In our October 17th, 2009 blog posting we discussed an unpublished ruling by the Minnesota Court of Appeals with regard to “urine pooling” http://www.kanslaw.com/blog/minneapolis-dwi-lawyer-mn-court-issues-ruling-on-urine-testing.html. In that ruling, the Minnesota Appellate Court upheld a lower court’s decision excluding defendant’s expert testimony on the issue of whether urine testing is a reliable method for determining one’s blood alcohol concentration at the time of testing.
The defendant’s argument was that since the driver did not have the opportunity to void his bladder prior to the state’s urine test, the urine sample was not reflective of his actual blood alcohol concentration at the time of testing, but rather reflected the blood alcohol concentration since the last time he had urinated.
The Minnesota Court of Appeals reasoned that the test need simply be performed and administered properly in order to be accurate and reliable. Furthermore, the Court concluded that the test was administered under accepted Bureau of Criminal Apprehension (BCA) guidelines which does not require a bladder void prior to collecting a urine sample. Therefore, the defendant’s expert testimony, contesting this method, was excluded.
In another unpublished decision that was just released on December 15, 2009, Schroeder vs. Commissioner of Public Safety, the Minnesota Court of Appeals once again tackled this issue. In Schroeder, the Court yet again upheld a lower court’s ruling excluding the defendant’s expert from testifying with regard to this “urine pooling” theory finding that the BCA urine-testing procedures valid and reliable.
Appellant argued that the issue and analysis should not be just whether his specific urine test is reliable under Minn. Stat. 169A.53 subd. 3(b)(10), but whether urine testing, in general, should be an acceptable scientific method to determine one’s blood alcohol concentration at the time of testing in light of the “urine pooling” and first void issue. Appellant further argued the urine testing method should be subject to the Frye-Mack test or scientific inquiry for reliability to be held admissable.
The Minnesota Court of Appeals disagreed reasoning that the Frye-Mack test must only be met by the state if it was offering evidence from “a novel scientific technique” and therefore must show that such a “novel” technique is “accepted in the relevant scientific community”. The Court found that urine testing is not a “novel” technique and has been established as reliable by previous court rulings and is therefore not subject to the Frye-Mack test.
Since most jurisdictions in Minnesota are now avoiding use of the Intoxilyzer 5000EN machine to determine a driver’s blood alcohol concentration, I believe there will be more cases in the future attacking urine testing as a reliable alternative.
If you, or someone you know, has been arrested for a DWI or DUI related charge in Minnesota, then call respected Minneapolis DWI Lawyer Douglas Kans at (952) 835-6314 (952) 835-6314 or (888) 972-6060 for a free initial consultation.