It’s been over a year since the Minnesota Supreme Court issued its decision in State v. Hull, which paved the way for further Frye-Mack challenges to Minnesota’s use of first-void urine alcohol testing (F-VUAT). Those challenges have worked their way through the appeals process, and we’re anxiously awaiting decisions on the cases that we currently have before the Supreme Court. The first half of 2012 should see a decision regarding whether or not F-VUAT can be challenged at a Frye hearing in order to determine whether or not the practice is generally accepted in the scientific community.
Alongside our challenges to the general acceptance of F-VUAT (under the first prong of the Frye-Mack standard) is our companion challenge to the foundational reliability of F-VUAT testing (the second prong of analysis under the Frye-Mack standard). While the second prong of the Frye-Mack standard also involves a “general acceptance by the scientific community” component, this particular issue has not yet been raised before the Supreme Court . . . for now, it’s still a battle that will take place county by county, case by case, judge by judge.
Yet another key issue surrounding F-VUAT, which was also accepted for review by the Supreme Court, is whether or not criminal defendants and civil license revocation petitioners are entitled to present expert testimony to challenge the validity and reliability of F-VUAT tests. Resolution of this issue not only implicates the scientific foundation of F-VUAT testing in general, but also involves the key Due Process right of every defendant to present a complete defense.
What is clear is that the Supreme Court is taking a close look at F-VUAT testing, and that 2012 will likely see several decisions from the Court clarifying both the future of the Frye-Mack test with respect to all types of forensic evidence, as well as the specific use (or exclusion) of F-VUAT testing in Minnesota.
What other top issues will we see in 2012? To see the full list, check out Top Ten Issues in Minnesota DWI Law in 2012.