December 1, 2022
In Colorado, the law is strict regarding following proper procedures. That’s how one Colorado cop recently avoided a conviction for drunk driving despite a wide variety of evidence.
The evidence existed, sure – including a BAC reading 5 times the legal limit – but it was collected incorrectly. The law is clear about what evidence can and cannot be included in a trial, and improperly collected evidence may as well be no evidence at all.
The cop was found passed out in his vehicle. Bystanders smelled alcohol. A medical blood test showed that he had a BAC of .43. He even admitted that he had been drinking vodka before driving. So how did he avoid DUI charges? Let’s break it down.
In multiple reports from police officers at the scene, a smell of alcohol is reported. However, this was not considered enough evidence to press charges against the drunk cop.
This is because the incident was initially considered a medical emergency, not a DUI offense. As a medical incident, the scent of alcohol was relayed to the medical professionals who arrived at the scene, instead of being considered a reason to do an on-site BAC test.
Therefore, this potential witness testimony wound up being nothing more than hearsay and not sufficient to press charges.
Video footage is grouped in with some other reports under a law, HB 19-1119, requiring disclosure of police internal affairs records. Colorado police must share certain kinds of records, including video. However, it’s not an overarching and all-inclusive law. There is room for many exceptions.
One key rule is what kinds of materials the mandatory disclosure covers. Only records “related to a specific, identifiable incident of alleged misconduct involving a member of the public” must be shared.
Since the officer was on duty, he was not considered a “member of the public” at that time. Therefore, records like footage from the camera in his vehicle were not required to be shared.
Without a subpoena, getting access to that footage was difficult, and the prosecutor couldn’t know its contents. As a result, it was not valid evidence during the indictment process.
It’s illegal to compel anyone to provide testimony that might make them incriminate themselves. That’s guaranteed by the Fifth Amendment to all Americans. Furthermore, there is a legal precedent that prevents compelled statements from being considered evidence.
This specifically covers confessions from officers being investigated by their own departments. Since that was the case for the drunk cop, his own confession could not be used against him.
Medical records are considered protected, private information. Officers at the scene of the incident treated the cop’s state like a medical problem, not a crime. That means that the BAC results didn’t come from an officer at the scene.
Instead, the results came from a test taken by a medical professional involved in his treatment at the hospital. As such, it can’t be included as evidence in a legal trial.
So, while the results of the BAC test are known to the public, they still can’t be included in the trial legally.
This case just goes to show that evidence is the most important aspect of any criminal case. Even when there is evidence, it must also be processed and collected correctly. If evidence has been gathered illegally, an experienced Denver criminal defense attorney can and should get it barred from inclusion in the trial of their client.
About the Author:
Denver-based criminal defense and DUI attorney Jacob E. Martinez is a knowledgeable and experienced litigator with a record of success providing innovative solutions to clients facing criminal charges of any severity. Mr. Martinez has been designated a Top 100 Trial Lawyer by the National Trial Lawyers and has been awarded both the Avvo Client’s Choice Award and Avvo Top Attorney designation, evidencing his reputation for his exemplary criminal and DUI defense work and high moral standards.