Police error leads to DWI dismissals

Moorhead Deputy Police Chief Bob Larson said it's unclear how it happened, but an extra box of breath test solution ended up at the Moorhead police department.

He said it was located in a cabinet next to the intoxilyzer and officers assumed that it was a new box of solution. It wasn't. It had expired six months earlier.

Larson said that once the box was opened, other officers started using the expired solution, including the Clay County Sheriff's department and the State Patrol.

"When that happened, we found out about it," he said. "We immediately notified our prosecutor who immediately notified our defendants or their lawyers about what was going on and we're not using any of those tests that were used with that intoxilyzer."

That prosecutor, Clay County Attorney Brian Melton said police used the expired solution from Jan. 29 through April 1, a total of 86 times. Melton said because some were repeat tests on the same individual, there aren't 86 separate cases.

He said none of the cases involved crashes, injuries or fatalities. Melton said he's reviewing all the cases but is confident most will still go to trial based on other evidence.

"We've reviewed approximately 43 cases here in our office, and based on our review there have been several cases that we have had to dismiss," he said. "We are not going to use the intoxilyzer tests in a court of law to prove a criminal case beyond a reasonable doubt. So in the end we'll go forward with a lot of the cases on proof of a field sobriety test and video from the squad car, statements and confessions that were made by the defendants. All those things can help prove the case."

"We've reviewed approximately 43 cases here in our office, and based on our review there have been several cases that we have had to dismiss."

Melton said the tests were likely accurate, but the state sets out specific rules to ensure that there is no question in court about the validity of such tests.

"When the solution was used and run through the test, it still showed that it was valid and working, " he said. "But the idea is that we want to make sure that the courts and the public have confidence that we're doing it exactly right and the same way every time. In this case, an error was made and accept responsibility for it, fix it, and make sure it won't happen again."

Moorhead Deputy Police Chief Bob Larson agrees. He said the department has changed procedures so using expired solution in the intoxiyzer or simulator never happens again.

"The one person who's in charge of the simulator will actually check in all the simulator solutions," he said. "He will highlight the dates on the boxes. And there's big instructions with the simulator to make sure that you check the solution expiration date prior to putting it in the simulator."

A spokeswoman for the state Bureau of Criminal Apprehension said the Bureau hasn't heard of a similar mistake happening in Minnesota.

The BCA is the agency that provides the solution to local law enforcement agencies and said it's highly unlikely it sent the expired solution to Moorhead police. She also said there is no reason to believe that law enforcement outside of Clay County would have used the expired solution.

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