The appeal courts in Minnesota have issued several rulings within the last few years with regard to the reliability of urine testing in DWI or DUI cases. Most, if not all, of these rulings have been unfavorable from the defense attorney’s perspective. A few of these rulings have been discussed previously in our blog – MN Court of Appeals issues DWI urine test ruling, Minnesota Court rules with regard to urine testing in DUI cases.
Recently, in State v. Tanksley, the Minnesota Supreme Court decided it is not relevant whether a urine sample is a reliable measure of a person’s alcohol concentration in DWI cases.
In Tanksley, the defendant submitted a first-void urine test following his arrest for DWI. The Minnesota Bureau of Criminal Apprehension tested the sample and determined it contained .13 grams of alcohol per 67 milliliters of urine. The state charged Tanksley with two counts of fourth-degree driving while impaired: (1) driving under the influence; and (2) having an alcohol concentration of .08 or more within two hours of driving. See Minn. Stat. §§ 169A.20, subd. 1(1); and subd.1(5). Prior to his trial, Tanksley filed a motion to suppress the urine test results arguing that first-void urine tests are unreliable and not generally accepted in the scientific community under Frye-Mack. The district court denied Tanksley’s motion to suppress and did not grant him a Frye-Mack hearing to determine the reliability and acceptance of first-void urine tests. After the ruling, Tanksley stipulated to the facts for count two, having an alcohol concentration of .08 or more within two hours of driving, was convicted, and appealed.
At the court of appeals, the court held the district court abused its discretion by denying Tanksley a Frye-Mack hearing. But the court of appeals held that denying Tanksley a Frye-Mack hearing was not prejudicial, because the court already decided the issue in State v. Edstrom. In Edstrom, the court held a full Frye-Mack hearing on the reliability of first-void urine testing and determined it to be reliable. Subsequently, the Minnesota Supreme Court granted Tanksley review.
In affirming the district court, the Minnesota Supreme Court held it is not relevant whether a first-void urine sample is a reliable measure of a person’s alcohol concentration, because the State does not need to prove reliability. According to the Court, the State only needs to prove two elements for the alcohol-concentration offense: (1) that the defendant drove, operated, or was in physical control of a motor vehicle; and (2) that the defendant’s alcohol concentration was .08 or more at the time, or within two hours of driving. The Court reasoned that the statute provides three methods to determine alcohol concentration: by blood, breath, or urine. See Minn. Stat. § 169A.03, subd. 2. Therefore, the Court stated, it is irrelevant whether first-void urine tests are reliable. The Court went on to state “[t]o hold otherwise would require us to add an element to the alcohol-concentration offense that is not present in subdivision 1(5) of section 169A.20: that urine alcohol concentration levels using the first-void method must correlate with blood alcohol concentration levels.”
Even though the Court did not rule in favor of Tanksley, the Court’s holding still leaves open avenues to challenge the reliability of urine testing in Minnesota DWI cases. But, more importantly, the Court’s decision shows it is still reluctant to decide what measures are reliable to determine a person’s alcohol concentration. The Court feels that determination is better left to the Legislature.