Mike Findlay
2011-07-08 17:22:33 UTC
Cop: I think you are driving drunk.
Driver: No, I'm not, give me a breathalyzer
Cop: No we don't like those anymore, pee in this cup.
Driver: What? You can't make me pee in a cup.
Cop: Off to jail with you buddy and kiss your license goodbye.
Brave new world we got ourselves.
Mike F.
----- Forwarded Message ----
From: TheNewspaper <sharedarticle-Tdrh2E+Ad1PH3Z/***@public.gmane.org>
To: mdfindlay-***@public.gmane.org
Sent: Fri, July 8, 2011 12:17:19 PM
Subject: Updates from TheNewspaper.com
TheNewspaper
Updates from TheNewspaper.com
________________________________
Minnesota: Appeals Court Expands DUI Implied Consent Reach
Posted: 08 Jul 2011 01:59 AM PDT
Anyone accused by a police officer in Minnesota of driving under the influence
of alcohol (DUI) can be compelled to produce a urine sample without a warrant,
according to a June 27 decision by the state court of appeals. A three-judge
panel weighed the case of Kim Marie Ellingson who had been stopped for speeding
after midnight on May 3, 2009. The officer later arrested her for DUI.
Just days before, the state supreme court handed down its decision in the case
of Minnesota v. Underdahl forcing disclosure of the source code that governs the
operation of the Intoxilyzer 5000EN breath testing machine. The revelation
allowed defense attorneys to uncover flaws in the device's operation.
Prosecutors put thousands of cases on hold. Most jurisdictions switched to blood
or urine testing to avoid the breath machine's problem.
Precedent already allowed police to take blood or breath without a warrant,
although physical force could not be used without a judge's prior approval (view
decision). No clear directive existed for warrantless urine collection.
Nonetheless, a police officer insisted Ellingson provide such a sample under the
implied consent statute. At trial, Ellingson insisted the police should have
first obtained a warrant, as required by the Fourth Amendment.
"One exception to the warrant requirement is the existence of exigent
circumstances," Judge Thomas J. Kalitowski wrote for the three-judge panel.
"Exigency can be created by a single factor, in which case consideration of the
totality of the circumstances is unnecessary."
To get this result, the prosecution's expert witness claimed waiting just
fifteen minutes could cause a blood alcohol reading in the bladder to decrease
by 0.002 -- enough to change a .081 conviction into a .079 acquittal.
"Appellant is correct that the forensic scientist testified that alcohol in the
bladder is not destroyed by the body's natural processes in the same way as
alcohol in the blood is destroyed," Kalitowski wrote. "But the record supports
the district court's finding that the body's natural processes cause the alcohol
concentration of urine to change rapidly."
Under this reasoning, the court affirmed Ellingson's conviction. A copy of the
ruling is available in a 100K PDF file at the source link below. Source
You are subscribed to email updates from TheNewspaper
To stop receiving these emails, you may unsubscribe now. Email delivery powered
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Driver: No, I'm not, give me a breathalyzer
Cop: No we don't like those anymore, pee in this cup.
Driver: What? You can't make me pee in a cup.
Cop: Off to jail with you buddy and kiss your license goodbye.
Brave new world we got ourselves.
Mike F.
----- Forwarded Message ----
From: TheNewspaper <sharedarticle-Tdrh2E+Ad1PH3Z/***@public.gmane.org>
To: mdfindlay-***@public.gmane.org
Sent: Fri, July 8, 2011 12:17:19 PM
Subject: Updates from TheNewspaper.com
TheNewspaper
Updates from TheNewspaper.com
________________________________
Minnesota: Appeals Court Expands DUI Implied Consent Reach
Posted: 08 Jul 2011 01:59 AM PDT
Anyone accused by a police officer in Minnesota of driving under the influence
of alcohol (DUI) can be compelled to produce a urine sample without a warrant,
according to a June 27 decision by the state court of appeals. A three-judge
panel weighed the case of Kim Marie Ellingson who had been stopped for speeding
after midnight on May 3, 2009. The officer later arrested her for DUI.
Just days before, the state supreme court handed down its decision in the case
of Minnesota v. Underdahl forcing disclosure of the source code that governs the
operation of the Intoxilyzer 5000EN breath testing machine. The revelation
allowed defense attorneys to uncover flaws in the device's operation.
Prosecutors put thousands of cases on hold. Most jurisdictions switched to blood
or urine testing to avoid the breath machine's problem.
Precedent already allowed police to take blood or breath without a warrant,
although physical force could not be used without a judge's prior approval (view
decision). No clear directive existed for warrantless urine collection.
Nonetheless, a police officer insisted Ellingson provide such a sample under the
implied consent statute. At trial, Ellingson insisted the police should have
first obtained a warrant, as required by the Fourth Amendment.
"One exception to the warrant requirement is the existence of exigent
circumstances," Judge Thomas J. Kalitowski wrote for the three-judge panel.
"Exigency can be created by a single factor, in which case consideration of the
totality of the circumstances is unnecessary."
To get this result, the prosecution's expert witness claimed waiting just
fifteen minutes could cause a blood alcohol reading in the bladder to decrease
by 0.002 -- enough to change a .081 conviction into a .079 acquittal.
"Appellant is correct that the forensic scientist testified that alcohol in the
bladder is not destroyed by the body's natural processes in the same way as
alcohol in the blood is destroyed," Kalitowski wrote. "But the record supports
the district court's finding that the body's natural processes cause the alcohol
concentration of urine to change rapidly."
Under this reasoning, the court affirmed Ellingson's conviction. A copy of the
ruling is available in a 100K PDF file at the source link below. Source
You are subscribed to email updates from TheNewspaper
To stop receiving these emails, you may unsubscribe now. Email delivery powered
by Google
Google Inc., 20 West Kinzie, Chicago IL USA 60610
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