Minnesota DWI Lawyers Pissed about Urine Cases: What Happens When Judges Assume the Role of Scientist
In a cruel, ironic twist, a Minnesota Court of Appeals ruling today makes the least scientific alcohol test the most unassailable. In Schroeder v. Comm'r of Pub. Safety, A09-238 (Minn. Ct. App. Dec. 15, 2009), the court rejected a driver's claim that urine testing is not a practice that is generally accepted in the scientific community as a valid and reliable method of determining alcohol concentration.
Minnesota uses three types of DWI alcohol testing methods: blood, breath and urine. Blood is widely recognized as the most reliable. Even breath tests, which suffer from some well known problems, are used around the world. However, most states do not use urine testing at all to determine a specific level of alcohol concentration.
As I've previously blogged, urine testing is not scientifically valid, reliable or accurate. The Society of Forensic Technologists (SOFT) and The Toxicology Section of The American Academy of Forensic Sciences (AAFS) are against it in their Forensic Toxicology Laboratory Guidelines. The National Highway Traffic Safety Administration is against it. No scientific peer reviewed article supports the use of urine alcohol testing. More than a dozen forensic journals have published peer reviews establishing that urine testing is bad science. Minnesota is the only state in the country to use it the way it does, and the way that Minnesota does it means that a person may have no alcohol in their blood, but still be charged for having a urine alcohol concentration over the legal limit!
One district court who tackled this issue head on had some choice words to say about this type of urine testing. The Honorable Judge Thuet, in the case of Carrell v. Comm'r of Pub. Safety, said:
"[T]he continued use of a testing procedure which experts agree may not measure the level of alcohol concentration, and thus intoxication of a driver at the time it is administered, and which the state's witness admitted may yield results that do not correlate with blood tests performed at the same time, constitutes an absurd result which the Legislature could not possibly have intended, especially given the stated goal of enhancing safety by removing intoxicated drivers from the roads. In light of this, the Court is compelled to rescind the revocation of the Petitioner's driving privileges.
Despite the opinions of some Minnesota judges and almost the entire scientific community, the court of appeals rejected our demand for a Frye-Mack hearing (which would require the State to show that urine testing is generally accepted in the scientific community). Instead, the court implicitly adopts the Daubert standard (a standard used in other jurisdictions â?? ironically, those that don't even use urine testing â?? that allows judges to simply take judicial notice of reliability of urine testing). By ignoring our Frye-Mack request, the court is attempting to make the presumption that urine testing is reliable irrefutable.
To understand just how troubling this ruling is requires a brief explanation of the standard that should have been applied by the Schroeder panel (the Frye-Mack standard) versus the standard that was actually applied (the Daubert standard) and why this is a dangerous precedent for the entire state of Minnesota.
Minnesota's Frye-Mack standard has been steadily evolving since the early 20th century, and by the 1980's the Minnesota Supreme Court summarized the test in State v. Mack, 292 N.W.2d 764, 768 (Minn.1980), by stating that, |the results of mechanical or scientific testing are not admissible unless the testing has developed or improved to the point where experts in the field widely share the view that the results are scientifically reliable as accurate.|
The Supreme Court summed up its holding in State v. Mack two decades later by stating that the ultimate purpose of determining the admissibility of mechanical or scientific evidence is to ensure that, |the particular evidence must have a foundation that is scientifically reliable.| State v. Roman Nose, 649 N.W.2d 815, 818 (Minn. 2002).
The Supreme Court then carefully and definitively created a two-pronged standard that must be used to determine if a particular piece of mechanical or scientific evidence has a foundation that is scientifically reliable. Id. Concisely stated, the Court held that, |a novel scientific technique that produces evidence to be admitted at trial must be shown to be generally accepted within the relevant scientific community, and second, the particular evidence derived from the technique and used in an individual case must have a foundation that is scientifically reliable. Id. at 818-819 (citing Goeb v. Tharaldson, 615 N.W.2d 800, 810 (Minn.2000) [reaffirming adherence to Frye-Mack standard after Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993)]).
Unfortunately, even a cursory reading of the Schroeder opinion shows that, rather than follow the Supreme Court's mandate in the seminal Frye-Mack case of State v. Roman Nose, the Court of Appeals instead chose to utilize the Daubert standard for admitting scientific evidence. This, despite the fact that Minnesota has not adopted the Daubert standard, because it is less rigorous than the Frye-Mack standard. State v. Traylor, 656 N.W.2d 885, 891 (Minn.2003). This, despite the fact that one of the judges on the Schroeder panel, when confronted with a specific request to use the Daubert standard instead of the Frye-Mack standard, held that |[T]he task of extending existing law falls to the supreme court or the legislature, but it does not fall to this court.|Yang v. State, 2008 WL 1972856 (Minn.App. 2008) (citing Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn.App.1987), review denied (Minn. 18 Dec. 1987).
The Schroeder panel started its cursory two-paragraph analysis by accurately stating that, |[t]he Frye-Mack test is aimed at reliability.|Schroeder at 5. This is a fairly close approximation of the Supreme Court's summation of Frye-Mack in the Roman Nose case, cited supra in this post.
What the Schroeder panel did next, however, was to eviscerate the standard two-prong Frye-Mack analysis and instead fall back upon the rejected Daubert standard. After reciting the fact that Frye-Mack is indeed concerned with |reliability,| the panel chose to ignore the fact that Frye-Mack has established a clear and specific procedure for determining that |reliability.| Instead, the Panel simply held, without analysis, that |reliability| as a general concept had already been established by two Court of Appeals cases, Genung v. Comm'r of Pub. Safety, 589 N.W.2d 311 (Minn. App. 1999) and Hayes v. Comm'r of Pub. Safety, 773 N.W.2d 134 (Minn. App. 2009), pet. for review filed (Minn. Nov. 6, 2009). This appellate determination that, nothwithstanding the views of the scientific community, urine testing has mystically become reliable science by judicial fiat is precisely what Minnesota's Frye-Mack regime is designed to avoid. Neither of the two cases cited by the Schroeder panel dealt with whether or not the testing method at issue had been proven to be |generally accepted in the scientific community,| the required first-prong burden that applies under Frye-Mack. Judicial fiat, not hard science, now appears to be the new test that applies to scientific evidence in Minnesota.
What is so troubling about this sudden development is that the Supreme Court has gone to great, detailed length to carefully explain exactly what type of analysis is required under prong one of Frye-Mack . . . and, as if able to predict the future, the Supreme Court even managed to explicitly reject the approach taken by the Schroeder panel.
Rather than paraphrase or run the risk of misinterpreting the plain language of the Minnesota Supreme Court, a few direct quotations are all that is necessary to demonstrate that the Court of Appeals is attempting to undermine the entire appellate process. The first quote comes from State v. Roman Nose, and explains why the Schroeder panel's simple and misguided reliance on prior cases (where the issue of general acceptance in the scientific community was not at issue, much less litigated) is improper: The Court stated:
|[T]he issue of whether a technique is generally accepted within the relevant scientific community is best determined by evidentiary hearing. See Goeb v. Tharaldson, 615 N.W.2d 800, 814 (Minn. 2000). There was no evidentiary hearing on general acceptance in this case and, contrary to the dissent's argument, hearings before other district courts will not substitute for the evidentiary hearing required here. Without an evidentiary hearing on the views of the relevant scientific community, trial and appellate judges become scientists, an approach we clearly rejected in Goeb. 615 N.W.2d at 813-14. State v. Roman Nose, 649 N.W.2d 815, 819, fn.3 (Minn. 2002)|
What immediately comes to mind is that the Schroeder Panel is indeed viewing itself as |amateur scientists| despite all warnings to the contrary by the Supreme Court. Relying on Hayes (where defense experts were actually precluded from testifying) and Genung (where the prosecution did not even present expert testimony, and where the defendant did not even contest the foundation for the urine test) simply cannot comply with the demand to hold an |evidentiary hearing on the views of the relevant scientific community.| Thus, we have a new breed of judge-scientist, a dangerous breed that the Supreme Court has warned the bar about since the dawn of the new millennium.
This type of logic - effectively using the doctrine of |judicial notice| to find that a scientific technique is indeed generally accepted in the scientific community - was shot down by the Roman Nose court years before it was utilized by the Court of Appeals. The Supreme Court in Roman Nose took the time to state clearly:
|The dissent argues that we should take |judicial notice| of the inherent reliability of the PCR-STR method of testing DNA unless something in the record indicates a reason to depart from the findings of other jurisdictions. But that is not the procedure we have established for determining the admissibility of scientific evidence. Moreover, there is an inadequate record to support taking judicial notice of the general acceptance of the PCR-STR method because appellant's request for a hearing on the issue was denied by the trial court.|State v. Roman Nose, 649 N.W.2d 815, 823, fn 9 (Minn.,2002)
As if the above quotations did not make the need for an evidentiary hearing clear enough, and the Supreme Court felt obligated to clearly explain to the lower courts how to conduct Frye-Makc analysis, the opinion in Roman Nose further elaborated on the need for an evidentiary hearing. Again, this is a hearing where the specific issue presented was whether or not a mechanical or scientific technique is generally accepted in the relevant scientific community. The Court repeated that:
|It is not enough for us to believe the test has gained general acceptance in the relevant scientific community. The state must establish that it has gained general acceptance, and it must do so by evidentiary hearing.|State v. Roman Nose, 649 N.W.2d 815, 820, fn.5 (Minn. 2002)|
In the case of Schroeder v. Comm'r of Pub. Safety, the Appellant was asking for nothing more than what the Supreme Court says is absolutely necessary - an evidentiary hearing. Appellant merely wanted the district court to compel the Commissioner to prove, once and only once, one specific proposition. And that proposition came directly from the Supreme Court: Is urine testing, as practiced by Minnesota, a mechanical or scientific technique that has gained general acceptance in the scientific community?| This question was never raised in Genung. It was never raised in Hayes. It was never ruled on by either court. For the Schroeder panel to so callously disregard the Supreme Court's expectation that Frye-Mack issues will be resolved via nothing other than an evidentiary hearing is a dangerous precedent indeed.
By eliminating the need for an evidentiary proponent to prove general acceptance of a technique, and replacing this test with the nebulous, impossible to define threshold of bald, |reliability,| the Schroeder panel has set dangerous precedent and has demonstrated exactly why Minnesotans do not want their judges to act as scientists.
We are continuing to fight the use of bad science to ruin people's lives. Let's hope the Minnesota Supreme Court accepts review and overturns the court of appeals absurd rulings.
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