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Posts Tagged ‘Minnesota DWI Lawyer’

Minnesota DWI Chemical Evidence Part 1 – The Breath Test

Tuesday, January 31st, 2012

In any DWI case in Minnesota, the chemical evidence (which usually comes in the form of a breath test), plays a very important role. Police officers use two different types of breath tests in Minnesota, the Preliminary Breath Test and the Evidentiary Breath Test. These two tests have significant differences in terms of their legal implications and technology. Let’s take a look at these different breath tests and their purposes.

Preliminary Breath Test

During the Preliminary Breath Test, also known as portable breath test or PBT, a small handheld device is used by a police officer to measure the blood alcohol concentration level of a suspected drunk driver at the scene of the arrest (before the officer makes the arrest decision).

Although not as reliable as its bigger counterpart, the PBT machine can help an officer come to an arrest decision if the result of the driver’s breath test is close to or above the legal driving limit (which is 0.08 BAC in Minnesota). It’s important to note, however, that the result of the Preliminary Breath Test is usually not permissible for use against the accused driver in court to prove innocence or guilt. Also it’s important to note that refusal to submit to a PBT carries no criminal penalties in Minnesota. However, it can help establish probable cause for your arrest for DWI.

Evidentiary Breath Test

The Evidentiary Breath Test or the EBT, which is typically done back at the police station (after the arrest has been made) uses a bigger and more precise breath testing machine. The DataMaster is the most commonly used Evidentiary Breath Test machine in Minnesota and in several states for DWI cases.

The DataMaster works by measuring and calculating the blood alcohol concentration in the breath sample of a driver. The printout of the breath test’s result is presented by police officers and prosecutors as evidence in court to prove the driver’s guilt. Refusal to submit to the evidentiary breath test at the police station after an arrest may mean a separate misdemeanor charge for the suspected DWI offender.

How Reliable Are The Breath Test Machines?

A lot of Minnesotans are questioning the reliability of the breath test machines used in Minnesota DWI cases. It’s important to understand that these machines are not perfect and many errors and variables may affect their results.

The DataMaster evidentiary breath test machine result (which is often used as the main evidence against arrested DWI offenders) is still prone to both operator and maintenance errors. This simply means that if the DataMaster is not properly maintained by operators, it can register erroneous results. Additionally, if breath testing procedures are not properly followed during the test, the results of the test can be deemed invalid by the court.

Human Variables Affecting Breath Test Results

There are human variables which vary from person to person which may cause breath testing machines to register inaccurate BAC results. These variables can make sober drivers appear guilty of drunk driving by showing results of a 0.08 or higher BAC even when their true blood alcohol content is lower. On the flip side, obviously impaired drivers can be considered innocent by police officers even though they actually have a BAC above the legal limit.

Physical variables in the person being tested alter the body’s normal composition, and the breath testing machines are not programmed to adjust to them. Some of the human variables which may cause erroneous DWI breath test results are the following:

Stress
Confusion
Age
Illnesses
Fear of Police
Fatigue
Prescription Medication
Weight

Challenging Minnesota Breath Test Results

There are many ways to challenge the results of breath tests in Minnesota, and their effectiveness really depends on the expertise of your Minnesota DWI Defense Attorney. Some methods of challenging these tests are successful, and some fail. An experienced DWI attorney is up to date on all the recent changes in Minnesota DWI laws, and knows the angle and argument to make for each unique DWI case. Sometimes this can lead to a dismissal of your case and sometimes it leads to lower DWI penalties. If your DWI attorney is able to successfully attack the evidence against you in court, the result of your breath test will be thrown out and usually at that point the prosecutor will no longer have enough evidence to proceed with your DWI case.

Are You Seeking To Challenge Your DWI Charge?

If you’re charged with DWI in Minnesota, you need to immediately contact an experienced DWI Lawyer to examine how your physical variables, or the condition of the breath test machine could have affected the result of your breath test.

Minneapolis DWI lawyer Douglas T. Kans has the expertise and ability to provide you with the best strategy in defending your DWI charge. You can contact Kans Law Firm at (952) 835-6314 for a free case review.

Tags: breath test, Datamaster, dwi breath testing, dwi chemical evidence, dwi chemincal test, minnesota dwi breath test, Minnesota DWI Lawyer
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Appeals Court Reverses DWI Conviction: Prejudicial Evidence Presented Despite Defendant’s Stipulation

Saturday, June 4th, 2011

In an unpublished opinion filed May 9 of this year, the Minnesota Court of Appeals changed its prior opinion on State vs. Mohomoud, where it upheld the district court’s decision to sentence the defendant for first-degree DWI, second-degree test refusal and driving after cancellation offenses and rejected the defendant’s argument that the admission of his conversations with his attorneys was a plain error.

The defendant’s argument concerns a partially redacted DVD recording of the reading of the implied consent advisory to the defendant and his telephone calls to his two attorneys where he admitted that he had prior DWI convictions. Note that during the hearing, Mohomoud put forward his stipulation that his prior DWI convictions and references to it be kept away from the jury.

Despite the stipulation, however, the DVD recording was shown in its entirety, except for the portion where the dispatcher referred to the defendant’s prior DWI convictions. The prosecution explained that beyond cuing the recording to play after the dispatcher’s mention of the prior DWI convictions, there’s no other way to edit the recording to filter out the defendant’s own references to his DWI convictions which still aired in front of the jury. Following the conviction for for first-degree DWI, second-degree test refusal and driving after cancellation, an appeal was submitted to the Court of Appeals by the defendant for a review on account of the plain error of the admission of the recording calls with his attorneys.

After losing at the Court of Appeals, the defendant elevated the issue to Supreme Court, which decided to remand the case to the Appeals Court, suggesting that it should reconsider whether Mohomoud indeed waive his right to claim error in the admission of a recording which contained his own references to his prior DWI convictions, with consideration given to the invited-error doctrine.

After another review, the Appeals Court determined that the defense did not “invite” the error of allowing the inclusion of the references to prior DWI convictions, but merely forgo with the objection due to the technicality that there’s really no other way to remove them from the recording. This choice by the defendant was made explicit and went on record, which separates it from the usual failure to object scenario.

Because of this, the Court recognizes that as far as the DWI count is concerned, “even assuming the defense “invited” the admission of the mostly unredacted DVD, admission of that evidence was plain error…therefore the invited-error doctrine does not apply as to that count.”

Further, following the plain error doctrine, the district court’s ruling violated the defendant’s “substantial rights” – in this case, failing to honor the defendant’s right to stipulate the exclusion of the portions of the DVD recording prejudicial against his case. Again, as far as the DWI count is concerned, the Court concludes that “that there is a reasonable likelihood that the error had a significant effect on the verdict, and, therefore, that it affected Mohomoud’s substantial rights.”

This case should be of great interest to any Minnesota DUI Lawyer and those charged with DWI offenses, because it highlights the possibility of reversing convictions on valid rights violations arguments. In this case, it was a violation of his right to stipulate against what he deem as potentially prejudicial elements of evidence, which the Court of Appeals upheld by ordering the district court’ resentencing for the DWI count.

Charged with a Minnesota DWI? Call the Attorneys at Kans Law Firm, LLC at (952) 835-6314 for a free case review.

Tags: Minnesota DWI, Minnesota DWI Laws, Minnesota DWI Lawyer
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Minneapolis PD Policies on Video Recordings for DWI Arrests – And What They Mean for the Defense

Saturday, May 28th, 2011

Previously, we looked at how authorities were using the state’s traffic cam system in conjunction with motorists’ reports to hunt down and charge suspected drunk drivers in Minneapolis-St. Paul. The success and accuracy of this practice is still an open question, and it remains susceptible to privacy and ethics questions.

A more acceptable practice that affords protection for field enforcers and civilians alike is the use of in-dash or body video cameras to record stops made. As of 2009, about 60 percent of Minneapolis squad vehicles have cameras installed. A skilled Minneapolis DWI attorney will waste no time in obtaining copies of all video and audio evidence of the DWI stop of his client to review and spot impeachable mistakes in protocol, procedures and police behavior.

They are often powerful pieces of evidence for the defense when it comes to cross-examining the arresting officer/s, establishing and proving the invalidity of State evidence and paving the way for the charge’s dismissal or the defendant’s acquittal.

Many police departments throughout the state base their policies on use of mobile video recording (MVR) equipment for field operations on the policy manual of the Minneapolis PD. The following sections of the Minneapolis PD policy manual are the most relevant for DWI cases:

On the legality of videotaped stops and searches:

“All stops and searches captured on the MVR are presumed to be legal and valid unless evidence indicates otherwise. (09/19/08) (08/28/09)”

On the mechanics of using MVR on the field:

“MVR equipment shall be activated during every stop/contact where a motor vehicle is involved, and will record the stop/contact in its entirety. Officers shall inform those who ask, that video/audio recording equipment is in use. The MVR equipment is designed and installed to automatically engage whenever emergency overhead lights are activated. Officers can also manually activate the MVR equipment. (04/11/07)”

and

“Officers are prohibited from altering MVR equipment in any way. Officers shall only use MVR recordings issued by the MPD. Officers are prohibited from erasing, re-recording or tampering with MVR recordings. (08/28/09)”

After a DWI Arrest:

“When suspects are arrested for DWI, they shall be taken to the Chemical Testing office, Room 19, for testing and video taping procedures. Suspects may be released after testing and issued a citation if they meet the conditions for issuing a citation in lieu of arrest.”

On retaining MVR recordings:

“Unless otherwise noted, MVR recordings shall be retained for a minimum of 90-days and then may be erased and/or reused. Non-evidentiary recordings that have been erased more than three times should be destroyed. (05/07/07) (07/11/07) (08/28/09)”

Excerpted from 4-219 MOBILE AUDIO AND VIDEO RECORDING EQUIPMENT: Policy and 9-104 ARRESTS FOR DRIVING WHILE INTOXICATED (DWI) of the Minneapolis PD Policy Manual.

As the last excerpt indicates, these video recordings only have 90 days until they are reused and/or erased, which is why it’s important for a DWI lawyer to act quickly and obtain copies of all video and audio evidence pertaining to the case. Within that time period, a careful review should reveal any and all mistakes committed by the authorities. In the next installment, we’ll examine the specific points to look for in video and audio recordings to identify these mistakes.

It is critical for anyone charged with a drunk driving offense to know the value of video recordings for his or her defense. An experienced Minnesota DWI defense attorney should know what to look for and increase the chances of avoiding the State’s harsh penalties against DWI offenses.

If you’ve been arrested or charged with a Minnesota DWI, call Kans Law Firm, LLC at (952) 835-6314 for a free case review.

Tags: drunk driving offense, Minneapolis dwi attorney, Minnesota DWI Lawyer, mobile video recording
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Minnesota DWI Intoxilyzer Source Code Case: Federal Judge approves settlement.

Thursday, July 23rd, 2009

Last Thursday, on July 16, U.S. District Court Judge Donovan Frank published his opinion approving a settlement between the State of Minnesota and CMI, the Kentucky-based company that manufactures the Intoxilyzer 5000EN — the machine used by the state to administer breath tests to measure the blood alcohol concentration of suspected impaired drivers.

For over three years now, criminal defense attorneys have been arguing that without access to the source code (the computer programming that shows how the Intoxilyzer takes a breath sample and turns it into a blood alcohol concentration reading), there is no way to determine if the Intoxilyzer breath test results are accurate. If the results are potentially inaccurate, the argument concludes, then the results should be suppressed evidence, and not admissible in court to prove drunk driving. Defense attorneys made many motions in courts throughout the state asking judges to either grant their discovery requests and force the prosecution to hand over the source code, to test the accuracy of the results, or suppress the results.

Makes sense, right? The counter-argument that the State made was equally logical, though. Basically, the state argued that it didn’t have the source code, so it couldn’t give it to defendants. Why didn’t the state have it? The company that makes the Intoxilyzer machines had refused, when the State asked, to disclose the source code — claiming it was a trade secret, and protected under copyright laws. The Court could tell the State to hand it over, but the State had nothing to hand over.

A few Judges in DUI cases wrestled with this dilemma for a long time — until this last April, when something big happened in Minnesota: The Minnesota Supreme Court ruled in State v. Brunner that the State had 30 days to produce the source code, or the breath test was going to be suppressed, regardless of whether the State currently had access to it or not. However, in a very similar case, State v. Underdahl, the same Supreme Court said the defense hadn’t proven that the source code was relevant to the case and therefore that breath test would not be thrown out without the code. The reason for these two different results boils down to the individual facts of the cases, the differences in the test results and simple math regarding how far off the machine’s readings would have had to have been in order to for the source code to have made a difference.

What happened next was a settlement between Minnesota Department of Public Safety and CMI. This seems like a good thing for folks facing DUI charges based on Intoxilyzer 5000EN test results, right?

The gist of the settlement is that CMI agrees to grant access to the once-guarded, super-secret source code in that anyone who needs access to it can view it in its “native electronic format” at the company’s headquarters in Owensboro, Kentucky.

This is what the federal judge approved last Thursday: A trip to Kentucky and an unlimited number of hours pouring over non-sensical “native electronic format” in order to attempt to discover whether this company’s equipment is functioning the way it’s supposed to do.

But take heart, readers! There are two pieces of good news in this. First, the courts have shown CMI that claims of “proprietary” protection will no longer be entertained in the state of Minnesota. And second, although the federal opinion approves the settlement, individual state trial judges are not bound by the federal judge’s decision.

To read a summary of the settlement, check out this link: http://www.minnlawyer.com/userfiles/pdf/consent.pdf

Tags: Intoxilyzer Source Code, Minnesota DWI, Minnesota DWI Lawyer
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Minnesota Intoxilyzer Breath Testing: A Different Issue

Thursday, April 9th, 2009

After Posting below about another Minnesota DWI Source Code Case where the Court has, yet again, rejected ordering disclosure of the source code because there has been no showing that it is relevant to the driver’s guilt or innocence with regard to his or her ”specific” Intoxilyzer result, I felt it important to note that there are still potential issues a Minnesota DUI Lawyer should be aware of when looking at a particular driver’s specific Intoxilyzer result.

In a recent Hennepin County District Court case, in which I represented the defendant, I successfully argued that, with regard to my client’s specific Minnesota Intoxilyzer Breath Test Result, the machine was unreliable as to whether his blood alcohol concentration was a .o8 or more.

In this case, the simulated breath solution, with a known value, was .O79. The State argued that the simulator solution was within the acceptable limits and was therefore a reliable result. However, upon my cross-examination, the officer reported the simulator solution was read by the Intoxilyzer machine as .081 and .080. Therefore, the machine appeared to be inflating the results by .01 to .02. Generally, this would not be an issue and harmless, however, my client’s second breath sample was exactly .08 with a replicate of .081. The final reported value was .08g/210L.

The Court ruled in our favor and found my client’s specific Intoxilyzer result of .o8 untrustworthy and questionable and therefore rescinded/dismissed the driver’s license revocation. The Court stated that the State of Minnesota/Commissioner failed to establish by a preponderance of the evidence that my client’s alcohol concentration was over the legal limit. Specifically, the Court ruled the Intoxilyzer, in this specific instance, was reading or testing it’s simulator solution at least .002 higher than the simulator solution’s known value of .079. Again, it’s important to note, my client’s test result was exactly a .08.

Certainly, this particular fact scenario is rare in most .08 cases, but it does underscore the notion that there are still genuine legal arguments and issues with regard to Minnesota Intoxilyzer Breath Testing and the skilled Minnesota DWI Lawyer needs to be aware of them.

Tags: Blood Alcohol, Breath Testing, Intoxilyzer, Minnesota DUI Lawyer, Minnesota DWI Lawyer
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Minnesota Intoxilyzer Source Code Case: The State Has No Obligation to Disclose; Not in State’s Possession

Wednesday, April 8th, 2009

In an unpublished opinion by the Minnesota Court of Appeals on March 31, 2009 entitled State v. Kuklok, Judge Bjorkman reversed the district court’s previous order compelling disclosure of the computer source code for the Intoxilyzer 5000EN (Minnesota’s breath alcohol testing device). This was the machine utilized to test the blood alcohol concentration of the driver, which revealed a BAC of .20. The Minnesota Court of Appeals ruled that the district court abused its discretion in determining that discovery of the source code was relevant to the defendant’s guilt or innocence in this case.

The Defendant in Kukolk was charged with second-degree DWI while having a blood alchohol concentration of .20 or more. At the pretrial hearing, the defense counsel, having provided the court with several supporting documents and affidavits explaining the importance and significance of the source code with regard to an Intoxilyzer result, moved the court for an order compelling the state to disclose the computer source code of the Intoxilyzer 5000EN. The district court granted defendant’s motion and ordered disclosure to be completed within 30 days, otherwise, the Intozilyzer test result would be suppressed.

On Appeal, Judge Bjorkman reversed the district court’s ruling finding that the defendant failed to make a connection between his specific Intoxilyzer 5000EN result and the information it felt the source code would provide, if disclosed. Furthermore, on another issue, Judge Bjorkman ruled that the defendant also failed to establish that the source code is actually in the state’s possession or control.

The Minnesota Court of Appeals seems to be indicating that, for disclosure, it’s simply not enough to present general evidence as to the significance of the source code in the Intoxilyzer 5000EN testing sequence. But, the burden for the Minnesota DWI Lawyer is to show, in some manner, how the source code would relate to the specific guilt or innocence of the specific defendant in Minnesota and his or her specific Intoxilyzer result.

Tags: Blood Alcohol Testing, Intoxilyzer Code, Intoxilyzer Source Code, Minnesota DWI Lawyer
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