Hey all,
Clay Shipp (ccdbdui listserver)
Tue 6/13/2023 8:31 AM
Case dismissed in Gunnison County for lying State Trooper
My client ran off the road and got stuck in a ditch avoiding an elk. Sheriff was first to arrive and immediately called a Trooper to investigate the accident. Trooper arrived 20 minutes later and did a DUI investigation and arrested my client. Client blew .135 at the station 1 hour and 50 minutes after contact with Sheriff. Trooper misstated the law to client on BWC, asserting they start the 2-hour clock at “actual physical contact.” I cross examined the Trooper at the DMV hearing challenging him that he was incorrect and that the law states “actual physical control.” Trooper bragged that he had been on the force for 20 years and knew the law and continued that the sheriff confirmed that client was in the vehicle actively attempting to get it unstuck when he arrived. We did not have the sheriff’s BWC at this point, however I put client on the stand stating that he was not in the vehicle when sheriff arrived but was on the side of the road waiting for his ride. He also testified that he had been outside the vehicle for more than 10 minutes, packing down snow to attempt to get unstuck and made a phone call to a friend to pick him up, putting actual physical control outside the 2-hour window. DMV dismissed revocation because Trooper did not prove by clear and convincing evidence actual physical control was within the 2-hour deadline. I immediately requested sheriff’s BWC and confirmed that client was outside vehicle with engine off as sheriff pulled up. Sheriff had no reason to tell trooper incorrect information because he did not suspect chemical testing to be as time sensitive as it was at that time. Trooper clearly added facts that did not exist to back up his timeline. I sent DMV transcript to DA and a copy of Sheriff’s BWC. DA dismissed the case stating it may lead to a Brady entry for one of the officers’ misconduct