TO: THE COURT AND COUNSEL FOR THE STATE OF MINNESOTA:

Transcription

1 STATE OF MINNESOTA COUNTY OF XXXXXX DISTRICT COURT XXXXXX Judicial District State of Minnesota, vs. [Defendant] Plaintiff, Defendant. DEFENDANT'S MEMORANDUM IN SUPPORT OF MOTIONS FOR A FRYE- MACK HEARING & TO SUPPRESS Court File No. _ XXXXXX TO: THE COURT AND COUNSEL FOR THE STATE OF MINNESOTA: INTRODUCTION On, April XX, 2010 Defendant [Defendant] was arrested for suspicion of driving while intoxicated. At the police station, [Defendant] opted to take a urine test. [Defendant] did not have the opportunity to void his bladder before taking the test. The urine test was analyzed by the Bureau of Criminal Apprehension (BCA) and resulted in a reading of an ethyl alcohol concentration of.18 grams per 67 milliliters of urine. The BCA s method for testing urine is novel because it does not require a suspect to first void his or her bladder before giving a testable sample. Thus, it is subject to a full hearing pursuant to Frye v. United States, 293 F (D.C. Cir. 1923) and State v. Mack, 292 N.W.2d 764 (Minn. 1980) in order to determine whether the BCA s methods are generally accepted 1

2 by the scientific community. The BCA s urinalysis methods are not generally accepted by the scientific community and the test should be suppressed. ARGUMENT A novel scientific theory is admissible if two requirements of the so-called Frye-Mack test are satisfied: 1) the novel evidence is generally accepted in the scientific community; and 2) the novel test is shown to have scientific reliability. State v. MacLennan, 702 N.W.2d 219, 230 (Minn. 2005). See also State v. Jobe, 486 N.W.2d 407, 419 (Minn. 1992). The goal of the Frye- Mack test is to allow the persons most qualified to assess scientific validity [the scientific community] of a technique have the determinative voice. Goeb v. Thraldson, 615 N.W.2d 800, 812 (Minn. 2000). A party offering the results of a chemical or scientific test into evidence has the burden of establishing a prima facie case that the test is reliable and that its administration confirmed to the procedure necessary to ensure reliability. Genung v. Comm'r. of Pub. Safety, 589 N.W.2d 311, 313 (Minn.App 1999), quoting State v. Dille, 258 N.W.2d 565, 567 (Minn. 1977). We move for a hearing on the first prong of the Frye-Mack test. The BCA s methods of urinalysis are novel and not generally accepted in the scientific community. Minnesota Courts have not specifically defined what makes a scientific procedure or test novel or emerging. However, past cases have used two factors to determine novelty. First, novelty is contingent on whether the procedure is routinely used. State v. Hodgson, 512 N.W.2d 95 (Minn. 1994). In Hodgson, the appellant argued that bite-mark analysis was a novel technique and failed the Frye test. Id. at 98. The Supreme Court rejected the appellant s argument, stating that bite mark comparisons are not novel because they are routinely used to prove that a particular person was present at a particular place or did a specific act. Id. 2

3 (quoting C. Herasimchuck, A Practical Guide to the Admissibility of Novel Expert Evidence in Criminal Trials Under Federal Rule 702, 22 St. Mary s L.J. 181, , n. 22 (1990)). Unlike Hodgson, which cited a peer reviewed treatise in support of bite mark analysis, the BCA s methods of testing urine are not routinely used. The BCA does not require a DUI suspect to void his or her bladder before giving a testable urine sample. This is commonly known as urine pooling. There are numerous peer reviewed studies, spanning over 30 years, which have found urine pooling gives a DUI suspect a higher alcohol concentration than what is in his or her blood. See Alan W. Jones, Ethanol distribution Ratios Between Urine and Capillary Blood in Controlled Experiments and in Apprehended Drinking Drivers, Journal of Forensic Sciences, Vol. 37, No. 1, at p. 31 (1992)( If the individual s bladder is not completely emptied [before giving a urine sample], batches of old urine might have higher concentrations of ethanol than those in the newly formed urine. The measured Urine Alcohol Concentration might, accordingly, be higher than expected from the coexisting Blood Alcohol Concentration at the time of voiding. ); Kurt M. Dubowski, Absorption, Distribution and Elimination of Alcohol: Highway Safety Aspects, Journal of Studies on Alcohol at p. 102 (1983)( There is massive documentation that the blood alcohol concentration cannot be established sufficiently reliably for forensic purposes from the alcohol concentration of a pooled bladder urine specimen. ). 1 1 The studies cited above are the tip of the iceberg. See also Jones, A.W., Urine as a biological specimen for forensic for forensic analysis of alcohol and variability in the urine-to-blood relationship. Toxicol Rev. 25(1):15-35 (2006); Biasotti AA & Valentine TE, Blood alcohol concentration determined from urine samples as a practical equivalent or alternative to blood and breath alcohol tests, J Forensic Sci. 30(1), pp (Jan. 1985); Sidney Kaye, The Collection and Handling of the Blood Alcohol Specimen, American Journal of Clinical Pathologists, Vol. 74, No. 5 (1980); N. G. Flanagan et. al., Further Observations on the Validity of Urine Alcohol Levels in Road Traffic Offences,Vol. 17, No. 4, Med. Sci. Law (1977) (a small sample of scientific studies that have determined urine pooling can cause an artificially increased alcohol concentration). 3

4 Due to an overwhelming consensus in the scientific community that the BCA s urinalysis methods are in error the BCA procedures are not routinely used. Second, novelty is contingent on whether the Court of Appeals has ruled on the first prong of the Frye-Mack test. In State v. Roman Nose, the Trial Court denied appellant s motion for a Frye-Mack hearing to determine the general acceptance of the PCR-STR method of DNA testing and was denied. 649 N.W.2d at 819. On appeal, the state argued that the BCA had been using the PCR-STR method for three years and it was unnecessary to determine whether the method was generally accepted in the scientific community. Id. at The Supreme Court rejected this argument because it was the Court s responsibility to determine whether something was generally accepted. Id. at 821. The Court further noted that for the first prong of the Frye-Mack test, [t]he BCA s practice is not dispositive of the issue, but may instead be relevant at the Frye-Mack hearing to determine general acceptance in the scientific community. Id. at 821. For these reasons, the Court remanded the case to the District Court for a full Frye-Mack hearing. Id. at 823. Roman Nose stands for the proposition that time lapse alone does not make a method generally accepted. It is immaterial that the BCA has shielded its method of urinalysis from scientific scrutiny for years. Urine pooling is still novel because like the PCR-STR test in Roman Nose, it has not been ruled on by any Minnesota Appellate Court. Minnesota Courts have upheld the BCA s urinalysis procedures in the past, but the Courts only analyzed the procedures under the second prong of Frye-Mack. In Genung v. Commissioner of Public Safety the appellant did not challenge the general acceptance of the 4

5 BCA s urinalysis testing. 589 N.W.2d 313 (Minn. Ct. App. 1999). Instead, the appellant challenged whether the BCA used proper procedures. Id. The Court found that the procedures were reliable since they were promulgated in Minn. R (1997), which says that procedures approved by the director of the BCA are reliable. Id. See also Hayes v. Commissioner of Public Safety, 773 N.W.2d 134 (Minn. Ct. App. 2009) (affirming Genung). To hold that Genung and Hayes found the BCA s method of urinalysis to be generally accepted is to reject the Court s holding in Roman Nose. In Genung and Hayes, the Court of Appeals deferred to the BCA to determine reliability. This method was rejected in Roman Nose because general acceptance is determined by the courts and the scientific community, not the legislature or the BCA. Genrung and Hayes ruled on a different issue than is raised here and should be given no weight. CONCLUSION Since the BCA s methods of urinalysis are not routinely used by the scientific community and since neither the Court of Appeals nor the Supreme Court has ruled on the general acceptance of the BCA s methods, [Defendant] is entitled to a full Frye-Mack hearing on the BCA s method of urinalysis. Dated: June 8, 2010 Respectfully submitted, Ascheman & Smith, LLC Landon J. Ascheman (#389886) & Grant S. Smith (#390686) 500 Laurel Ave Saint Paul, MN (612) Attorneys for Defendant 5

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