consultants are sandburs

Wednesday, August 03, 2016

Tell me again what "reasonable doubt" means. Is it constitutional to have a statute that preempts weighing reasonable doubt about reliability of a testing procedure? Isn't that un-American? (Prosecutors suggest it's hunky dory.)

Without any research, the argument would be centuries of English common law evolved the need of proof beyond a reasonable doubt to support a criminal conviction/sanction. Whatever that nebulous term means, it's got history, so don't disdain it.

The argument goes to Constitutional Bill or Rights Fifth Amendment "due process of law" language being written in the context of English common law as its grounding. Fourteenth Amendment requires "due process of law" extending beyond federal matters, as a requirement upon each and every state. For us, Minnesota.

Now this. Read the thing. Take the reporting as true and accurate on its face, even though it is a FOX outlet. As short as it is, there have to be omitted nuances, but this paragraph:

In the Ramsey County order, Judge Nicole Starr concluded that under normal evidence rules, the “individual breath-testing results are not reliable,” but she still admitted the results because of a state statute, writing the “statute directs that the results are admissible as trustworthy and foundationally reliable.” She also found other parts of the calculation methods as reliable.

It is found, factually, to be unreliable, but because the legislature wrote a statute saying, in effect, "forget science and challenges based on science, we decree it to be reliable." That's where the Constitutionality question arises, removal or reasonable doubt over a breathalyzer number, as if Moses carried down but dropped the stone tablet that said, "Thou shalt not doubt the breathalyzer," but it was found and passed by our able repesentatives, goaded on by the Prosecuting Lawyer Lobby (whatever formal name they gave themselves, that label tells it all).

Going to this site and searching that language, "trustworthy and foundationally reliable," failed to yield the statute in question, ditto for a simple search, "breathalyzer." Our laws should use commonly accepted language, but the criminal statute did not turn up on that search. Had to search = "driving" and "impaired" and "admissible" - which suggested the magic words are "breath-testing instrument" (a.k.a. "breathalyzer," but don't digress).

BINGO!

Minn.Stat.Sect. 634.16, stating:

In any civil or criminal hearing or trial, the results of a breath test, when performed by a person who has been fully trained in the use of an infrared or other approved breath-testing instrument, as defined in section 169A.03, subdivision 11, pursuant to training given or approved by the commissioner of public safety or the commissioner's acting agent, are admissible in evidence without antecedent expert testimony that an infrared or other approved breath-testing instrument provides a trustworthy and reliable measure of the alcohol in the breath.

So, there you have it. And the counter argument is the legislature legislated "admissability" of a certain kind of "evidence," and not its "weight" as insufficient or satisfactory "beyond a reasonable doubt." That seems to be what the FOX report of the judge's decision in the quoted paragraph hinged on, as not constitutionally impermissible.

If it seems to readers to be splitting hairs over questionable legislation and such, then readers can begin to understand why DWI lawyers can specialize so narrowly and still enjoy a good life. The evidence gets in, the guy blew a marginal 0.09, so how can a licensed and specialized one stand up in closing argument after the evidence is all in and spin a jury to acquit, other than saying the test is bullshit, and our counter evidence of margin of error and unreliability proves that's so, beyond a reasonable doubt - you have reason to doubt the number, folks, etc. Which for all I know, is the truth. Margin of error for such "scientific measurement" is unclear, and the cash-hungry manufacturers of the instrumentation sold at a good price to the cops surely would discourage any real inquiry into the question of reliability of their cash cow products.

So who you gonna call?

Breath Busters (a.k.a. specialized counsel).

And of course, the statute goes to admissibility and not weight, so the Prosecutors are correct. It is hunky dory. How things get done. Stow your due process worries, because it is so clearly correct as an approach.

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