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
In going through some police reports earlier this week, we came across a memo from the toxicology lab supervisor at the Colorado Department of Public Health and Environment. The supervisor reported in her memo that several blood samples analyzed by a particular lab analyst who worked at the Department of Health were inaccurate. The lab supervisor stated that as of March 21, 2012, she knew of “5 samples that were reported outside of the appropriate reporting range.” These samples were retested and new reports of the results were to be issued. The lab at the Department of Health is going to retest approximately 1,700 samples tested by this particular lab analyst, who was fired for unsatisfactory performance on March 14, 2012.
The toxicology lab at the Colorado Department of Public Health and Environment tests DUI blood samples that are submitted by police agencies from across the state. This episode is reminiscent of an incident reported in late 2009 by the Colorado Springs Metro Crime Lab where the blood alcohol results were found to be incorrect in 167 cases. The Colorado Springs crime lab identified the inaccurate tests were due to an inadequate amount of the internal standard n-propanol being added to the blood sample prior to analysis. After this problem was uncovered, the Colorado Springs Police Department began sending its blood samples to the Colorado Department of Health for testing.
At this point, the cause of the inaccuracies in the results of the blood tests performed by the Colorado Department of Health has not been reported. In our office, we found a handful of tests that were performed by the fired technician that are firm, Daniel, Thom and Katzman, is handling. We do not know what impact this problem will have on cases throughout the state. We will post additional information when it becomes available.
This week, the Colorado State Patrol and Colorado Department of Transportation released statistics for DUI arrests over the St Patrick’s Day weekend. 112 agencies reported a total of 424 DUI arrests in Colorado for the 4 day weekend (Friday to Monday). 50 people were charged with DUI in El Paso County. By agency, that figure is broken down as follows: the Colorado Springs Police Department arrested 36 people for DUI; The State Patrol in Colorado Springs made 4 arrests; The El Paso County Sheriff’s Department reported 6 arrests and 3 other agencies in El Paso County made 4 arrests.
If you happen to be one of the unfortunate ones who were arrested, you should contact an experienced Colorado Springs DUI lawyer for help. Those who submitted to a blood test, should be receiving a revocation order from DMV in the next few weeks if your BAC result was over .08. That order requires you to act quickly to avoid the immediate revocation of your driver’s license. If you would like to discuss your particular case and how a Colorado Springs DUI attorney can help you, please call us for a free initial consultation.
Tired of the two or three hour wait at DMV? The Colorado Division of Motor Vehicles announced a new program that it hopes will reduce waiting times at DMV. Called the “Wait Less” program, the state unveiled an on-line computer reservation system on March 15, 2012. The program will allow the scheduling of appointments online that is designed to cut the waiting times at DMV offices. A kiosk station will checkin people when they arrive at the DMV office. This program is only available at the main DMV office at 1881 Pierce Street in Lakewood. DMV has plans to expand the service to other cities, including Colorado Springs, by the end of the year. You can use the service at https://www.colorado.gov/apps/jboss/dor/online/appointment/scheduling/index.xhtml
A bill involving driving under the influence of marijuana and other drugs was recently introduced in the Colorado Senate by Senator Steve King, a Mesa County Republican. The bill, SB 12-117, expands the existing definition of “DUI per se” to include driving when the driver’s blood, or saliva contains any amount of a schedule I controlled substance, except for THC (tetrahydrocannabinols) ; salvia divinorum; or synthetic cannabinoids, and driving when the defendant’s blood contains 5 nanograms or more of THC.
The bill states that in any prosecution for driving under the influence (DUI), driving while ability impaired (DWAI), vehicular assault, or vehicular homicide, there is a permissible inference that the defendant was under the influence of drugs, if at the time of the commission of the alleged offense, or within two hours thereafter, the defendant’s blood, or saliva contains any amount of a schedule I controlled substance, except for THC; a schedule II controlled substance; salvia divinorum; or synthetic cannabinoids, or the defendant’s blood contains 5 nanograms or more of THC.
The bill also creates a “zero” tolerance if the defendant’s blood, or saliva contains any amount of:
- a schedule I controlled substance, except for THC;
- a schedule II controlled substance;
- salvia divinorum; or
- synthetic cannabinoids.
The bill passed the Senate State, Veterans and Military Affairs Committee on a 4-1 vote. It was referred to the Senate Appropriations Committee for consideration because it carries a fiscal note of approx $600,000.
Driving Under the Influence of Drugs is a complicated and changing area of the law. If you have been charged with DUI, you should consult with an experienced Colorado Springs DUI lawyer to review your case. Call us at 719-578-1183 for a free initial consultation.
On February 2, 2012, a division of the Colorado Court of Appeals ruled that a trial court was wrong to approve the use of medical marijuana by a defendant on probation. In the case of People v. Leonard Watkins, Mr. Watkins pled guilty to a felony in Arapahoe County and was placed on probation for 6 years. Among his conditions of probation, Mr. Watkins was not to violate any laws and not use or possess any narcotic, dangerous or abusable substance without a prescription. Soon after being placed on probation, Mr. Watkins received a certificate from the State of Colorado for the medical use of marijuana. The Probation Department asked for direction from the court and the court entered an order approving Mr. Watkins’ use of medical marijuana. The District Attorney appealed the court’s order approving medical marijuana.
The Court of Appeals noted that the use of marijuana even for medical purposes is a violation under federal law and thus would violate Mr. Watkins’ condition of probation that he not commit any new offenses while on probation. Colorado’s medical marijuana amendment did not offer any protection for Mr. Watkins because it is not a prescription from a doctor but a certification that the patient has a debilitating medical condition and might benefit from the medical use of marijuana. Based on this, the Court of Appeals held that the physician’s certification was not a written lawful prescription that was required under the terms of Mr. Watkins’ probation. Finally, since probation is considered a privilege and reasonable conditions of probation can be imposed that curtail a probationer’s rights, any constitutional right to use medical marijuana in Colorado may be curtailed during the term of Mr. Watkins’ probationary sentence.
According to recently released statistics, Colorado Springs saw a 33 percent increase in homicides in 2011. The 32 homicides committed in 2011 is the largest number committed in Colorado Springs in one year. Although Colorado Springs saw such a large percentage increase in homicides, the 2011 murder rate is close to or lower than comparably sized cities in Colorado and the United States.
At the end of 2011, the Colorado Springs Police Department had 622 officers.
With a population of approximately 415,000 people, Colorado Springs has 669 residents for every police officer. By comparison, other large cities in Colorado have a lower ratio — Aurora has 509 residents per officer and Denver has 422 residents per officer.
According to a recent article on the website carinsurance.com, Mothers Against Drunk Driving (MADD) will be making a push across the country for states to enact laws requiring convicted drunk drivers to install ignition interlock devices in their cars. Only 14 states — Alaska, Arizona, Arkansas, Connecticut, Hawaii, Illinois, Kansas, Louisiana, Nebraska, New Mexico, New York, Oregon, Utah and Washington – currently require ignition interlock devices for every convicted drunk driver. In Colorado, a person is required to install the interlock if they are convicted of Driving Under the Influence (DUI), have multiple drinking and driving convictions, or were revoked for having a BAC above .08.
New Mexico has seen a 35% reduction in drunk-driving fatalities since it passed its ignition interlock law. Drunk driving deaths have been reduced by 46% in Arizona since 2007. A study by the Centers for Disease Control and Prevention estimated that the interlock reduced second offense rates by 67%.
Update: A bill has been introduced in the US House of Representatives to offer additional highway funds to states that require ignition interlock devices for DUI offenders.