Minnesota Supreme Court makes another ruling on implied consent

A couple of weeks ago we wrote about a slight change in the implied consent rule thanks to a new interpretation of the rule by the Minnesota Supreme Court. In a follow-up to that post, this post will look at another decision the Minnesota Supreme Court made in relation to implied consent -- but this time, it has to do with breath tests and an individual who refuses to take one.

Implied consent compels an individual to take a breath test when they are accused of a DUI. As part of your agreement to have a driver's license, you thus "consent" to any breath test that an officer tells you to take. It's part of the privilege of driving. However, there was a significant challenge to this view of implied consent here in Minnesota. Unfortunately, it did not favor those who are accused of drunk driving.

The Minnesota Supreme Court ruled that a breath test does not constitute an unwarranted search and, thus, people do not have the right to refuse such a request by the police. This doesn't change anything, really. It's still the status quo with breath tests.

But this serves as another important reminder about how the criminal system treats DUIs. The rules are very rigid and there is very little leniency with these offenses. If you are accused of driving under the influence of drugs or alcohol, then you need to get an attorney right away to protect your rights and help you with the case.

Source: Albert Lea Tribune, "Minnesota Supreme Court: DWI testing laws are legal," Associated Press, Feb. 12, 2015

Tags: Breath Test Refusal

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What Makes "Standardized Field Sobriety Tests" Standardized?

Throughout the course of this series we've discussed the differences between the FSTs (field sobriety tests) and SFSTs (standardized field sobriety tests). The three SFSTs are the horizontal gaze nystagmus, the walk and turn, and the one leg stand tests. The SFSTs have a level of validity other FSTs do not. "Standardized test" is defined by Wikipedia as "a test that is administered and scored in a consistent, or 'standard', manner." Clearly the goal is consistent and standard administration and evaluation in order to avoid bias and subjective determinations of impairment. The Standardized Field Sobriety Tests, touted by the National Highway Safety and Transportation Administration (NHTSA) and the International Association of the Chiefs of Police (IACP), are good but have their flaws. In this segment, we will look at the studies that make the SFSTs "standardized."

The cornerstone of the standardization is an objective, scientific level of credibility. In order to come into evidence, to be considered in a court of law, it must meet the Kelly-Frye Standard. The Kelly-Frye standard is from Frye v. United States (1923) 293 F.1013, and was adopted by the California Supreme Court in People v. Kelly (1976) 17 Cal.3d 24. The Kelly-Frye standard states that test results entered into evidence must be generally accepted within the relevant portions of the scientific community, and exclude from evidence any test results from scientifically unproven methods. Standardization, and the repeatable results that come with peer reviewed studies, is therefore very important for the credibility, acceptability, and getting the SFST results into evidence.

The SFSTs have peer reviewed studies- as a matter of fact they have three. The three studies are from 1995, 1997 and 1998. The 1995 test was completed out of Colorado, the 1997 test out of Florida, and the 1998 out of our own San Diego. Each one of the studies have a question to answer. Anyone familiar with scientific studies (or politics) also know that studies tend to answer said question in the direction the creator wishes it to. These studies are no different.

In 1995 the Colorado study was intended to answer the question, do experienced officers utilizing the walk and turn, horizontal gaze nystagmus, and one leg stand, in a laboratory and field setting, make correct arrest decisions? The study found that officers using the full battery of three tests made the correct arrest decision 93% of the time.

In 1997, the Florida study was to answer the question, are SFSTs valid and reliable indices for the presence of alcohol when used under present day traffic and law enforcement conditions? The Florida study, not surprisingly, found that the SFST full battery test is the only scientifically validated and reliable method for discriminating between impaired and unimpaired drivers. None of the other field sobriety tests (the handpat, fingercount, romberg, etc.) worked on the same level as the SFSTs. The correct arrest decision was made 95% of the time when all three tests were utilized.

Lastly, the 1998 San Diego study was to exam the new, nationwide blood alcohol content of .08% BAC - dropped from .10%. The question being, could the SFSTs discriminate at BACs less than .10%? The study found the three SFSTs could differentiate, and officers made the correct arrest decision 91% of the time. Interestingly, the study also found that three tests could differentiate to .04% and above.

The San Diego study was the first one to be exclusively a field study- not involving any laboratory testing. However, one of the problems with the study is that it involved experienced officers. It is not known what are the average years of service of the officers that took part in the study, nor what percentage of an average police force have the same level of experience as the officers that took part in the study. A more realistic look at the SFSTs would have examined all officer's arrest decisions, as opposed to just "experienced officers."

An examination of the studies shows that there is an internal bias, and there is room for subjective evaluation. Those will be discussed with each individual SFST, and each test will have their separate blog entry. It is important to note that NHTSA either fully or partially paid for all of the studies.

As a SFST instructor, I know the benefits and detriments of each one of these tests intimately. If done properly, they can be very accurate. However, it is the administration of these tests that are their great downfall in the average DUI arrest scenario. Invariably, officers deliver an abbreviated, or inaccurate SFST battery that leads to biased results. And it is only an experienced, properly trained attorney that can tell the difference. Please contact me here if you wish to have your DUI case evaluated.

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Another Misguided DUI Driver Makes a Failed Attempt to Bribe a Cop

By guest-writer

Just one week after one drunk driver made headlines for trying to bribe his way out of a DUI ticket, another intoxicated driver made an unsuccessful attempt to purchase a “get out of jail free” card.

Ashley Anderson, a 21-year-old resident of Orlando, Florida, was pulled over by police for driving while intoxicated at about 3:00 a.m. Thursday morning, according to a report from the Orlando Sentinel.

Anderson was initially pulled over for traveling 12 miles per hour about the speed limit. And sources say that she could have simply been charged with a misdemeanor if she had handled the arrest in a responsible fashion. Anderson, however, did not handle the arrest in a wise manner.

After police pulled her over, she refused to leave the car, forcing the officer to ask her multiple times to leave her vehicle.

When she kept refusing to leave her 2008 Nissan Altima, the arresting officer reached for her ignition, grabbed the keys, opened her door, and pulled her out by her left arm. The officer later stated in his report that he feared that Anderson would try to flee the scene.

When he pulled Anderson from the car, the state trooper reported that he smelled an “obvious odor” of alcohol on her breath, and he also claims that she stumbled on the ground when she left the car and had difficulty walking to the police cruiser.

A quick search of the Altima after the arrest revealed a nearly empty bottle of tequila in Anderson’s car. Carrying an open bottle of liquor in a car is illegal in almost every state.

But despite her arrest, and the discovery of the tequila in her car, Anderson was still only facing a misdemeanor DUI charge. That is, until she opened her mouth.

Sources say that when the trooper put Anderson in the back of his car, she made several attempts to offer him $3,000 in exchange for letting her go. According to the police report, she told the officer, “[w]hatever I owe you, I can just pay you in cash.”

In an effort to convince the officer, Anderson claimed that she had escaped a previous DUI charge by giving the officer $2,000, although there is no way to confirm this story.

Needless to say, the officer in this case declined her offer, and prosecutors will now level an extra charge against Anderson for attempting to bribe a law enforcement officer, which is a felony in Florida.

View the original article here

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New Spray Makes You Instantly Drunk

A new alcohol spray claims it can get you drunk without the side effects. I wonder how it will affect DUI cases.

The inventor of a new spray claims that he has developed a spray that can make a person instantly drunk for a few moments:

A French American scientist has invented a new alcohol spray that instantly intoxicates the user. However, the effects are nearly as brief, wearing off in a matter of moments.

The spray, WA|HH Quantum Sensations, was created by David Edwards and was unveiled during a recent Paris exhibition.

The short-term effects are reportedly due to the 0.075 millileter dosage. In other words, it would take 1,000 sprays to equal the level of alcohol contained in one conventional drink.

Every time a new technology in drinking or drugs hits the market, there are a number of questions that arise:

How users will test on breath machines?Will this be detectable in a blood sample?Will it simply show as EtG or EtOH in the BrAC or blood sample indistinguishable from old fashioned consumption with a much longer pharmacodynamic effect?How MADD and other DUI lobbies will react to this?Will there be legislation in regards to the use of this spray?

and one last question for the DUI attorneys out there:

How long before you get a client who was wrongfully charged with a DUI after using this spray if it is true the the intoxicating effects leave nearly as soon as they come on yet the result from the chemical tests look indistinguishable from old fashioned drinking-based consumption?

View the original article here

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