DUI cases could be in limbo due to Colorado Springs Police testing procedures during pandemic

COLORADO SPRINGS, Colo. (KRDO) -- A new court order from an El Paso County Judge says Colorado Springs Police violated a driver's statutory rights as officers weren't using breathalyzer tests during the pandemic -- now, more than 1,000 DUI cases could be impacted, according to local defense attorneys.

In March 2020, CSPD suspended alcohol breath testing when pulling people over who were under suspicion for driving under the influence. The department stopped DUI breath testing to prevent the spread of COVID-19.

When a driver is pulled over by a Colorado police officer state law allows the driver to refuse a blood alcohol test or provides them the option of a breath test or blood test.

“The express consent law in Colorado allows a motorist to elect between a blood or breath test," Colorado Springs defense attorney Joe Maher said.

Maher tells 13 Investigates other agencies in Southern Colorado either didn't stop DUI breath testing or only limited breath testing for a short time at the beginning of the pandemic.

"Most police agencies were not barring breath tests. State Patrol was not doing that. Fountain Police Department, as far as I know, was not doing that. Monument Police Department was not doing that. The [El Paso County] Sheriff's Office for a significant period of time was not doing that, there was a period of time where they were barring breath testing, but they stopped their policy," Maher explained.

CSPD didn't resume breath testing until February 2021, despite being sent a memo by the Colorado Department of Public Health about safer ways to conduct DUI breath testing amid the pandemic.

“You have government officials making these decisions to deprive citizens of statutory rights, that our legislature or representatives, put in place, right, we've decided that those are our rights. They decided that it doesn't matter. We're not going to give them to you," Maher explained.

13 Investigates obtained a July 16 court order written by a county judge that found CSPD violated the rights of drivers by failing to uphold Colorado's DUI express consent law by not offering a breath test option.

"If dentists could perform procedures, if jury trials could occur, and if children could attend in-person classes, then the CSPD could find a way to ameliorate risks of breath testing. Further, the CSPD never consulted any public health doctors, epidemiologists, or subject matter experts. At some point, ameliorating the risks of COVID-19 infections became, in the language of the express consent statute, an issue subject to the control of the CSPD. And at some point, the extraordinary became routine," the judge wrote in the order.

13 Investigates spoke with multiple defense attorneys who say the order could lead to dismissals of DUI cases.

"[The order] says that blood tests are suppressed. If those blood tests were procured by the Colorado Springs Police Department, during the time period when the police department was not allowing an individual to elect to the blood or breath testing due to COVID and if there was a refusal to test what the order has said is that that refusal, the case really is dismissed. So it's dismissed the case. And the reason that this is such a big deal is because the law requires them to give options," Maher explained.

The 4th Judicial District Attorney's Office told 13 Investigates last week they are still reviewing court orders and after a review will determine their next steps. The Colorado Springs Police Department said they looked at the available evidence and consulted with the District Attorney's office, and they believe they made the best decision for the safety of the public, officers and suspects. However, defense attorneys say it could impact more than 1,000 DUI cases when arrests were made during the pandemic.

"Potentially over an 11-month period, there were nearly 4,000, somewhere around 3,000-some, people affected by this. Not every one of those drivers is going to fall into this category, but the bulk of them will," Maher said.