The Colorado Department of Public Health and Environment announced on Friday that it will suspend blood alcohol and drug testing at the state lab effective July 3, 2013. The lab will complete the testing of samples currently in process. Untested samples originally sent to the state lab will be sent to a private lab for testing. In addition, the outgoing Executive Director of the Department announced that 800 blood alcohol samples were being retested by a private lab, AIT Labs, to verify the state lab’s results. The 800 samples are to be selected from test results completed during the last 12 months.
During the period that the state lab is suspending testing, the Association of Public Health Laboratories will be conducting an audit of the state lab’s procedures. Lab staff members will receive additional training and the lab’s equipment will be inspected to see that board of health certification standards are being met.
This announcement comes after the recent revelation that a workplace investigation conducted for the Department of Public Health and Environment resulted in a report on March 18th that was critical of the lab’s former supervisor who retired from the Department on May 31st. That report was not made available to defense attorneys until early June. The report identified problems with supervision and training of lab personnel, potential security lapses where samples were stored and possible bias by the former lab supervisor in favor of the prosecution.
The decision to indefinitely suspend blood alcohol and drug testing caps a tumultuous year at the Department of Health. Last year, we learned that a lab analyst improperly tested blood samples that resulted in inaccurate results being reported in approximately 170 tests. We requested records from the Department so we might uncover why those inaccurate results occurred. The Department of Health refused to release those records to us. The lab analyst involved with those tests complained about inadequate training and supervision when he worked at the lab. These complaints were corroborated by the recent workplace investigation. Unfortunately, the Department of Health still has not released information about what was done wrong that caused the inaccurate results last year. We also have to question why 800 samples are being retested. Have other problems occurred at the lab that haven’t been released? Hopefully, the audit will answer some of those questions.
The Governor recently signed HB 13-1077 which allows a driver to challenge at a DMV hearing the lawfulness of a police officer’s initial contact or traffic stop with a driver arrested for DUI. Under this law, the Hearing Officer shall consider the validity of the initial contact at a revocation hearing when the driver raises the issue as a defense to the revocation.
What makes this law significant is that it reverses a 2012 Colorado Court of Appeals case that held that a hearing officer or court on judicial review, could not consider the lawfulness of the initial contact in a DMV express consent revocation proceeding under section 42-2-126. (Francen v Dept of Revenue, 2012 COA 110 (Ct App 7/5/12). .
In many jurisdictions that use special DUI officers, that officer is usually involved only in administering the chemical test and filling out the paperwork. In order to contest the initial contact with the driver, it was necessary to have DMV issue a subpoena to require the contacting officer or “stop cop” to appear at the DMV hearing. However after the Francen opinion was issued, it became very difficult to get the Department of Revenue to issue a subpoena for the stop cop. Relying on the Francen opinion, DMV Hearing Officers were not allowing drivers to contest the legality of the stop and arrest for DUI which then resulted in the taking of a blood or breath test.
Thanks to HB 13-1077, we are again able to get subpoenas issued for stop cops and contest the legality of the officer’s initial contact with the driver. If you feel that your stop for a DUI was illegal, please contact us so that we can review this issue with you.
The National Transportation Safety Board (NTSB) issued a report on May 14, 2013 calling on states to reduce the BAC limit to .05 for driving under the influence. The report, Reaching Zero: Actions to Eliminate Alcohol-Impaired Driving, notes that recent efforts have reduced the number of deaths from alcohol related crashes by 53% from 21,113 in 1982 to 9,878 in 2011. The NTSB states that the success of these efforts has plateaued citing that although the annual number of fatalities has declined since 1995, about one-third of highway deaths involves an alcohol impaired driver. The NTSB argues that if “traditional methods are no longer reducing the problem, new –and possibly challenging– initiatives must be considered.”
In addition to reducing the BAC level to .05, the NTSB recommends that:
- law enforcement use high-visibility enforcement through saturation patrols and sobriety checkpoints;
- states increase the use of ignition interlock devices;
- states establish driver’s license revocation for drivers arrested for DUI; and
- target repeat offenders.
We were asked to comment on these recommendations for a story on KOAA’s (Channel 5) 10 PM newscast on May 14th. Our assessment is that these recommendations, if enacted, would have little effect on drivers in Colorado. Not only can drivers in Colorado be charged with Driving Under the Influence (DUI), our state also has a law against Driving While Ability Impaired (DWAI). DWAI is defined in Colorado as driving when one is impaired to the slightest degree. A driver is presumed to be impaired if he has a BAC of .05 to .08. A driver would not lose his license under the Express Consent Law with a BAC below .08, but DWAI is an 8 point offense and depending on what else is on the driver’s record, could cause a point suspension. View the KOAA story at https://www.koaa.com/news/proposal-calls-for-tighter-dui-regulations/
Colorado already revokes a driver’s license if he has a BAC of .08 or higher within two hours of driving. This will result in a 9 month revocation for a first excess alcohol BAC. That driver can reinstate his license early (after 1 month) if he puts an interlock in his vehicle. The law in Colorado requires that a driver have the interlock for two years if the BAC was .17 or higher. However, the Colorado General Assembly passed a new law last month that will reduce that BAC level to .15.
The possible penalties for a DUI and DWAI are similar. They both carry possible jail sentences, fines, useful public service and successful completion of alcohol classes. The penalties for DWAI are slightly lower than those for a DUI.
In our opinion, the only significant change Colorado drivers would face from the NTSB’s recommendations is if the express consent law was also changed so a driver’s license is revoked with a BAC of .05 instead of the current BAC of .08.
We will have to see if NTSB’s recommendations gain any support. The laws involving drunk driving have changed dramatically in the last few years. This has become a very difficult area for the average person to navigate without a lawyer. If you have been charged with DUI in Colorado, please call Daniel, Thom & Katzman for a free consultation.
The US Supreme Court heard oral argument yesterday (January 9, 2013) in a case that will decide whether a police officer may obtain a nonconsensual blood sample from a suspected drunk driver without a search warrant. In Missouri v. McNeely, the State of Missouri appealed a decision of the Missouri Supreme Court that found the warrantless blood draw violated McNeely’s Fourth Amendment rights. In 2010, McNeely was stopped for speeding and was suspected of drunk driving. He failed field sobriety tests and refused a breath or blood test. The police officer then took McNeely to a nearby hospital and ordered a hospital technician to obtain a blood sample without a warrant.
The State of Missouri asked the Supreme Court to create an exception to the Fourth Amendment warrant requirement arguing that the natural dissipation of alcohol in the blood stream creates an exigent circumstance. The Justice Department joined Missouri in arguing this case. A decision is expected this spring.
This case should not have much impact on DUI cases in Colorado. The express consent law allows a driver in a DUI case to refuse a blood or breath test. However, a driver who refuses the chemical test may have his driver’s license revoked for 1 year for the first refusal; 2 years for a second refusal and 3 years for a third refusal. At the DUI trial, the driver’s refusal to take the chemical test may be admitted into evidence against the driver.
The National Transportation Safety Board today recommended that all first-time DUI offenders be required to have an ignition interlock device installed in their vehicles. The recommendation adopted by NTSB, came as part of the Board’s study on wrong-way collisions. The Board found alcohol-impaired driving was the leading cause of wrong-way collisions.
According to the Board, only 17 states require interlock devices for first-time offenders. Colorado is one of those 17 states. In Colorado, a driver who has had their license revoked for a DUI conviction or a chemical test result above .08 is required to install an interlock in order to reinstate their license. Colorado also requires the interlock for drivers with multiple DUI or DWAI convictions. “Technology is the game changer in reducing alcohol-related crashes on our nation’s highways” according to NTSB Chair Deborah Hersman.
The NTSB study found that of the approximately 260 fatal wrong way crashes each year in the United States, most happened at night and on weekends. The Board also recommended that better lighting, signage and roadway markings could reduce the number if wrong-way crashes.
A recent New York Times article highlighted the struggles courts have had with electronic technology and search and seizure law. Traditional analysis states that the Fourth Amendment to the United States Constitution protects places and things in which a person has a reasonable expectation of privacy. So under what circumstances can police search a cellphone without a warrant?
The new “smartphone” can contain detailed information about locations someone has visited and communications such as texts, emails and posts on Facebook and Twitter. Much of this material is maintained in the records of cellphone providers. According to the New York Times, a response to a Congressional inquiry revealed that cellphone carriers responded to 1.3 million requests from police for text messages and other information in 2011.
Courts have been divided on when police need to obtain a warrant. The California Supreme Court ruled that police could search a cellphone without a warrant if the phone was with the suspect a when he was arrested. A trial judge in a Rhode Island murder case suppressed the search of the defendant’s cellphone finding that there was a reasonable expectation of privacy in the contents of the phone.
Some states are attempting to address the issue through legislation. Bills have been introduced in Delaware, Maryland and Oklahoma to require police to secure a warrant to obtain location records from cellphone carriers. A similar bill was vetoed in California earlier this year. In some courts, prosecutors have argued that the location information they have requested is a business record maintained by the cellphone carrier and not information that is constitutionally protected.
As the courts and legislatures attempt to grapple with this issue, will technology outpace their ability to establish rules for law enforcement?
The Colorado State Patrol announced the launching of its ‘100 Days of Heat’ campaign that starts today. The campaign is an intensive crackdown on DUI’s during the summer months with a goal of reducing the number of deaths caused by alcohol and drug impaired drivers. According to the State Patrol’s press release, 67 people died in alcohol related crashes between Memorial Day and Labor Day in 2011. This represented 36% of all alcohol related fatalities for 2011. El Paso County had 15 alcohol related fatalities last summer.
The State Patrol and more than 90 other law enforcement agencies plan to conduct saturation and increased patrols over the Memorial Day Weekend. Sobriety checkpoints are planned in Aurora, Denver, Lakewood, Jefferson and Weld Counties this weekend.
The Driving Under the Influence of Drugs bill was defeated this week in the Colorado Senate on a tie vote. The original bill was a casualty of the civil unions bill when it wasn’t brought to the floor of the Colorado House before the House went into recess last week. The bill was included in the Governor’s call for the special session. It did not receive a majority vote when it was considered by the Senate on May 15, 2012.
The Colorado Department of Public Health and Environment (CDPHE) put out information that as of April 20, 2012, “no retest has resulted in a lower actual BAC than was originally reported.” This affidavit was sworn to by Cynthia Burbach, the Toxicology Lab Supervisor. We have learned that this information is not correct.
We received a report of the retest of one of the blood samples Mitchell Fox-Rivera originally tested. The original test, which Fox-Rivera analyzed on November 4, 2011 had a BAC of .218. The retest which was done by another CDPHE analyst on April 6, 2012 had a BAC of .199. So we know of at least 1 case where the retest was lower than the original test.
It is concerning that an affidavit was signed two weeks later that no retest has resulted in a lower BAC than the original test. This calls into question the accuracy of the information coming from CDPHE and whether Mr. Fox-Rivera did not follow the proper procedure in using a lower volume of blood than called for by CDPHE’s protocol.
We have requested that CDPHE produce documents for us to review under Colorado’s Open Records Act. We will provide a summary of those documents after we receive them later this week
We have new information, since we first reported about the problems with the Department of Health blood tests at the Colorado Department of Public Health & Environment.
We subpoenaed the analyst, Mitchell Fox-Rivera for a DMV hearing on April 25, 2012. Much to our surprise, he appeared at the hearing by telephone. He testified that he had little to no training. Basically, he was told about the operating procedures at the lab and had another lab tech watch him for a few days. He said the lab supervisor, Cynthia Burbach, did not supervise his work. Apparently, there were questions about his work that came up in early March, but he did not receive any additional training and none of the other lab personnel observed how he was performing his tests. We have ordered a transcript of his testimony and will post it when we receive it from the transcriber.
At the DMV hearing, we obtained a Revised Affidavit that Ms. Burbach had provided to the DMV. In that affidavit, which was signed on April 20th, Ms. Burbach said that 250 blood samples had been retested and “10 have been found to have an actual BAC significantly higher than reported by the technician.” The variance in the tests ranged between 24 and 77 percent. She indicated that the error in the technician’s process has been found. According to Ms. Burbach, “the technician did not follow the standard operating procedure and failed to properly operate a standard piece of equipment. This resulted in a lower volume of blood being analyzed than is proper. This decreased volume, then resulted in a lower reported BAC than the actual BAC.”
A number of things in this affidavit don’t make sense. First, were there variances in the other 240 samples that CDPHE says were not significant? What was the percent of variance in those tests? Second, CDPHE says the problem has been identified and is due to a lower volume of blood being analyzed than is proper. CDPHE tests multiple samples at a time. If the technician was using a lower volume of blood than is proper, then all of the samples should have the same problem.
We have filed an Open Records request to get the documents and communications from CDPHE. I suspect that much of what we have requested will be denied and CDPHE will hide behind some form of privilege that these records relate to an ongoing