Thursday, January 27, 2011

DUI Appeal of the Day (DAD) - Defense Barred from Attacking Urine Alcohol Testing

In State of Minnesota v. Dixon, Not Reported in N.W.2d, 2011 WL 68050 (Minn.App.), the defense attorney argued on appeal that the trial court erred in barring from presenting any evidence regarding or attacking the reliability of the urine testing method, including the barring of defense experts. The theory that the defense intended on presenting was, inter alia. That first-void urine alcohol testing is unreliable and inaccurate. The appellate court upheld that trial court decision, and barred such evidence in its entirety. It stated as follows:

“Minnesota courts have rejected challenges to the use of urine tests based on the “urine-pooling theory,” which suggests that a urine test is scientifically invalid if the suspect is not required to void his bladder once and wait 20 to 30 minutes before providing urine for testing, to assure the accuracy of the test. Hayes, 773 N.W.2d at 138-39; Genung v. Comm'r of Pub. Safety, 589 N.W.2d 311, 313 (Minn.App.1999), review denied (Minn. May 18, 1999). In Hayes, this court ruled that the district court did not abuse its discretion by excluding expert testimony that would have attempted to challenge the validity of the urine testing based on this theory. Hayes, 773 N.W.2d at 139. In Genung, this court stated that BCA urine-testing procedures “have been found to ensure reliability” and “do not require voiding once before producing the test sample.” 589 N.W.2d at 313. In Hayes, this court relied on Genung to conclude that, even if the proffered expert testimony on the urine-pooling theory were relevant, “it is insufficient as a matter of law to prove that the ‘testing method’ is not ‘valid and reliable’ “ under the implied-consent statute. Hayes, 773 N.W.2d at 138. Because current Minnesota law upholds the reliability of first-void urine test results, the district court did not abuse its discretion by refusing to allow appellant to introduce expert witness testimony on the reliability of the urine-pooling theory or by refusing to permit appellant to cross-examine the state's BCA expert witness on that theory.”

This case represents the dangerous slope that courts have taken to beat down defense attacks on modern science. The mere fact that a court has reviewed a scientific theory under Daubert or Frye and it has been found acceptable for admissibility purposes, does not equate to proof that such method of testing is infallible. This ruling confounds those two principles (i.e. reliability and uncertainty) and improperly denies the defendant his right to a defense. Sad.

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