Minnesota Lawyer Blog

An interesting twist on the Intoxilyzer debate reported in the Pioneer Press today:

Charles A. Ramsay, a DUI defense attorney, on Monday released a copy of
what he calls the "smoking gun" e-mail from a BCA toxicologist to Intoxilyzer
5000 manufacturer CMI Inc. of Owensboro, Ky.

The e-mail, dated Sept. 27, 2006, indicates that the Intoxilyzer "on
occasion" printed out different blood-alcohol readings than what it displayed on
its screen and that the amount of air required to provide a breath sample varied
depending upon the version of software running the machine.

As the article goes on to note that defense lawyers throughout the state have attacked the admission of the results of the Intoxilyzer 5000 because of the manufacturer's refusal to provide the source code in response to discovery requests. Defense lawyers have met with mixed results with the source code argument in the trial courts, with some judges excluding the results and others not.

The Court of Appeals recently issued an opinion putting the onus on defense lawyers to show that providing them with the source code would help their clients. The state Supreme Court has yet to address the issue.

The Attorney General's Office has filed a federal lawsuit to obtain a copy of the source code. But Ramsey, who, along with other DWI defense attorneys seeks to intervene in the suit, is skeptical. He referred to the AGO's efforts to get the code as "lackluster" in a press release sent to Minnesota Lawyer.

It’s the kind of distinction that nobody is happy about, not even defense attorneys.

According to the National Survey on Drug Use and Health, Minnesota ranks third in the United States when it comes to the percentage of adults who admit having driven under the influence of alcohol over the past year. Almost one-fourth of those surveyed owned up to driving while impaired, putting Minnesota only “behind” North Dakota and Wisconsin. Nebraska and South Dakota are Nos. 4 and 5 respectively.

That’s not surprising, given that the Minnesota Department of Public Safety said the state tallied a record number of drunk driving arrests -- 41,951 -- in 2006.

The Upper Midwest is becoming notorious as a hotbed of excessive alcohol consumption and drunk driving, even after decades of warnings and aggressive campaigns against such behavior.

Even with the recent controversy over the use of the Intoxilyzer in drunk-driving cases, it looks like Minnesota’s DUI attorneys unfortunately will have plenty to keep them busy in the foreseeable future.

There was a very interesting case out of the 8th U.S. Circuit Court of Appeals yesterday -- Sherbrooke v. City of Pelican Rapids.

The federal appellate court turned back a civil-rights claim against the city and its police department over an arrest that sprang from a traffic stop that the motorist argued was invalid. The motorist had pulled to the side of the road and made a cell phone call from his car. When he re-entered the roadway, he kept his hazards on until he reached 55 miles an hour. A police officer, apparently cruising for drunk drivers, saw him driving with his hazards flashing and stopped him. The officer wound up arresting the motorist. Although police eventually let the motorist go without any charges, they recorded the call that he made to his lawyer while he was at the station. The motorist sued, alleging his state statutory and constitutional rights had been violated by the stop, arrest and recording.

A U.S. District Court judge allowed the motorist's sec. 1983 suit to proceed, finding both the stop and the recording of the attorney-client conversation provided grounds for the lawsuit. The 8th Circuit disagreed on both counts, concluding that the stop was reasonable and that the motorist's rights were not violated by the recording. The call was made in a public place in the station and knew that police might be listening, the court reasoned.

The idea that police may be recording their conversations with clients is sure to rile criminal defense lawyers -- particularly those used to taking late night calls from DWI clients asking for advice. However, the three-judge panel was unanimous in that part of its decision.

The case did generate a dissent on the former issue however. Judge Arlen Beam was not happy with the idea of police having the ability to stop someone who had just gotten back on the road and had not yet shut his hazard lights off. Beam viewed the motorist as just being cautious and having done nothing meriting being pulled over. He accused the majority of turning state law "on its head" and of taking a position that "defies common sense."

While such pointed attacks are relatively rare in a dissent, rarer still is it when the majority responds by lobbing a shot back. Responding to Beam's criticism of his decision, Judge Steven M. Colloton wrote:

"We think the alternative interpretation of the statute apparently endorsed by the partial dissenting opinion -- that highway drivers may use flashing lights whenever accelerating from reasonable and prudent speeds below the maximum (say, 50 to 54 miles per hour) up to the speed limit of 55 miles per hour -- more nearly 'defies common sense' than does ours.

In other words, "I'm rubber and you're glue, your words bounce off me and stick to you."