MINNESOTA AG CONSPIRES WITH BREATH TEST MAKER TO DENY FULL ACCESS TO COMPUTER SOURCE CODE

MINN ATTORNEY GENERAL & CMI SEEK PERMANENT INJUNCTION

"THE AG DIDN'T FILE SUIT TO FIGHT FOR THE SOURCE CODE, IT SUED TO KEEP US FROM GETTING IT." - Charles A. Ramsay

Today the Minnesota Attorney General and CMI filed the terms of their Source Code settlement in federal court. The agreement permits CMI to deny full access to the inner workings of the Intoxilyzer 5000. In March the Minnesota Attorney General apparently to enforce the contract with CMI, the breath test machine manufacturer. Instead, the AG is now asking a federal court judge to order a permanent injunction to prevent lawyers and citizens from requesting or obtaining independent review of the software which controls all of the machine's functions.

Charles Ramsay, a Minnesota lawyer, filed a motion in June to intervene. At the time Ramsay predicted the AG would not act in the best interests of Minnesotans . Both the state and CMI oppose Ramsay's motion.

"The AG didn't file suit to get the source code, she sued to keep it secret," said Ramsay upon learning of the settlement. "Our citizens are worse off now than before the AG filed suit. This is precisely the reason the court must grant intervention."

The federal court judge will hear arguments in December to evaluate the merits of the proposed settlement.

The settlement documents are posted at the Minnesota DWI Defense blog.

Read The Settlement Agreement

Charles A. Ramsay
Attorney at Law
Charles@RamsayResults.com

CHARLES A. RAMSAY & ASSOCIATES, PLLC

Minnesota DWI Defense Blog

450 Rosedale Towers
1700 West Highway 36
Roseville, MN 55113
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http://mndwi.blogspot.com/
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Minnesota Supreme Court Agrees to Hear Underdahl II

Court of Appeals’ Decision No Longer Precedential Authority

On August 5, 2008, the Minnesota Supreme Court issued an order granting review of the Minnesota Court of Appeals’ decision in State v. Underdahl, 749 N.W.2d 117 (Minn. App. 2008).

In that decision, the Court of Appeals held that when a defendant seeks discovery of computer source code for the breathalizer, a trial court’s determination that the source code is discoverable (pursuant to Rule 9.01 of the Minnesota Rules of Criminal Procedure), must be premised on showing that examination of the Intoxilyzer’s software would show defects in its operation or at least would be necessary to determine whether defects exist. In such a ruling, the Court of Appeals drastically limited the availability of this crucial element of a defendant’s defense to a trumped up DWI charge, and overturned a trial judge’s decision that the source code was relevant and therefore defendants have a constitutional right to access to the source code.

As a result of the Minnesota Supreme Court’s decision to review this backward decision of the Court of Appeals, the Court of Appeals decision has no precedential value and is no longer binding. Trial Court’s are therefore once again free to determine whether the Source Code is relevant to the defense, without regard to the Court of Appeals’ restriction.

Charles A. Ramsay
Attorney at Law
Charles@RamsayResults.com

CHARLES A. RAMSAY & ASSOCIATES, PLLC
450 Rosedale Towers
1700 West Highway 36
Roseville, MN 55113
o: 651.604.0000
f: 651.604.0027
c: 651.336.6603

www.RamsayResults.com

Virginia’s Smoking Gun

The Commonwealth of Virginia uses Intoxilyzer 5000 for their Breath Alcohol Content testing, just like Minnesota. The difference? Virginia has apparently caught on to the problems presented by this equipment.

In an application for additional funding, the Department of Forensic Science requested $196.870 (in addition to another $984,350 over five years) to replace the Breath Alcohol Equipment. According to the application, the Forensic Scientists in Virginia had “developed a plan to replace evidential breath test instruments used by police officers throughout the Commonwealth in the enforcement of the State’s DUI statutes.” When asked what the consequences of denying the funding would be, the Department commented that granting the request would allow the state to replace the Intoxilyzer 5000 that are 9-10 years old (the request was made in 2007; the machines are now 10-11 years old).

Finally, the Department was asked what the expected results would be if the state granted their request. Their response was “[t]o replace dated, unstable and unreliable Breath Alcohol instrumentation used by police officers throughout the Commonwealth to certify whether a driver is or is not impaired.” I applaud the Commonwealth of Virginia for stepping up and admitting that the equipment they were using was “unstable and unreliable and in taking steps to correct the problem.

One has to wonder, if Virginia’s machines are admittedly faulty, how is it possible that Minnesota’s machines are functioning correctly beyond all reasonable doubt?

Charles A. Ramsay
Attorney at Law
Charles@RamsayResults.com

CHARLES A. RAMSAY & ASSOCIATES, PLLC
450 Rosedale Towers
1700 West Highway 36
Roseville, MN 55113
o: 651.604.0000
f: 651.604.0027
c: 651.336.6603

www.RamsayResults.com

How to Win Your Case With a Breathalyzer Test of .115

What the BCA is afraid you’ll find out

First, a little bit of background. I represent a client that got picked up for suspicion of DWI. The police gave him a breathalyzer test at 12:40 a.m. that returned a result of .110 (Minnesota’s legal limit is .08). They gave him a second test four minutes later that returned a Blood-Alcohol level of .115. Seemingly, his proverbial ship is sunk, right?

Think again. After being released by the police, my client went and got a Blood-Alcohol test done on his own. At 3:04 a.m., 2 hours and 24 minutes after the first intoxalyzer test, his Blood-Alcohol level was as .046. Comparing the test results, this means his BAC dropped .064 since the 12:40 test, and .069 since the 12:44 test. These figures correspond to a drop rate of .0267/hour and .0296/hour respectively.

Now, lets look at the science behind blood-alcohol levels. Studies have shown that the average dissipation rate for BAC is .015/hour. The average range, dependent upon a number of factors (age, weight, sex, how quickly the drinks were consumed, etc), is .01 to .02/hour. Clearly, my client’s dissipation rates fell well outside this average range. Even at the very edges of the realm of possibility, alcohol will leave your body at a rate of .009 to .03 per hour. This dissipation rates shown above barely fall within that range.

What does this mean? To put it simply, it’s another piece of evidence that breathalyzer results are not infallible. So where do we go from here? Now that there is evidence of doubt about the reliability of the tests, lets work backward and see where that gets us. As I said, at 3:04 a.m., a Blood Alcohol Analysis returned a result of a .046 BAC. If we take that test result and work backward to the legal limit, we’ll find where his BAC may have actually been when the police arrested him. Minnesota’s legal limit is .08 BAC, .034 higher then his 3:04 a.m. test. Taking that difference and dividing it over the 2 hours 24 minutes between the first and third test, you get a dissipation rate of .0142/hour. While this is within the normal range (it’s almost the average rate exactly), it means there is almost a 45% chance that at 12:40, when the police arrested him, his BAC was below the legal limit. 45 percent is clearly reasonable doubt.

Charles A. Ramsay
Attorney at Law
Charles@RamsayResults.com

CHARLES A. RAMSAY & ASSOCIATES, PLLC
450 Rosedale Towers
1700 West Highway 36
Roseville, MN 55113
o: 651.604.0000
f: 651.604.0027
c: 651.336.6603

www.RamsayResults.com

Republican National Convention: A Need to Protect Fundamental Civil Rights

The United States has a long and proud tradition of protecting an individual’s right to vocally and publically disagree on politically sensitive issues. The First Amendment rights of free assembly and free speech enshrine a protestor’s right to make their opinion’s known.

Unfortunately, these cherished rights aren’t as respected as they should be, and often those genuinely concerned protesters who are committed to the struggle for change can be unconstitutionally ensnared in the legal system. Along with all of the press coverage surrounding the Republican National Convention being held in St. Paul, MN, Minnesota law enforcement officials and courts are gearing up for record numbers of arrests of protesters. Additional police are being brought in from around the State, and many courts intend to hold evening and overnight court sessions to process the large volume of individuals expected to be charged with crimes.

If you plan to exercise your constitutional rights and protest at the Republican National Convention, (or if you even plan to be in the area during the convention), you run the risk of being arrested and charged with a wide variety of crimes; such crimes include tresspassing, unlawful assembly, interference with the use of public property, obstruction of legal process, resisting arrest . . . the list goes on, and is limited only by the creativity of local police and prosecutors.

If you find yourself arrested or charged with a crime during the hectic upcoming weeks, you’ll want to ensure that your rights are being protected in a court system swamped with similar cases. The attorney’s at Ramsay & Associates want you to know that we’re available, 24 hours a day, throughout the convention, to ensure that any illegal arrests, bogus charges, or even honest mistakes, don’t result in unconstitutional convictions or unnecessary entanglement with the court system. We’ve got a long history of standing up for individual rights against government encroachment, and plan on being there for you when you need legal representation.

Charles A. Ramsay
Attorney at Law
Charles@RamsayResults.com

CHARLES A. RAMSAY & ASSOCIATES, PLLC
450 Rosedale Towers
1700 West Highway 36
Roseville, MN 55113
o: 651.604.0000
f: 651.604.0027
c: 651.336.6603

www.RamsayResults.com

Minnesota Names Police Officers with Most DWI Arrests

The Minnesota DPS provided a list of its "all-stars" for DWI enforcement. The DPS seems concerned more with quantity than with quality of service.

Any cop can stop a driver and make up a reason. This list recognizing cops with the greatest number of stops and arrests is disgusting. Thousands of Minnesota cops perform their jobs better than expected under harsh conditions. Yet they do so go about their duties putting justice and service to the public first, relegating their own interests secondary.

These officers are the true ALL-STARS!

They are polite with the public while ensuring that justice is served. These police officers understand sheer numbers don't ensure public safety. They testify truthfully, and take their jobs seriously. Unfortunately, they go unrecognized. This "honor" by the department of public safety discourages such bahavior, while encouraging injustice and promoting further distrust of our valuable peace officers.

Here is the DPS' press release:


From the Minnesota Department of Public Safety:

Minnesota 2008 DWI Cop "Enforcer All-Stars"

The 2008 DWI Enforcer All-Stars were selected based on DWI arrest results from 2007.

Greater Minnesota DWI Enforcer All-Stars — and Number of 2007 DWI Arrests

Officer Yermahne Berhane, Rochester PD — 74
Officer Tiffany Blaschko, Mankato Department of Public Safety — 36
Trooper Bradley Bordwell, Minnesota State Patrol — 43
Officer Brian Martin, Mankato Department of Public Safety — 51
Deputy Geoff Dowty, Sherburne County Sheriff’s Office — 109
Officer Todd Erickson, Elk River PD — 76
Officer John Fritz, St. Cloud PD — 46
Trooper Mark Hopkins, Minnesota State Patrol — 41
Officer Justin Hunt, Faribault PD — 56
Officer Scott Kostohyrz, Moorhead PD — 64
Deputy Charles Lahman, Cass County Sheriff’s Office — 56
Officer Joe Miketin, Hermantown PD — 39
Officer Andy Morgan, Grand Rapids PD — 35
Officer Cory Schmitz, New Prague PD — 41
Officer Joseph Swenson, Lake Crystal PD — 17
Deputy Scott Wolfe, Blue Earth County Sheriff’s Office — 35

Metro DWI Enforcer All-Stars — and Number of 2007 DWI Arrests

Trooper Adam Flynn, Minnesota State Patrol — 208
Officer Richard Gabler, Brooklyn Center — 57
Officer Todd Groves, Eden Prairie PD — 63
Officer Josh Hunter, Corcoran PD — 45
Officer Joel Horazuk, Apple Valley PD — 49
Officer Adam Jacobson, Coon Rapids PD — 113
Trooper Kyle Klawiter, Minnesota State Patrol — 196
Officer John Kolar, Shakopee PD — 54
Officer Scott Langner, Maplewood PD — 82
Officer Nicki Marquardt, Shakopee PD — 67
Officer Justin Parranto, Inver Grove Heights PD — 69
Deputy Tim Samuelson, Dakota County Sheriff’s Office — 50
Officer Fran Schmitz, Woodbury PD — 86
Officer Richard Schwab, South St. Paul PD — 86
Officer Darcy White, Prior Lake PD — 63
Officer Steve Wuorinen, Minneapolis PD — 60

The state patrol said it is providing even more DWI / DWI Patrols on Minnesota Roads Throughout July.

Minnesota AG Encouraged Concealment of Intoxilyzer's Critical Defects

Minnesota DWI Lawyer Exposes "Smoking Gun" Proving Need for Software Review

Criminal Defense Attorney Chuck Ramsay announced today that he will intercede in the Minnesota Department of Public Safety’s federal lawsuit against Intoxilyzer manufacturer CMI of Kentucky, Inc.

In March 2008, The Minnesota Attorney General filed a federal suit against CMI on behalf of the Minnesota’s Commissioner of Public Safety. The suit alleges that CMI breached the contract for the sale and maintenance of a fleet of evidentiary breath test instruments to be used by the State, for the purpose of investigating and prosecuting drunk driving cases.

CMI agreed in the contract to sell and maintain the fleet of instruments and to release the software when ordered by the courts. CMI also expressly agreed that any intellectual property material originating and arising out of the contract would become the sole property of the State. CMI breached both of those obligations.

Ramsay believes the state filed suit only in response to judges’ complaints of the attorney general’s lackluster response to aggressive litigation by leading criminal defense attorneys demanding access to the software.

Ramsay states that as early as 2006, the Minnesota Bureau of Criminal Apprehension (BCA) knew its 200 plus Intoxilyzers were broken. Minnesota’s Intoxilyzer 5000 displays a driver’s alcohol results on its LED readout, yet sporadically records a higher result on the final test record. The state discovered this and other fatal defects after hastily installing the current Intoxilyzer software in 2005. The BCA documented the critical errors in an email it sent to CMI.

Ramsay labeled the document the “smoking gun,” which evidences the need for independent review of the Intoxilyzer’s software.

Despite the critical flaws, the State continues to use the bug-riddled software as the foundation of its breath testing program. According to the BCA’s 2006 annual report, the state tested nearly 34,000 citizens with the current Intoxilyzer and software.

The BCA has not fixed the broken machines on the advice the AG’s office according to one BCA source. The AG, fearing an escalation in the so-called source code challenge, advised the BCA to wait until the software challenge had lost momentum. Concealing the information was essential to winning the software battle against defense attorneys.

Ramsay is intervening on behalf of four of his clients in the federal lawsuit the state filed against the manufacturer. “Its clear the AG will not protect the rights of Minnesotan’s in that law suit. I’m intervening to ensure justice prevails. Otherwise, the AG will use this case only for appearance.”

“These black boxes not only deprive citizens’ of their right to drive, but also wrecks lives and puts innocent people in jail. The Minnesota Attorney General, our state’s chief prosecutor, chooses to protect the interests of a secretive, foreign company rather than fight for the constitutional rights of Minnesota citizens. Most alarming, is that the AG encouraged the cover-up of a fatally flawed breath machine, a contraption that the public, police and courts believed, and still believe, to be 100% accurate.”

Ramsay demands the state shut down its breath testing program immediately. Until the state fixes the errors and a reputable, independent agency certifies the machines to be scientifically valid, reliable and accurate, the test results are worthless.

If the state is trying to use an Intoxilyzer test to take your license or put you in jail, contact Chuck Ramsay immediately. With his knowledge, experience and skill, he can restore your license, liberty and dignity.


Charles A. Ramsay
Attorney at Law
http://www.ramsayresults.com/CM/Custom/Contact.asp

CHARLES A. RAMSAY & ASSOCIATES, PLLC
450 Rosedale Towers
1700 West Highway 36
Roseville, MN 55113
o: 651.604.0000
f: 651.604.0027
c: 651.336.6603

http://www.ramsayresults.com/