Selective Facts Make Bad Law

Posted On June 27, 2011 by Daniel Koewler

The use of urine tests for DWI's in Minnesota received yet another endorsement from the Court of Appeals today. At issue in the case of Ellingson v. Comm'r of Pub. Safety was the question of whether urine tests fell into the "single factor exigency| doctrine that permits law enforcement to collect other types of samples (blood and breath) without first obtaining a warrant.

What makes the issue compelling - and highlights another reason why Minnesota is pretty much the only place in the world that is still using urine tests - has to do with the basic fact that the alcohol in a person's bladder is fundamentally different than the alcohol in a person's bloodstream.

The argument, simply put, is that while your average person's blood alcohol steadily decreases over time (due to action by the liver and kidneys) the same doesn't hold true for alcohol in a person's bladder. In fact, we've presented unrebutted expert testimony in court that urine alcohol, compared to blood alcohol, doesn't decrease at all.

In the Ellingson case, the court was only presented with the testimony of a government-paid, government employed lab technician, who convinced the court that urine alcohol |could| rapidly change in concentration. However, if you ask a toxicologist who isn't employed by the Minnesota Bureau of Criminal Apphrension, they'll tell you that any change in urine alcohol concentration could affect, at most, the third digit (example: a sample that would test at .105 could, over an hour, change by about .002).

Thus, the |single-factor exigency| doctrine, which was designed to apply in blood and breath test cases where alcohol concentration can go down by .015 in an hour, now applies to situations where any alcohol concentration may be decreasing by a comparatively minuscule amount.

This issue is far from finished. The Ellingson court based its finding on a very lenient standard of review (it gave great deference to the lower court's opinion of the testimony it was presented with). In another case, with more accurate testimony, the courts will still be free to find that urine alcohol concentration doesn't diminish rapidly enough to permit a warrantless intrusion. This is just another example of bad facts making for bad law.