Where does DWI enforcement stand in Minnesota amid reports of faulty alcohol breath tests?

The impact of faulty data from the Minnesota Bureau of Criminal Apprehension’s blood alcohol testing equipment continues to widen, but drunken driving arrests continued without issue over the weekend in Minnesota.

By Monday afternoon, 82 people had been charged with drunken driving since Friday when the BCA ordered statewide law enforcement to review DataMaster breath tests to ensure the instruments were working properly. The bulk of suspects who were arrested and charged this weekend agreed to a preliminary breath test and several also submitted to a DataMaster test.

On Friday, the BCA ordered DataMaster use suspended “until agencies verify the gas cylinder data is correctly entered into each instrument.”

At a news conference Monday, BCA Superintendent Drew Evans said the machines were never fully taken offline and all it required was a five-minute check to make sure everything was operating correctly.

Evans said there are currently 276 tests identified that might be affected. Each of those is being considered individually, and the number of faulty tests might grow.

Law enforcement officials typically handle such cases by having an officer conduct a preliminary breath test to register blood alcohol content after pulling someone over for probable cause drunk driving. If a driver refuses the test, they can be arrested. If they agree to the test, the officer can use the preliminary breath test, along with roadside tests, to move forward with arrest and bring the suspect in for more testing. That preliminary breath test data is not used in court because it isn’t accurate enough; it’s just another tool law enforcement has to detain someone and do further testing.

Every breath test for blood alcohol concentration that’s used in court in Minnesota is done on a DataMaster machine. They are used by every county, and there are 220 of them in the state. The instrument has a dry gas cylinder with a known alcohol concentration that is used as a control to make sure the alcohol reading off the breath test is correct. The machine is used repeatedly with the same gas cylinder and is typically sent back for maintenance and recertified annually before being put back in the field.

Defense attorney Chuck Ramsay has been defending Minnesotans charged with driving while intoxicated for more than 30 years. He uncovered the issue with DataMaster and on Monday said at least seven counties were affected. The BCA put that number at five but said it is still gathering data.

Several county attorneys told the Star Tribune they are actively investigating the issue. The number of cases being identified is in flux. In Hennepin County, the BCA said there were at least 38 faulty tests; Ramsay said that number was at least 100.

Hennepin County Attorney’s Office spokesperson Daniel Borgertpoepping said they are working with the BCA to analyze casework.

“We take dangerous driving offenses extremely seriously while also upholding an individual’s constitutional right to a fair process,” Borgertpoepping said. “Our office will be thorough and deliberate in our own review of potentially affected cases.”

Ramsay said the BCA has been disingenuous over the number of tests that are going to be impacted and who was to blame.

Ramsay said the BCA admitting their equipment was faulty is creating a rapidly evolving legal situation where there could be “hundreds and hundreds” of bad tests. He had been fighting questionable results from DataMaster on a “one-by-one basis” since 2023. The BCA first acknowledged there was a more widespread problem with its testing in a case against one of Ramsay’s clients in Aitkin County District Court in late August.

“The BCA took the position they can no longer stand behind these tests and testify in court that they are accurate,” Ramsay said.

The Star Tribune reviewed internal communications from the BCA in September showing the agency had identified 73 affected tests in Aitkin County alone. Those tests had been administered by city, county, state and tribal law enforcement agencies — which gives an idea of how many agencies use a single DataMaster machine.

Last week, Ramsay saw a newscast by KTTC out of Rochester where the Winona County sheriff said they were dismissing dozens of pending DWI cases because the BCA had told them there was an issue with DataMaster results.

“I knew the scope was about to get very big,” Ramsay said.

“That will eliminate most of this particular issue because we will be the ones putting all that data in and doing that day in and day out,” Evans said. “That, we think, is an easy way for us to be able to address this issue.”