Court Takes Notice of Shoddy "Science" of Breath Testing in Minnesota

Posted On February 01, 2016
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On January 25, 2016, the Minnesota Court of Appeals released its decision in Torgeson v. Comm'r of Pub. Safety.

There are two notable passages in the unpublished opinion.

[W]e find that field sobriety tests are Fourth Amendment searches that require only reasonable suspicion[.]

This is an oxymoron. A Fourth Amendment search, by definition, requires probable cause and a warrant. Legally, a search that requires only reasonable suspicion is not a Fourth Amendment search.

[I]n all future implied-consent hearings where the foundation for results for the DataMaster DMT-G is at issue, it would be the better practice for the commissioner to call a witness who is more fully prepared and qualified to explain the operation of the machine.

In other words, if the operator of the breath testing instrument in a specific case doesn't know how the instrument works, his or her testimony might not be enough to support the admission into evidence of the breath test results. (Under current Minnesota law, breath test results come in by legislative decree; the State is not required to provide evidence that the test instrument and result are actually reliable, accurate, and valid in any individual case.)

The Court's signal to the State â?? to actually lay evidentiary foundation for breath test results â?? suggests that the Court is taking the scientific rigor (or lack thereof) of the breath testing process more seriously. It's about time.

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