Today, again, the Star Tribune printed an article about DWI arrests that assumes all people arrested for DWI are guilty of DWI. I sent the author of that article the following letter:
I appreciate today’s article on DWI arrests, but I do have a few nits to pick.
First, your article confuses being arrested for DWI (alcohol or drug) with actually being impaired. You write that a “majority of the 27,975 motorists cited for driving while impaired (DWI) last year had too much alcohol in their system.” Unless you know the outcome of the cases, the resolution in court, you don’t know that they had too much alcohol, only that they were accused of it. To be more precise, I think you’re saying that the majority of those arrested for DWI were suspected of DWI with alcohol (as opposed to drugs). There is a difference. The presumption of innocence isn’t just a technicality or a relic of the 18th century (when the Constitution was written). Assuming police get it “right” 95% of the time, that’s still 1,500 arrests per year in which the person was innocent (assuming the round number of 30,000 arrests per year).
For example, I have one going to trial next week in which my client had an accident (hit a parked car). The cop said (captured on body cam) “she reeks of alcohol.” When she blew 0.00 on the preliminary breath test (PBT), the cop took a urine sample. That showed metabolites of a prescription benzodiazepine. It’s only illegal to drive on that medicine (or any drug from schedules 3-5) if you’re impaired (a subjective determination), while it’s illegal to drive with any amount of Schedule 1 or 2 drugs (although a prescription is an “affirmative defense”).
Second, you take Mike Hanson’s word for the fact that the police are getting better at detecting people impaired by drugs and refer to Drug Recognition Evaluators (you call them what they call themselves, “Drug Recognition Experts,” but according to the Minnesota Supreme Court in Klawitter, they aren’t experts, at all, and it is a mistake to call them “experts,” at least in front of a jury).
Simply put, DRE training is . . . a joke. Try this: ask an MD if he could determine the type and amount of controlled substance a person is on using the DRE twelve test protocol. I’ve done it. The trained doctor would laugh that he or she could so determine, but cops believe they can after a two-week class. Judges across the country are dismissing DRE testimony on these grounds (here’s just one example).
I could go on and on, but I won’t. Instead, I invite you to contact me any time, and I’ll explain how much more complicated Minnesota DWI law is than the police, BCA, and DPS let on.