and was asked by the officer if he wished to consult with a lawyer.

Mr. Freeman told the officer, “I’m gonna contact [an attorney] but it ain’t gonna be tonight.” The officer read the advisory once more and asked again whether Freeman wanted to consult with an attorney, and Freeman said that he was not going to talk to an attorney at that moment. He said, “I don’t need to contact one beforehand” and “I will talk to one afterwards.”

The officer asked one last time, “[d]o you wish to consult with an attorney? Yes or No?” and Freeman responded, “[a]t this moment, no. Not before that.” Then the officer offered him one last chance to take the test and Freeman said no. The officer recorded Freeman’s test refusal and took him to jail.

The Defendant filed a motion to suppress the evidence of his  test refusal on the grounds that his right to counsel prior to testing was not vindicated.  The District Court denied the motion to suppress and on appeal, the Minnesota Court of Appeals affirmed, stating: 

"Here, the officer read Freeman the implied-consent advisory, thereby triggering his limited right to counsel. During their subsequent conversation, Freeman stated that he was going to be talking to an attorney but not in that moment or that night, noting that he wanted to contact an attorney he had worked with before."

"When a driver expresses his interest in consulting with an attorney, the officer must either clarify the driver’s request or vindicate that right by providing a phone and an opportunity for consultation. State v. Slette, 585 N.W.2d 407, 410 (Minn. App. 1998). And courts consider the totality of the circumstances in determining whether the right to consult counsel was vindicated. Groe v. Comm’r of Pub. Safety, 615 N.W.2d 837, 841 (Minn. App. 2000), review denied (Minn. Sept. 13, 2000)."

"Here, the transcript shows that the officer tried to clarify whether Freeman was invoking this right. The officer demonstrated this through his follow-up questions and efforts to confirm Freeman’s wishes. And Freeman ultimately stated that he did not want to consult an attorney before making his decision not to submit to chemical testing. By doing so, Freeman declined to exercise his limited right to consult with an attorney."

Moral Of The Story:  A right is only good if you exercise it.

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.

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 State v. Gardner (Decided January 13, 2020, Minnesota Court of Appeals, Unpublished) which stands for the proposition that sometimes you are better off without an expert.

In Gardner, the Defendant was arrested for DWI after having a minor traffic accident.  Her blood test result was a .137% alcohol concentration level and she chose to take the case to trial.  

The state called four witnesses in its case-in-chief: two state troopers, who investigated the collision and observed Gardner’s behavior; a forensic scientist employed by the Minnesota Bureau of Criminal Apprehension (BCA), who tested Gardner’s blood sample; and one of the other drivers involved in the collision. One of the state troopers testified that he provided an HCMC phlebotomist with a BCA-approved blood-draw kit. The BCA forensic scientist testified on cross-examination that she did not know the procedures used by the HCMC phlebotomist who drew Gardner’s blood sample.

After the state rested its case, Gardner called only one witness, Thomas Burr, who was qualified as an expert witness on the subject of forensic toxicology. Burr questioned the circumstances and procedures of the blood draw, including the credentials of the HCMC phlebotomist who drew Gardner’s blood and the equipment used, facts that Burr testified are “essential... to ensure that it’s an accurate sample.” Burr testified that he did not know whether the phlebotomist used an alcohol-based swab or an appropriate needle or whether the collection tubes were sterile and intact. He testified that the blood-test results could be inaccurate if the phlebotomist who drew the blood sample was not qualified, did not use an appropriate needle, used an alcohol-based swab, or used a compromised collection tube. He further testified that the blood-test result could be unreliable because the blood sample took six days to reach the BCA by mail.

After Gardner rested her case, the state called the phlebotomist as a rebuttal witness. Gardner objected, arguing that the phlebotomist’s testimony was not proper rebuttal evidence and would be unfairly prejudicial. The prosecutor explained that the phlebotomist’s testimony would rebut Burr’s expert testimony, which had emphasized the absence of testimony by the phlebotomist. The district court overruled Gardner’s objection on the ground that rebuttal testimony was appropriate. The phlebotomist testified about her qualifications, the procedures she followed during the blood draw, and the equipment she used during the blood draw, including the fact that she used a non-alcohol-based swab and a needle smaller than that provided in the BCA-approved blood-draw kit.

The Defendant was convicted of DWI and on appeal asserted the district court was wrong to allow the phlebotomist to testify as a rebuttal witness.  The Minnesota Court of Appeals, however, disagreed noting:

"The subject of rebuttal evidence is governed by a rule of criminal procedure: “The prosecutor may rebut the defense evidence, and the defense may rebut the prosecutor’s evidence.” Minn. R. Crim. P. 26.03, subd. 12(g). Rebuttal evidence offered by the state is defined as evidence that “explains, contradicts, or refutes the defendant’s evidence.” State v. Swaney, 787 N.W.2d 541, 563 (Minn. 2010)"

While Gardner contended that "the district court erred on the ground that the state generally may present rebuttal evidence only after [a defendant has] presented unexpected testimony in his or her case" the Court of Appeals in its decision points out that "surprise" is not a requirement of rebuttal.

***

"Gardner further contends that the state did not have a “good reason” to withhold the testimony of the phlebotomist during its case-in-chief and that the state attempted to “game the order of trial in order to gain a strategic advantage.” She further contends that her trial attorney, when developing trial strategy, relied on the state’s decision not to call the phlebotomist in its case-in-chief. These contentions appear to assume that the state has an obligation to introduce all of the evidence it possesses during its case-in-chief, or that the state has an obligation to foresee or predict the evidence that a defendant will introduce during the defense case. To the contrary, the rule and the caselaw allow the state to listen to the defendant’s evidence and assess its persuasiveness and then consider offering rebuttal evidence. The key question is whether the state’s proffered rebuttal evidence “explains, contradicts, or refutes the defendant’s evidence.” Swaney, 787 N.W.2d at 563. In this case, the state’s rebuttal evidence satisfies that test. "

In this case, the phlebotomist was listed by the state as a possible trial witness.  When the state failed to call said witness in its case-in-chief, it should have been obvious they were holding back, waiting for the defense expert to testify.  A better move would have been to cross-examine the BCA expert concerning potential problems with the blood draw and then rest without calling any witnesses.

Moral Of The Story: Sometimes less is more.

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