DWI Urine Testing Being Flushed Down the Toilet: Minnesota Supreme Court Wipes Up State's Remaining Argument in Favor of Urine Testing.

Posted On September 10, 2010 by Charles Ramsay

I've blogged about the unscientific nature of DWI urine testing for years and years. Being at the forefront of defense challenges to urine testing has brought numerous successes for our clients, but we've never had a Minnesota Appellate court rule with finality that urine tests are inadmissible. Change is in the air, however, and the ruling from the Minnesota Supreme Court yesterday will likely change our position for the better.

DWI Urine Testing: Rejected by Scientists

The primary issue with urine tests is that the scientific community simply does not accept urine testing in DWI cases as a valid means of determining alcohol concentration. Most states don't use it at all. Fewer than a dozen periodically use the method, but don't test the "first void.| It appears Minnesota stands alone as the only state to utilize solely |first void| testing.

A brief refresher for those new to our blog: Alcohol collects in the bladder and does not |burn off| like alcohol in the blood or breath. Instead, it remains in the bladder until voided. Without voiding the bladder and waiting 20-30 minutes before collecting a |second void,| there is no relationship between the amount of alcohol in the urine and the amount of alcohol in the blood. In fact, Minnesota BCA scientists concede that under |first void| testing, a person may have no alcohol in the blood, but be over the legal limit by urine.

Frye-Mack Standard

Under Minnesota law, before a scientific method or test can be admitted as evidence, a judge must find it to be |generally accepted by the relevant scientific community.| The Minnesota Supreme Court held in 2002 (State v. Roman Nose) that trial courts must grant motions for a Frye hearing unless and until the Supreme Court upholds a lower court finding of general acceptance for the specific scientific testing or method (for those unfamiliar with the Frye-Mack standard, check out our previous post).

We continually present scholarly articles, learned treatises and expert opinion from forensic toxicologists proving that urine testing is not |generally accepted in the scientific community.| If the judge listens to the evidence, this can and will lead to suppression of the test result. However, because the State has no real evidence supporting the use of urine tests, they use a different argument altogether - they try to claim that the Frye-Mack |general acceptance| test doesn't even apply to urine tests, so there is no need to even prove general acceptance. Since urine testing for alcohol concentration was implemented nearly a century ago, many courts have rejected our motion for a Frye hearing simply because they believed that urine testing is not a |novel| test, and doesn't need to be scrutinized. That's about to change . . .

Minnesota Supreme Court Clarifies When Courts are Required to hold Frye Hearings

The Minnesota Supreme Court issued an opinion yesterday that rejected the State's |it's not novel science if it's old science| argument this week in State v. Hull.

In State v. Hull, the jury found Jeremy Hull guilty of murder. Before the trial, the defense challenged whether fingerprint evidence and handwriting analysis was admissible under the Frye |general acceptance| standard. The trial court refused to hold a Frye-Mack hearing on the scientific validity of the fingerprint evidence, concluding (without reviewing any evidence) that |fingerprints have been generally accepted as scientifically reliable for a long time.| Similarly, it denied the motion on the handwriting analysis by summarily finding, it too, is generally accepted, again without a hearing.

Analyzing whether the trial court correctly rejected a defense motion for a Frye hearing of fingerprint evidence, Justice Paul Anderson wrote,

|[L]engthy use of a method by law enforcement, and even lengthy unquestioning acceptance by courts, does not [by itself] exempt expert evidence from scrutiny under the first prong of Frye-Mackâ?¦.|

Justice Anderson also cited with approval a report issued by the National Research Counsel of the National Academies (NRC), which stated, |In a number of forensic science disciplines, forensic science professionals have yet to establish either the validity of their approach or the accuracy of their conclusions, and the courts have been utterly ineffective in addressing this problem.|

Justice Meyer filed a concurring opinion, |because [precisely defining the Frye-Mack standard] has wide-ranging implications for future cases, we do a disservice to district courts and the administration of criminal justice in this state by declining to decide the issue on its merits| (she said this because the majority refused to actually state a rule, holding that the evidence against Hull was so overwhelming so as to make the issue irrelevant).

Justice Meyer went on to state, |The NRC Report states in no uncertain terms that the state and federal courts' longstanding acceptance of traditional forensic science expert opinions is simply not supported by good science.|

She concluded by noting that, |in order to present expert conclusions based on these methods to a jury, the proponent of the evidence must first meet its burden under the first prong of Frye-Mack to show that its forensic evidence methods produce accurate and reliable results. The district court erred in this case when it relieved the State of that burden.| (Emphasis added).

|But We've Always Done It That Way| Falls Short

The Court's message is crystal clear: The State can no longer rely on the |long-standing use| of a scientific method to prevent a Frye hearing. Longevity alone is insufficient; the State can't be permitted to |grandfather| junk science past the rigorous safeguards of the Frye-Mack test. Instead, the Supreme Court has again made it clear that the government must prove in a Frye hearing that a test if generally accepted by the relevant scientific community.

So how does this affect urine testing? Many courts have succumbed to prosecutors' argument, |But we've always done it that way| in denying motions for a Frye hearing. Thanks to the Hull case, I'm hoping this will also bring an end to another government adage, |Good enough for government work| which has allowed urine testing to be used against innocent citizens for years.