Dwi: Challenging The Urine Test In Minnesota

Dwi: Challenging The Urine Test In Minnesota

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Defenses are very strong in cases where urine testing is used to determine blood alcohol content.

PAST CHALLENGES INEFFECTIVE

In the past, Minnesota Courts have upheld urine testing in Minnesota based on a blind faith in the reliability of procedures established by the Minnesota Bureau of Criminal Apprehension (BCA). Relying on an Administrative Rule, the courts have concluded, in essence, "if the BCA says the method is accurate, who are we to question it." (Minn. R. 7502.0700 (2005)).

The consequence was that urine testing procedures could not be challenged if:

(1) the sample was collected and tested pursuant to procedures established by the Minnesota Bureau of Criminal Apprehension; and
(2) the validity of the sample was not being questioned.

NEW SCRUTINY

However, urine tests have once again come under court and scientific scrutiny. In 2009, law enforcement officers are turning far more often to urine or blood testing in the wake of court decisions challenging breath tests and requiring prosecutors to provide defense attorneys with intoxilyzer computerized source codes. As a direct result, a spotlight has been shined on the validity of urine testing for DWI purposes. In June, 2009, a Minnesota Dakota County Judge suppressed a urine test as evidence. In the court's Order, the Judge expressed grave concern over past Appellate cases that granted deference to testing methods established by the BCA. Specifically, the Judge opined that the Court should not draw boundaries that fence off review of constitutional protections. Although the Judge did not deviate from prior cases in determining the testing method used were invalid, he did, determine that another challenge existed.

Critically and consequently, the Court ruled that the science behind urine testing was invalid and could not stand up to scientific scrutiny required under the Frye-Mack test (see Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923; State v. Mack, 292 N.W.2d 764, 768 (Minn. 1980).

LACK OF SUPPORT IN SCIENTIFIC COMMUNITY

The fact is that a vast number of experts DO NOT support urine alcohol testing in cases involving motorists accused of driving while impaired.

Moreover, only a small minority or forensic toxicologists support urine testing in cases involving parties accused of driving while impaired if a "first void" is not conducted. A "first void" refers to testing done after a person first urinates, purging the bladder of potentially accrued alcohol. The first sample is discarded and a second urine sample is then submitted for testing. In Minnesota, a "first void" testing method is not used. In fact, Minnesota is one of only five states that does not use a "first void" testing method and one of only eleven states that allow some kind of urine testing in DWI cases.

It is compelling that overwhelming and documented scientific opinions have concluded that urine testing is not accurate to determine blood alcohol content. For example, the National Safety Council subcommittee on alcohol and other drugs is composed of forensic scientists from throughout the United States. That subcommittee has concluded that urine testing is not an appropriate sample in driving while impaired case.

Moreover, the Society of Forensic Toxicologists (SOFT) represents the largest peer organization in forensic toxicology. SOFT has indicated in its guidelines that neither a qualitative or quantitative analysis of urine permits an evaluation of the effects of alcohol on human behavior. Ultimately, the consensus in the scientific community is that urine testing does not indicate whether a person is impaired.

Scientific tests have determined that in a significant number of case alcohol testing suffers from a significant residual standard deviation. In plain English, that means that in a significant number of cases alcohol concentration results from urine testing significantly deviated from the subject's true blood alcohol level. By way of example, it was possible for a person to have a .12 urine-alcohol concentration while simultaneously having no alcohol in their blood.

There are a myriad of other testing issues that call
into question the accuracy of urine tests in Minnesota. For example, urine samples are sent to the Bureau of Criminal Apprehension for testing. The BCA does not check the sample for glucose levels in the urine samples despite Federal rules that require such a test for any testing occurring under Federal Guidelines. The presence of glucose in a urine sample may indicate fermentation has occurred and, as a result, that the sample is unreliable for testing purposes. Even more compelling, in 1991 Lowell C. Van Berkom, the Director of the Minnesota BCA laboratory at the time, conceded in a published paper that laboratory findings of urine alcohol concentration are speculative when a precise blood alcohol concentration is required.

CONCLUSION

The end result is that urine tests are again under fire. It is likely that the Dakota County District Court's order, though not persuasive authority, will have a ripple effect where urine tests are challenged more frequently in counties throughout Minnesota. Eventually, it is likely that this issue will find its way to the Courts of Appeal.

About the Author:
Maury D. Beaulier is a reknowned DWI and criminal defense lawyer in Minnesota. He is described by his cleints as affordable and aggressive. To consult with Maury Beaulier visit his website at http://www.dwicounsel.com or call 612.240.8005.



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