DWI Appeal - Minnesota Source Code Expert Disallowed

In State of Minnesota v. Hamblin, Not Reported in N.W.2d, 2011 WL 1833089 (Minn.App.) the defense sought funds to provide for an expert to attack the source code of the Intoxilyzer 5000EN. The trial court denied the motion.

On appeal, the court first stated the applicable law:

"In Minnesota, an indigent defendant may request funding from the district court for necessary expert-witness services. Minn.Stat. § 611.21(a) (2010). On finding that the requested services are necessary, “the court shall authorize counsel to obtain the services on behalf of the defendant.” Id. The burden of making a threshold showing to the district court of the need for expert assistance is on the defendant. State v. Volker, 477 N.W.2d 909, 911 (Minn.App.1991). A defendant must give specific reasons for needing an expert. Id.; State v. Richards, 495 N.W.2d 187, 197–98 (Minn.1992) (stating defendant must present trial court with some specific evidence that expert's testimony is necessary to the defense).
Hamblin argued he needed an expert to make a threshold showing to support his request for production of the Intoxilyzer 5000EN source code. He claimed that because expert services are required for such a request, the court's refusal to grant funds for an expert denied him the right to a fair trial.

The court responded as follows:

"Hamblin accurately asserts that in order to comply with State v.. Underdahl, 767 N.W.2d 677 (Minn.2009) ( Underdahl II ), he needed to obtain expert services. The district court's denial of Hamblin's original motion for discovery of the Intoxilyzer 5000EN source code preceded Underdahl II. Since Underdahl II, we have yet to conclude that a discovery motion seeking an Intoxilyzer source code is sufficient without testimony or an affidavit from an expert witness.FN1 Each time this court has found a denial of a pretrial discovery motion seeking Intoxilyzer source codes to be an abuse of discretion, the appellant has supported the motion with testimony or an affidavit by an expert. See, e.g., State v. Granse, No. A09–2192, 2010 WL 4451243 (Minn.App. Nov. 9, 2010); Scholl, No. A08–2138; Lund, 2009 WL 1587135. Retaining an expert, however, does not guarantee a discovery motion will be granted. Underdahl II requires a “plausible showing” that the Intoxilyzer source code “would be both material and favorable” to appellant. 767 N.W.2d at 684.

In denying the appeal, the court found:

"The extent of Hamblin's argument to the district court in the record on appeal is his attorney's remarks at trial, in which he stated Hamblin requested funds for “a computer forensic expert to evaluate or challenge the results of the Intoxilyzer 5000.” Put another way, it was a “pre- Underdahl II ” argument. Hamblin did not specify why the expert would be necessary to aid Hamblin's defense at trial. The record is barren of any information necessary to determine whether the district court abused its discretion in refusing Hamblin expert-witness fees. We affirm on that issue."

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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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DUI Appeal of the Day (DAD) When the Expert Can't Add or Subtract

In State of Maine v. Caron, --- A.3d ----, 2011 WL 82197 (Me.), 2011 ME 9, the defendant was charged with DUI following a rollover accident resulting in serious injuries to the vehicle's other occupant. At trial, the issues included whether defendant (or the victim) was the driver, and also extrapolation of the defendant's blood alcohol back to the time of driving. The State's expert testified that he concluded that the defendant was the driver based upon the defendant's "left-sided injuries" and the victim's :right-sided injuries". The state expert also calculated the defendant's BAC to be above the limit at the time of driving.


On appeal, the issue was whether the state's expert was competent and qualified to give the above opinions. Why? Because the expert has a learning disability. During voir dire the State's expert, attempting to describe the nature of his condition, testified that, “I do not know right from left and I do not-am not able to add or subtract even simple numbers.” Noting that the State's expert was ultimately asked to calculate Caron's blood-alcohol level and to explain the significance of left-sided and right-sided injuries, the defendant contended that the State's expert's learning disability rendered him incompetent to testify.



Finding no error in the trial court's determination that the expert was competent, the appellate court stated:



As a general rule, “[e]very person is competent to be a witness.” M.R. Evid. 601(a). Pursuant to M.R. Evid. 601(b)(3), however, a person will be disqualified from testifying if the court finds that “the proposed witness lacked any reasonable ability to perceive the matter.” The phrase “any reasonable ability” was included in Rule 601(b) “ ‘to make it clear that even a limited ability to perceive ... may be sufficient to avoid disqualification.’ “ State v. Gorman, 2004 ME 90, ¶ 22, 854 A.2d 1164, 1170 (quoting Field & Murray, Maine Evidence § 601.2 at 244 (2000 ed.)). A trial court's ruling on witness competency is reviewed for clear error. State v. Cochran, 2004 ME 138, ¶ 6, 863 A.2d 263, 265.



We find no clear error in the court's competency determination. Notwithstanding the State's expert's self-reported learning disability, the court was able to observe the apparent fluency with which he explained his opinions, including his ability to distinguish right-sided and left-sided injury patterns and perform the calculations necessary to extrapolate from the results of Caron's blood-alcohol test.

The appellate court held that the expert was qualified and capable to opine, and upheld the conviction. (“When the issue is not what the expert's qualifications are, but whether those qualifications are adequate for the opinion of the expert, the standard of review is abuse of discretion.”).

(Editors note: Keep this one on hand the next time the State suggests that a defense expert is unqualified.)


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