Minnesota DWI Attorneys Entitled to Intoxilyzer 5000 Source Code Says State Supreme Court

Posted on May 4, 2009 by Jason C. Brown

Last week the Minnesota Supreme Court, in State v. Underdahl and Brunner, opined that the State of Minnesota must produce the Intoxilyzer 5000 EN source code if an individual charged with a DWI can show that the code relates to their guilt or innocence. Justice Meyer wrote for the majority.

Defendants Underdahl and Brunner sought discovery of the source code for the the Intoxilyzer 5000EN following DWI charges. In both cases, the trial court ordered the State of Minnesota to produce the code within one month, or the court would find that the breath test results were not admissible and dismiss the complaint against Underdahl and Brunner. The State of Minnesota appealed and the Minnesota Court of Appeals reversed. The Minnesota Supreme Court elected to hear the consolidated cases of Underdahl and Brunner.

The Minnesota Supreme Court upheld the Minnesota Court of Appeals decision to reverse the production order in Underdahl’s case. However, with respect to Brunner, the Supreme Court reversed and reinstated the trial court's order for State of Minnesota to produce the complete computer source code for the Minnesota model of the Intoxilyzer 5000EN.

The Supreme Court examined whether the trial court abused its discretion in concluding that the computer source code was relevant and otherwise discoverable under the Minnesota Rules of Criminal Procedure. Rule 9 provides:

Upon motion of the defendant, the trial court at any time before trial may, in its discretion, require the prosecuting attorney to disclose to defense counsel and to permit the inspection, reproduction or testing of any relevant material and information not subject to disclosure without order of court under Rule 9.01, subd. 1, provided, however, a showing is made that the information may relate to the guilt or innocence of the defendant or negate guilt or reduce the culpability of the defendant as to the offense charged.

The Minnesota Supreme Court has not previously stated what showing is required to support a trial court’s conclusion that information may relate to a defendant’s guilt or innocence in a DWI case. But in other criminal cases the Court has required “some plausible showing that the information sought would be both material and favorable to his defense.”

According to Justice Meyer, although broad discretion is given to district courts in discovery matters, the district court in Underdahl’s case abused its discretion in finding the source code relevant and related to his guilt or innocence. This was because Underdahl made no threshold evidentiary showing whatsoever; while he argued that challenging the validity of the Intoxilyzer was the only way for him to dispute the charges against him, he failed to demonstrate how the source code would help him do so. Justice Page and Justice Anderson dissented on the conclusion of the majority relative to Underdahl.

However, Brunner submitted source code definitions, written testimony of a computer science professor that explained issues surrounding the source codes and their disclosure, and an example of a breath-test machine analysis and its potential defects. Brunner’s submissions  demonstrated that an analysis of the source code may reveal deficiencies that could challenge the reliability of the Intoxilyzer and, in turn, would relate to Brunner’s guilt or innocence. Therefore, Justice Meyer found that the district court in Brunner’s case did not abuse its discretion in concluding that the source code may relate to his guilt or innocence.

In an article authored in Minnesota Lawyer by associated editor Barbara Jones, she points out that this decision may mean that breath tests are a thing of the past. According to Dakota County Attorney Jim Backstrom. “I will be instructing officers to only administer blood or urine tests until we get further clarification."

Good news on some fronts. Urine tests are the least reliable of the three forms of testing. Most agencies opt for urine testing as opposed to blood tests.

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Minnesota Felony DWI Conviction Stands Despite Lawyer's Argument that Pending Appeal Meant No "Conviction" for Prior Offense

Posted on April 20, 2009 by Jason C. Brown

In an unpublished decision entitled State v. Johnson, the Minnesota Court of Appeals affirmed the district court's 48 month sentence on a felony DWI conviction. Judge Ross drafted the opinion.

In March of 2007 an officer approached a truck and asked its occupant to shut off the motor. The occupant, Johnson, had a blood alcohol content of .27. Johnson was charged with two counts of first-degree driving while impaired. He pleaded guilty to first-degree DWI and acknowledged that he had prior convictions for alcohol-related driving offenses in 1998, 1999, 2001 and 2005.

At the sentencing hearing, the lawyer for Johnson tried to to persuade the court to disregard the prior felony DWI because Johnson was not on probation for that offense and because it was the subject of an appeal to the Minnesota Court of Appeals at the time he committed the more recent offense. The Scott County district court had found Johnson guilty of felony DWI for the 2005 offense in early 2006. The argument, however, was that that Johnson had not been “convicted” of that offense because of the pending appeal.

Judge Ross wrote:

Johnson’s arguments regarding the timing of his prior appeal and his probation status are immaterial to whether he was previously convicted. Johnson offers no legal basis or plausible reasoning to support his contention that a defendant is not “convicted” until this court decides his appeal. Our opening line deciding that earlier appeal begins, 'Appellant challenges his conviction of first-degree refusal to submit to a chemical test.'

The Court found that because Johnson was convicted of a felony DWI before 2007, the district court properly considered Johnson’s prior conviction and did not err by imposing the presumptive 48 month executed prison sentence.

The more drunk driving convictions a defendant has on their record, the less sympathetic courts are in hearing arguments for a reduced charge or sentence. The Johnson case provides a clear example of a lack of sympathy on the part of Judge Ross, who wrote, "Johnson’s arguments miss the mark." It doesn't get much clearer than that. Kudos to counsel for trying.

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Minnesota Court of Appeals Clarifies "Physical Control" of Motor Vehicle for Sleepy, Intoxicated Auto Owners

Posted on March 29, 2009 by Jason C. Brown

In a decision published on March 24, 2009 entitled State v. Fleck, the Minnesota Court of Appeals affirmed that evidence that a person was alone, intoxicated, and asleep behind the wheel of his car parked in an assigned space in his apartment’s parking lot at 11:30 p.m. with the keys on the console, was sufficient to support a finding that he was "in physical control" of the motor vehicle within the meaning of Minnesota's drunk driving laws.

Late one evening, law enforcement responded to a call and found Fleck asleep behind the wheel of his car. The relevant vehicle was legally parked in an assigned space at the apartment building where he lived. Fleck was drunk, with a blood alcohol content of .18. The keys to the car were on the console between the driver and passenger seats, but there was no evidence that Fleck had recently driven the vehicle. Fleck was arrested and charged with two counts of felony DWI for being in physical control of a motor vehicle while impaired. He was convicted and ordered to serve 48 months in prison.

On appeal, Fleck argued that evidence that he was simply sleeping in his car, at his home, while intoxicated, was insufficient to support a finding that he was in physical control of the vehicle within the meaning of Minnesota's DWI statutes. The relevant statute provides that any individual who drives, operates, or is in physical control of any motor vehicle within the State of Minnesota while under the influence of alcohol or with an alcohol concentration of .08 or more is guilty of a crime. A person is in physical control of a vehicle if he "has the means to initiate any movement of that vehicle and he is in close proximity to the operating controls of the vehicle."

Judge Stoneburner wrote, "the evidence of Fleck’s use of his vehicle was not inconsistent with driving the vehicle, and the keys were readily available to him." His felony DWI conviction was affirmed.The Court distinguished this case from another, State v. Pazderski , in which the Court found that an intoxicated, sleeping vehicle occupant should not have been charged with a DWI. Of importantance, in Pazderski, no keys ever found in the vehicle.

What's frustrating about the Fleck decision is the fact that the Court went out of it's way to make a specific finding that there was "no evidence" that Fleck had driven the vehicle in question while under the influence. Seems to me that a rigid application of the relevant standard in this instance leads to a grossly  unjust result. It makes far better sense for an officer to have probable cause to arrest someone for a DWI if, for example, the car engine is warm, there are fresh tire tracks in the snow, or some other objective evidence of vehicle operation presents itself - rather than pure speculation about whether a car was, or will be, driven.

If you have been charged with a DWI, you need to know your rights. The DWI lawyers with the Brown Law Offices, P.A. provide a strong defense. Please call (763) 323-6555 or contact us through our online consultation form.

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Intoxilyzer Source Code Cases Continue: State Doesn't Have an Obligation to Disclose; Not in Possession

Posted on March 18, 2009 by Jason C. Brown

On March 17, 2009, Judge Minge issued an opinion, in Patterson v. Commissioner,  that denied an individual accused of drunk driving the ability to obtain the Intoxilyzer 5000 EN source code from the State of Minnesota. Why? Because the state says it doesn't have it.

Patterson was arrested for DWI, and his driver’s license was revoked pursuant to the implied-consent law. On review of the revocation, he argued that he was entitled to discover the Intoxilyzer source code because of its relevance to his challenge to the revocation. The State of Minnesota stated that it did not have possession, custody, or control of the source code and offered an affidavit in support of that fact. The district court denied Patterson's motion and sustained his license revocation on several bases, including that there was no evidentiary basis to believe the code was possessed by or available to the State. Patterson appealed.

The issue in this case is whether the district court abused its discretion in finding that Patterson failed to make a showing sufficient to compel discovery of the source code. Rulings related to discovery entail a considerable exercise of discretion by the district court. According to Judge Minge, "the most obvious basis for the district court’s denial of appellant’s motion was its finding that there was no basis to believe that the source code was in the possession of or available to [the State]."

Judge Minge found that the finding of the district court in this case was grounded on the rule 34 requirement that, to be discoverable, an item must be in the “possession, custody or control” of the party from whom it is sought. The State presented an unchallenged affidavit from a toxicology supervisor for the BCA, who attested that “the only individual or entity in actual possession of the source code . . . is its manufacturer, CMI, Inc." On that basis, the Court of Appeals affirmed.

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Minnesota Court of Appeals Denies Drunk Driver's Request to Obtain Intoxilyzer 5000 EN Source Code

Posted on March 11, 2009 by Jason C. Brown

In an unpublished opinion issued by the Minnesota Court of Appeals on March 3, 2009 entitled State v. Thompson, Judge Stoneburner affirmed the district court's denial of an accused drunk driver's request to obtain and review the source code for the Intoxilyzer 5000 EN.

In Thompson, the driver challenged his conviction of misdemeanor driving while impaired, arguing that the district court abused its discretion in denying his motion to discover the source code for the Intoxilyzer 5000EN. Under the Minnesota Rules of Criminal Procedure, in misdemeanor cases, any discovery beyond police investigatory reports is by consent of the parties or motion to the district court. Under the rule, the district court may exercise its discretion and require the prosecution to disclose material and information if the defendant shows that the information may relate to the guilt or innocence of the defendant or negate the guilt or reduce the culpability of the defendant as to the offense charged.

Thompson argued that the Intoxilyzer was “the State’s only witness” and asserted that he is entitled to “conduct a full examination” of this witness. He argued that he cannot assess the reliability of the testing method without access to the source code. He asserted that he has shown the relevance of the source code to his guilt or innocence in a manner sufficient to make the district court’s denial of its discovery an abuse of discretion. The Court of Appeals, however, disagreed, relying on the State's expert, who stated:

In the field of forensic toxicology, validation of analytical methodologies for analyzing alcohol and other drugs in the human body is performed exclusively without access to analytical instrument software source code . . . . I have never heard or read of a validation of a toxicological analysis method that was performed with access to the software source code of the analytical instrumentation. I also am unaware of any articles in peer review journals describing the necessity for access to source codes for any validation tests.

Judge Stoneburner opined:

Thompson has not shown the existence of any validation method that requires the source code; has not explained why existing reliability testing (that does not require the source code) is insufficient to establish the reliability of the instrument used in his test; and has not explained how the source code could invalidate existing reliability testing. On this record, we cannot conclude that the district court abused its discretion by denying Thompson’s request for discovery of the source code.

Why do we defense lawyers continue to push for the disclosure of the Intoxilyzer source code? It's actually pretty simple. The code is the hub between a breath sample and the method by which those samples are afforded a numerical value. Remember your math teacher demanding that you "show your work?" The Intoxilyzer manufacturer (obviously intending to protect what it believes to be valuable intellectual property) continues to refuse to show its work. How, then, can the court understand whether the results offered by a machine are inherently reliable?

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Minnesota Court of Appeals Affirms Second Degree DWI Conviction Despite Prosecutorial Misconduct Claim

Posted on February 27, 2009 by Jason C. Brown

In an unpublished decision from the Minnesota Court of Appeals entitled State v. Lucht, Judge Kalitowski affirmed Lucht's conviction for second degree driving while impaired despite her claim of prosecutorial misconduct. Lucht argued that the prosecutor’s use of “were they lying”- type questions during cross-examination constituted prosecutorial error during the trial.

Because Lucht failed to object to the prosecutor’s questions during trial, the alleged prosecutorial error was reviewed under the plain-error standard. To establish plain error, a defendant must show that (1) there was error, (2) the error was plain, and (3) the error affected his or her substantial rights. If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.

Generally, questions designed to elicit testimony from one witness about the credibility of another have no probative value and are considered improper and argumentative. But the prosecutor may ask these questions when the defendant holds the issue of the credibility of the state’s witnesses in central focus.

“Were they lying” - type questions may be permissible when those questions would be particularly probative in clarifying a line of testimony, or when the jury must evaluate the credibility of a witness who claims that everyone but the witness lied, or when the witness flatly denies the occurrence of events, and thereby places the central focus on the credibility of the state’s witnesses.

In this instance, the Court affirmed based upon the fact that no plain error occurred in allowing "were they lying" - type questions. Lucht's version of the facts in her case differed substantially from that of three witnesses to the events in question.

Even if there were an error in allowing such questions:

In light of the strong evidence against appellant–testimony from three witnesses about appellant’s intoxication, the BAC test results, and appellant’s unclear and inconsistent testimony–we conclude that there is no reasonable likelihood that the absence of any prosecutorial error would have significantly affected the jury’s verdict.

This opinion of the Minnesota Court of Appeals sounds radically different from that which was rendered by the Maryland Court of Appeals in 2007. In State v. Hunter, Judge Cathell opined that "When prosecutors ask 'were-they-lying' questions, especially when they ask them of a defendant, they, almost always, will risk reversal."

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Summary of Minnesota DWI Charges

Posted on February 14, 2009 by Jason C. Brown

DWI involves the operation of a motor vehicle while under the influence of alcohol to the degree that cognitive and motor skills are impaired. In Minnesota, DWI laws also apply not only to motor vehicles, but also to recreational vehicles, such as ATVs, airplanes, boats and snowmobiles.

Minnesota statutes outline four major categories of drunk driving crimes:

The degree of a DWI in Minnesota depends upon whether "aggravating factors" are present at the time of arrest. These factors include:

  • A qualified prior impaired driving incident within the ten years immediately preceding the current offense; 
  • Having an alcohol concentration of .20 or more as measured at the time, or within two hours of the time, of the offense; and
  • Having a child under the age of 16 in the motor vehicle at the time of the offense, if the child is more than 36 months younger than the offender.

A drunk driver is guilty of first-degree DWI if they commit a violation within ten years of the first three or more drunk driving incidents, or have been previously convicted of felony DWI in Minnesota. A drunk driver is guilty of second-degree DWI if two or more aggravating factors were present when the violation was committed. A drunk driver is guilty of third-degree DWI if one aggravating factor was present when the violation was committed. A drunk driver is guilty of fourth-degree DWI if their blood alcohol content totals .08 or more at the time of operating a motor vehicle.

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Your Options for Representation in a DWI Case

Posted on February 5, 2009 by Jason C. Brown

If you've been charged with a DWI in Minnesota, you have three options for representation: (1) the public defender; (2) represent yourself; or (3) hire a private DWI lawyer. While many handle their case themselves or work with the public defender, it is probably in your interest to retain the services of an experienced, reputable DWI defense lawyer.

Public defenders are, contrary to popular belief, exceptional attorneys. Many view them as government lawyers who do nothing more than move piles of indigent defendants through the courts. A former colleague was known in the local jail as "Penitentiary Pat" and I've heard may referred to as "public pretenders." Nothing could be further from the truth.

Despite the respect they deserve, there are some significant disadvantages in working with a public defender if you've been charged with a DWI. First, the amount of time a public defender may devote to your file is substantially less than private counsel. They are simply assigned too many cases. Second, when you go to court, you will likely be one of dozens of clients they represent that day. Be prepared to wait a while to speak with your lawyer - and then only for a few minutes. Third, you have no say in who your public defender is. If you don't click with your attorney, you're out of luck. Finally, the public defender will not handle the implied consent portion of your case with the Commissioner of Public Safety. If you wish to recover your suspended license or challenge the validity of the stop, only private counsel will advocate for you.

What about representing yourself? Because of the serious consequences that flow from a DWI, it is not advised to go it alone. I know from firsthand experience that plea offers can turn far more attractive when an individual is represented by counsel. A recent client went to court without a lawyer for his first appearance. The prosecutor told him he would offer nothing less than ten days of jail time as an offer to resolve the matter short of trial. We were retained and went to the next appearance with him. The prosecutor agreed to a plea deal that called for no executed jail time. Yes, a skilled DWI defense lawyer at your side does make a difference.

A reputable DWI lawyer will raise all of the favorable constitutional and evidentiary issues involved in your situation and assess the merits of your case in light of the county you are charged in and judge you are appearing before. No matter how intelligent or smooth an individual may be, a defendant charged with a DWI will rarely handle their matter as well as an experienced DWI attorney.

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Minnesota DWI Crackdown: More Than 2,600 Cited Last Month

Posted on January 9, 2009 by Jason C. Brown

The Minneapolis Star Tribune reports that 2,655 people were cited for drunk driving in Minnesota last month. The relevant article by Paul Walsh claims that the average blood alcohol content of impaired drivers that were arrested and charged was .14, nearly twice the legal limit.

Walsh points out that enhanced DWI patrols with continue through 2009 in the most critical areas of the state for drunk driving offenses, including Anoka County, Hennepin County, Dakota County, Sherburne County, Wright County and Washington County. From 2005 through 2007, 533 motorists have been killed by drunk drivers on Minnesota roads, 1,200 serious injuries were sustained as the result of a drunk driver and more than 117,000 (nearly twice the capacity of the Metrodome) were arrested for driving drunk.

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Probable Cause and Articulable Suspicion in Drunk Driving Cases

Posted on December 30, 2008 by Jason C. Brown

Thanks to Matthew Ruff, a respected Los Angeles DUI Lawyer who handles cases throughout California, for a recent post concerning the main reasons that the police pull people over for a DUI.

In his article, Ruff notes that the National Highway Safety Transportation Safety Administration has identified a number of behaviors that suggest a probability of driver intoxication (the basis for the police to stop a driver):

  • Turning the car with a wide radius;
  • Straddling the center or a lane line or marker;
  • Appearing to be drunk or visibly intoxicated;
  • Almost striking a fixed roadside object or vehicle;
  • Weaving within or outside a lane of travel;
  • Driving the vehicle somewhere other than the designated roadway;
  • Swerving in a sudden fashion;
  • Driving at a slow speed;
  • Stopping the car in the lane without cause;
  • Following another vehicle too closely, improper or unsafe distance;
  • Drifting in and out of the lane;
  • Tires traveling on center or lane marker;
  • Braking suddenly or erratically;
  • Driving into opposing or crossing traffic;
  • Signaling a turn inconsistent with driving actions;
  • Stopping inappropriately other than in lane;
  • Slow response to green lights or other traffic signals;
  • Turning abruptly or illegally, in violation of traffic laws;
  • Accelerating or decelerating rapidly; or 
  • Headlights off at night.

He further points out that once a driver is pulled over, the following behaviors indicate some level of intoxication on the part of the driver (and provide probable cause for an officer to conduct field sobriety tests):

  • Difficulty with vehicle controls;
  • Difficulty exiting vehicle;
  • Fumbling with a drivers license or registration;
  • Repeating questions or comments to the officer;
  • Swaying, unsteadiness or balance problems while speaking to the police officer;
  • Leaning on the vehicle;
  • Slurred, thick or drunken speech;
  • Slowness in responding to questions, or asking officer to repeat questions;
  • Providing incorrect information or changing answers; or
  • Odor of an alcoholic beverage.

Keep in mind that one of the key defenses in a DWI case is the argument that the arresting officer did not have an "articulable basis" for the stop that resulted in a drunk driving charge or probable cause to conduct field sobriety tests. If the court agrees, a DWI stemming from an illegal stop or a legally insufficient demand to submit to testing will be dismissed.

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