I have been defending Minnesota DWI cases since first being admitted to practice in Minnesota in early 2001.  Though I have always had my law office located in Wisconsin (La Crosse, 2000-2008, and Onalaska 2008-present), I have been representing clients in South-Eastern Minnesota since 2001.   I have insisted on keeping on top of all the developments in Minnesota DWI and criminal law, to ensure my Minnesota clients get a state-of-the art defense.  In fact, I was the only attorney in our area to become a member of the Source Code Coalition, which was a group of Minnesota DWI attorneys who pooled their resources and fought to keep he flawed Intoxilyzer 5000 breath testing machine out of Minnesota courts.

Keeping on top of Minnesota DWI law requires attendance at the Annual Minnesota DWI Defense seminar in the Twin Cities area.  This year's seminar, held on June 14th, was especially exciting, due to the recent case, Missouri v. McNeely.  In McNeely, the Supreme Court of the United States ruled that warrantless, non-consensual OWI/DWI/DUI blood draws are unconstitutional.

The speakers on the topic of McNeely were Chuck Ramsay, Jeffrey Ring, and Jeff Sheridan.  These preeminent attorneys have spent their gifted careers representing DWI defendants in the Minnesota District Courts.  They were each very excited that the Supreme Court of the United States has finally declared unconstitutional the practice of forcing OWI/DWI/DUI suspects to submit to blood draws without first getting a warrant based on probable cause.  In fact, Jeffrey Ring described McNeely as the most important case in the area of DWI defense during his long career.   That is is really saying something,

Minnesota requires arrested DWI suspects to submit to a breath, blood, or urine test.  Refusal to test is a crime in itself, often more serious than the DWI they were arrested for.  Almost all DWI suspects are read an Implied Consent advisory that tells them that it is a crime to refuse testing.  In other words, there is no such thing as consent to the test.  There is a strong argument that, like the blood test in McNeely, breath tests and urine tests will also be deemed to require a warrant.   Despite the McNeely ruling,  law enforcement is not getting warrants prior to requiring submission to their tests.  That means any BAC test is subject to challenge. 

All competent DWI defense attorneys are challenging these tests at the trial court level.  Attorney Jeff Sheridan already has a case postured to lead the challenge in the Minnesota courts of appeal.  I will be doing my part, and I will be watching carefully to ensure my client's rights are preserved, and that McNeely is enforced.  If you have been charged with DWI in any county in South-Eastern Minnesota, including Houston County, Winona County, Fillmore County, Olmstead County, and Wabasha County, feel free to contact me for free information.           

In Part 1 of this series, I showed how Wisconsin has declared to juries that its chosen, or "approved", BAC testing devices use "scientifically sound method[s] of measuring the alcohol concentration of an individual".  This declaration relieves its prosecutors from having to actually prove that fact to jurors.  This article explores the how Wisconsin went even further to hobble OWI defendants at trial, tilting the playing field even more in favor of its OWI prosecutors.  

Wisconsin Jury Instruction 2663 states, "If you are satisfied beyond a reasonable doubt that there was .08 (breath) 
(blood) at the time the test was taken, you may find from that fact alone that the defendant was under the influence of an intoxicant or operating with a prohibited blood alcohol content at the time of the alleged operating, but you are not required to do so . . ."  This instruction allows prosecutors to tell jurors, "I don't have to PROVE the defendant was actually impaired or .08 at the time of driving.  If you, the jurors, believe the test demonstrates a BAC or .08 or greater AT THE TIME OF TEST, then 'the law' says you can also find he/she was impaired or .08 AT THE TIME OF DRIVING."  It must be nice to play make believe and have the full force of the Wisconsin statutes to uphold the illusion.  

Why is this so unfair?  First, the test result "is admissible", so long as it was taken within 3 hours of the driving.  This means, essentially, that no matter what the issues with the test--i.e. eight breath samples to get a good test--the test is admissible.  Why?  The Wisconsin statutes say so.  This means the Judge at an OWI trial can't exclude a test taken within 3 hours of driving unless the test  is so devoid of trustworthiness as to lack relevance altogether.  


The other reason it's unfair is that the test result could be markedly higher than it was at the time of driving, because of the delay in full absorption of ethanol into the blood.  The Wisconsin Jury Instructions state that the prosecution has the burden to prove each element of the offense of OWI or PAC.  One of the two elements for OWI is that the driver was impaired at the time of driving.  One of the two elements of PAC is that the driver had a BAC of .08 at the time of driving.  But the same Jury Instructions say that impairment or BAC of .08 can be viewed as proven by a test of .08 or greater taken as long as 3 hours after driving.  A BAC test taken any time later is almost certainly not the same as BAC at the time of driving.  

 So does the prosecution have to prove impairment or BAC at the time of driving or not?  Apparently not.  Is the jury allowed to pretend that BAC at the time of driving is the same as the time of test?  Yes.  In fact, they are strongly encouraged to do so if this jury instruction is allowed.

Fortunately, an experienced OWI attorney can often keep Wisconsin Jury Instruction 2663 out of the trial by the introduction of BAC "curve" evidence--i.e., evidence that BAC was below the legal limit at the time of driving, but rose above the legal limit after the driving.  This type of defense will definitely help level the playing field.  

End.   

885.235 (1g) states: In any action or proceeding in which it is material to prove that a person was under the influence of an intoxicant or had a prohibited alcohol concentration or a specified alcohol concentration while operating or driving a motor vehicle  . . .  evidence of the amount of alcohol in the person's blood at the time in question, as shown by chemical analysis of a sample of the person's blood or urine or evidence of the amount of alcohol in the person's breath, is admissible on the issue of whether he or she was under the influence of an intoxicant or had a prohibited alcohol concentration or a specified alcohol concentration if the sample was taken within 3 hours after the event to be proved. The chemical analysis shall be given effect as follows without requiring any expert testimony as to its effect:
 * * *
(c) The fact that the analysis shows that the person had an alcohol concentration of 0.08 or more is prima facie evidence that he or she was under the influence of an intoxicant and is prima facie evidence that he or she had an alcohol concentration of 0.08 or more.

Being an OWI prosecutor is one of the easiest jobs a lawyer can have.  I ought to know, because in addition to a private law practice, I also prosecuted OWI, traffic, and other municipal ordinance violations for several years.  

One reason the job is so easy is the systematic biasing of the citizenry.  Unlike most crimes, there is abundant advertisement against drunk driving on TV and and radio.  There are campaigns such as, "Buzzed driving is drunk driving".  There are statistics thrown around based on the misleading  term "alcohol-related".  There is intense media focus on the senseless deaths caused by drunk driving.  

To be sure, no one is a fan of impaired driving.  However, when someone is accused of any offense, whether it be homicide or OWI/PAC, the process of determining guilt or innocence must be fair, for the sake of us all.  This two-part series will reveal just a couple of ways that Wisconsin law has stacked the deck against persons charged with OWI/PAC.  

Creating bias against OWI/PAC defendants is not the only way the playing field has been skewed:  Wisconsin law stacks the deck in favor of prosecutors, giving them pass on the admission of highly-disputed evidence.  Other provisions instruct judges and jurors that they can find against OWI/PAC defendants based on scientifically-flawed presumptions.  Don't believe me?  Continue reading this two-part series.  In this segment, I focus on how the law has given prosecutors a pass in admitting BAC evidence from breath-testing devices. 

The law in Wisconsin instructs jurors that any BAC testing device approved for use in this state uses a "scientifically sound method of measuring the alcohol concentration of an individual".  (See the standard jury instruction below.)  For breath testing cases, this means that prosecutors don't even have to prove that the "guilt or innocence box" is scientifically sound.  The statutes says it is, and so it is.  Well, the State can say whatever it wants, but that does not make it correct, literally or morally.       

In an OWI/PAC trial I defended last week, the device at issue was the EC/IR II breath testing machine.  That's the only breath-testing device approved for evidentiary testing in Wisconsin.  An important issue was whether the test result was inflated by mouth alcohol.  (The device is supposed to measure BAC in deep lung breath, not alcohol reintroduced (belched) into the esophagus or mouth.)  To begin, the EC/IR II is a device that is (1) tested and maintained by a law enforcement agency, a division of the Wisconsin Highway Patrol; (2) kept at the police stations; and (3) almost always operated by the arresting officer who is seeking a conviction.  Not exactly a formula for objectivity.  

At an OWI/PAC trial, the State's witnesses will vehemently assert that there is nothing to worry about regarding mouth-alcohol contamination, because, supposedly, the EC/IR II has a devise to detect when mouth alcohol is present.  The fact is, the State's witnesses are unable to point to a single study, independent or otherwise, indicating  that mouth-alcohol detection reliably works.  Moreover, despite having this infallible mouth-alcohol detector, the State's witnesses concede that the machine operator must stare at the subject for at least 20 minutes to ensure he/she is not doing something (belching, regurgitating, vomiting) that could reintroduce alcohol to the esophagus or mouth.  If the mouth-alcohol detector works every time, why spend thousands of man hours looking for burps?!  

The State has people who travel to the various police stations to conduct mandated 120-day "accuracy checks" and "calibration" of the machines.  These are the people who typically testify as experts at the trial.  They will quickly agree that they never perform any tests to determine whether the mouth-alcohol detector actually works, and they know of no other study demonstrating the same.  Further, the State will not allow anyone else to a have access to one of the machines to do testing to determine the reliability of mouth-alcohol detection.

Wisconsin law requires judges in OWI/PAC trials to admit any breath test administered on the EC/IR II within 3 hours of driving, not matter how unusual that particular test may look (i.e, seven breath samples to get a result).  The Judge is also required to instruct the jurors that the test is based upon sound scientific principles.  Of course, the prosecutors hammer that point over, and over:  "The State of Wisconsin says this thing is scientific and admissible.  What more do you need?  Convict!"  (So, please, don't expect me to prove it.  And, ignore all the evidence the defendant is showing you to suggest otherwise.)  

Thankfully, some juries remain open minded.  In my trial last week, the jury refused to be sold on these tactics.  They rejected a .22 test, and for good reasons.  Many will not challenge their breath test result because they know the deck is stacked.  If the State of Wisconsin wants to use breath testing for OWI/PAC cases, it should prove that it is reliable. 

1. Wis JI—Criminal 230, 232 (When an approved testing device is involved, the jury is instructed that "[t]he law recognizes that the testing device used in this case uses a scientifically sound method of measuring the alcohol concentration of an individual. The State is not required to prove the underlying scientific reliability of the method used by the testing device. However, the State is required to establish that the testing device was in proper working order and that it was correctly operated by a qualified person.