“Because DWI . . .”

The Only Explanation

Some Minnesota appellate court decisions and statutes can only be explained with a shrug and quietly mumbling “because DWI.”  Due process (the legal term for “fairness”) is routinely abandoned in DWI law in ways that is not  tolerated in other areas of law.

Chief among these is the admissibility of breath tests in DWI prosecution without any proof that the tests are accurate and with limited opportunity to challenge the results.

From the Roadside to the Courthouse

Not only can police drag you to the station and search your body without a warrant, the test is admissible in court without proof that it is accurate. To be clear, I refer to the “evidentiary breath test” at the police station after a driver has been arrested, handcuffed, and transported to the jail in the back of a squad car, not the preliminary breath test (PBT) given at the side of the road.

Few people question, and many applaud, this expedited means of catching and punishing “drunk drivers.” But “drunk drivers” is in quotation marks because some of these people simply are not drunk.  The machine produced a flawed breath test.

People are Going to Jail Based on Junk Science 

For years, I and others have been arguing that these tests are not accurate. People are being subjected to the humiliation, the intrusion on their bodily integrity, and a criminal prosecution based on a test that does not accurately reflect the person’s actual blood alcohol level. These convictions carry untold scores of collateral consequences ranging from losing a job to losing custody of children, not to mention the financial costs.

Fortunately, the New York Times has recently blown the lid off of this injustice with a series of investigative articles, including one with the apt name “These Machines Can Put You in Jail. Don’t Trust Them.” The problems cited in the articles include that the machines are not calibrated properly, that they are not maintained properly, that they are not used correctly, and that the fundamental scientific principles behind these machines are simply bad science. According to the Times, “[t]he devices, found in virtually every police station in America, generate skewed results with alarming frequency, even though they are marketed as precise to the third decimal place.”

Exposing the problem, though, does not solve it. At least not in Minnesota.

Problem Identified . . . not solved

Under Minnesota law, the reliability of the testing machine cannot be challenged directly in court. The test is presumed reliable unless the driver can present evidence that the machine he or she was tested on was not working in this particular instance. That is, a driver in court cannot challenge the reliability of the machine, itself, no matter how unreliable the underlying technology is. Once the BCA, which is an arm of the prosecution and has a vested interest in promoting the reliability of the machine it certified, says the machine is trustworthy, the driver cannot challenge whether the underlying testing methodology is reliable (whether the machine works), only whether the machine worked as it was supposed to in this instance. Even if “as it was supposed to” is not a reliable, scientific method of testing breath or blood alcohol.

For context, if you want to introduce DNA, medical testimony, or metallurgy (to determine why a building collapsed or a car crashed), you have to have an expert testify why a scientific methodology is accurate and reliable. In DWI prosecutions, and uniquely in DWI prosecutions, as long as the BCA (again, an agency that works for the prosecution) certifies the machine, and the police officer pushes the button on the machine, no amount of expert testimony that the underlying science on which the machine operates is flawed (know as “antecedent testimony as to foundational reliability”) is allowed in court. Einstein, Newton, and Edison could all be ready to testify that infra-red and fuel cell testing of breath does not provide a reliable measurement of blood alcohol (measured by breath) or impairment, and Minnesota courts are not even allowed to hear their testimony. In short, you cannot cross-examine the primary witness against you.

This is true, even if the operator of the machine did not operate it according to proper procedures.

Angry yet?

The Consequences

Thirty- to forty-thousand Minnesotans are arrested on suspicion of DWI each year. Most do not even fight the charges because they assume the test is accurate and cannot be challenged. However, I can and do challenge these machines . . . and have done so, successfully many times.  There are ways to get a jury to understand how bad these machines really are, in spite of laws that have made it hard to do so.  Using the BCA experts’ testimony against them, using the actual materials that the police are trained on, and using every scrap of paper the BCA, itself, has produced about these machines, I can prove how unreliable Minnesota’s DataMaster DMT-G (with fuel cell option) actually is.

The BCA actually changed its website after I made a two-foot by four-foot exhibit of it and started showing it to juries! I can give someone accused of DWI a fair chance to demonstrate that the test accusing them of driving drunk is wrong.  Don’t let junk science accuse you of something you didn’t do.

Call me to challenge your DWI test result. Click here to see how I do it.