DWI Urine Sample Re-test: Judge Tosses Government's Alcohol Results

Posted On September 22, 2010 by Charles Ramsay

Earlier this year our series "Freedom Through Independence| told of the benefits of re-testing the state's alcohol samples in DWI cases.

Part 1: Crises in Our Nation's Forensic Science System

Part 2: Erroneous DWI Blood Test Results

Part 3: Erroneous DWI Urine Test Results

Part 4: Erroneous DWI Intoxilyzer 5000 Breath Test Results

Our |Freedom Through Independence| series chronicled our ability to use retested samples to win DWI cases for our clients. Since then, the government has repeatedly thrown in the towel and dismissed our DWI cases whenever our retest has contradicted the state's alcohol test result. After publishing our blog series, more and more lawyers followed our advice and began retesting DWI blood and urine samples.

As a result, the state faced many more cases where the state's DWI test results were contested, forcing the government to change its tactics. Now, the government is actually trying to fight back in cases where our independent retest refutes the state's own test.

The Judge Rules: Two Different Test Results = State Loss

The state is now finding out the hard way that if they try to fight against retested samples, the end result is no different than if it had just dismissed its case from the outset. Last week a judge rendered the first written decision in years on this issue, and clearly held that if a retested sample produces different results than the state's test, the state is going to lose.

In that case, the driver submitted to a urine sample after being arrested for DWI. The officer collected the sample, and submitted it to the Minnesota Bureau of Criminal Apprehension ("BCA") for analysis. The BCA's analysis resulted in an alcohol concentration of 0.08.

Several months after the BCA performed its analysis, the driver's frozen sample was independently analyzed by Regions Hospital. Regions Hospital's analysis resulted in an alcohol concentration of .06. The difference between .08 and .06 is huge, for two reasons. First, a difference of .02 between the samples proves that urine testing fails one of the main tenets of the scientific method: the ability to consistently reproduce statistically reliable results. Second, one test is above the legal limit, while the other is clearly below that limit.

A nervous BCA employee testified, offering several possible explanations for the dramatically different test results:

1) A difference in testing methods between the BCA and Regions Hospital (The BCA does not contest Regions Hospital's independent lab results, and in fact has approved its methods and procedures for testing urine for alcohol concentration.)

2) Evidence was destroyed when the BCA froze the urine sample after testing; and/or,

3) An improper seal on the sample container permitted ethanol to escape the container.

All these |explanations| make the BCA look bad, but the driver's attorney noted a fourth, even more troubling possibility; that the analysis performed by the BCA was inaccurate and the analysis performed by Regions Hospital was accurate.

The judge wrote in his order:

In this case the Court has been presented with two equally valid samples with disparate results. One result supports the revocation of the Petitioner's license while the other does not.


The Commissioner, however, bears the burden of proving it is more likely than not that the Petitioner was operating a motor vehicle with an alcohol concentration of 0.08 or more. The evidence presented is not sufficient to overcome this burden. It is equally possible the Petitioner had an alcohol concentration of 0.08 or 0.06767. The Commissioner has therefore failed to prove the requisite alcohol concentration justifying revocation of the Petitioner's license.

The judge correctly ordered the government reinstate the driver's license and remove any reference to the license revocation from his driving record.

More Questions:

This case raises as many questions as it answers. Had this been a criminal case, what would a jury have decided? We think that a court should not even permit the state to present this evidence to a jury, since no reasonable juror could find the state could meet its burden of proof beyond a reasonable doubt.

This raises other questions as well, such as |how long will the BCA continue to freeze DWI test samples after testing?| |What are the differences between the BCA and Regions' testing methods?| and |Whose testing method is more accurate?|

And of course, all of these questions lead directly to the one question I've been asking for years. It's a simple question, and yet it has gone unanswered for far too long.

Why does our state remain as one of the only places in the world that still use urine testing?

Congratulations to defense attorney, Ed Cohen, for his work against the Office of the Attorney General in the implied consent case.