Hey all,
Clay Shipp
Wed 6/21/2023 12:09 PM
DUI Dismissal in Garfield County (Rifle)
This is a funny one. Defendant contacted for REDDI report called in for bad driving. Officer made contact and Defendant is clearly intoxicated, slurred speech, stumbling and falling. Defendant refuses roadsides. Officer made arrest and invoked Express Consent and Defendant chose breath. At the station, Defendant falls asleep during deprivation period. He then threw up into the I-9000 machine while blowing. Officer visibly gets angry and states, “I don’t think I will be able to get you to blow into this without throwing up again, and I don’t really want you throwing up in my machine again. So, this is your lucky day, I am going to write you for a DUI but not DUI per se. Also means I am not going to take your license away, which is really in your favor. And I am not going to take you to jail. So, tonight is like the best outcome. . . I don’t feel it’s safe to do the rest of this stuff and I’m not going to put you through it.”
I cite a People v. Gillett. Gillett states, the arresting officer has the right to invoke the implied (express) consent law by requesting the driver to submit to a chemical test or face revocation consequences. Alternatively, the officer may arrest the driver without invoking the statute and the prosecution thereafter may attempt to establish intoxication by means other than the statutory presumptions. A chemical testing can establish innocence as well as guilt, in other words, it runs both ways. When the arresting officer initially invokes the implied (express) consent law and thereafter denies the driver’s request for a blood(breath) test, the driver is deprived of his right to establish non-intoxication by a highly reliable form of chemical testing. A failure of the police department to take routine steps in order to implement the arrested driver’s right to a blood(breath) test under the statute is analogous to the suppression of evidence which manifests unfairness in governmental procedures relating to the acquisition and preservation of evidence potentially favorable to an accused. Gillett continues that the court’s dismissal of the driving under the influence charges is an appropriate remedy to correct the improper governmental conduct in relation to the implementation of the implied(express) consent statute.
When the arresting officer abruptly ended the breath test and attempted to rescind the invocation of express consent but still charged Defendant with a DUI, the officer clearly deprived Defendant of possibly exculpatory evidence. Defendant has a statutory and frankly a constitutional right to the results and was deprived of them by the Officer’s misunderstanding of the statute and rights of an accused. The moment the officer invoked express consent, he was obligated by statute to acquire and preserve the results of the I-9000 yet did not do so. He then cannot rescind the law and still charge a driver with DUI. It is undeniable that the officer made the decision for reasons other than non-compliance or an acceptable extraordinary circumstance.
Case dismissed before going to Motion Hearing.