Why Defend the Guilty

I had an unexpectedly animated discussion with a friend last night. She was (misled by a routine and routinely poorly researched Star Tribune stories about DWIs) furious at what she saw as the breakdowns in Minnesota’s criminal justice system. Why do lawyers defend the guilty?

Defending the Accused

The gist of  my friend’s argument was that, using the aforementioned DWI case, if the driver blows a 0.08 or higher, she’s guilty.  Why defend her.  There is proof of her guilt, and she should suffer the consequences!

I explained how and why I would defend the accused.

My friend argued that I was merely wasting the courts’ time and taxpayer dollars.

Of course books can and have been written on this subject, so I’ll limit my comments today to a few particularly interesting and not-well-known issues having to do with blood alcohol tests.

Breathalyzers — The Intoxilyzer 5000

Minnesota uses breath tests.  In particular, Minnesota law enforcement uses a breath testing device called the Intoxilyzer 5000 (I5000).

Defense attorneys (including me) have been  arguing that the I5000 is a black box, that we cannot defend our clients who allegedly had a blood alcohol concentration of 0.08 or higher without any idea of how the machine calculates a blood alcohol content (BAC).

Increasingly, courts all over the country are agreeing.

After scholarly articles revealed that the I5000’s results were often inaccurate and others showed the variety of factors that can affect a test, Judges are ordering that the device’s manufacturer, CMI, release its source code (the computer programming behind its calculations).

Urinalysis

Minnesota also uses urinalysis.  Most states do not.

Urine tests are unreliable for many reasons. If a person has some drinks, then waits an appropriate period before driving, if she hasn’t urinated, the urine sample she gives will have the prior alcohol concentration, reflecting the alcohol that has “pooled” in her urine, not an accurate measure of her level of intoxication (if any).

Further, mishandled urine samples can ferment in their container prior to being analyzed, causing the concentration in the urine tested to be higher than when it was produced.  (More about constitutional challenges to urinalysis here)

Blood Tests

Finally, Minnesota also uses blood tests.  Again, blood must be handled carefully for the specimen to be accurately tested.

Shockingly, the Minnesota State Legislature recently passed a law that allows law enforcement to designate anyone — anyone! — to draw the blood.  (H.F. No. 2881, 3rd Engrossment – 86th Legislative Session (2009-2010))

While the law states that the officer can only designate someone “trained in a licensed hospital or educational institution to withdraw blood,” “educational intuition” is not defined, and the police officers, themselves are increasingly drawing blood.

Note: whichever poison you choose, you do have a choice.  Under Minnesota law, you can refuse a blood or urine test as long as you are offered an alternative.  Minn. Stat. sec. 169A.51, Subd. 3).