According to an investigation by CBS4 in Denver, some Colorado drunk drivers have had their cases dismissed in court or in administrative hearings because law enforcement officials refused to provide these individuals with breath tests, citing the potential spread of COVID-19 that could put the health of officers at risk.
The Colorado Department of Public Health and Environment (CDPHE) has stated that breath tests given during the pandemic are considered “safe.” However, police departments of major cities – including the Denver Police Department – have bypassed that advice and ceased the administration of breath tests during DUI investigations.
Under state law, suspected drunk drivers have the option of taking a breath or blood test upon arrest unless the test cannot be administered because of “extraordinary circumstances.” Police departments in Denver, Aurora, and Colorado Springs, as well as the Jefferson County Sheriff’s Office, have all determined that the pandemic was considered an extraordinary circumstance, and all agencies have stopped giving breath tests in DUI cases throughout 2020.
Attorney Danny Luneau represented a client, who was contacted by Aurora police in October 2020 for suspected drunk driving following an accident. The client requested a breath test, but when the police denied that option, the client refused to submit to a blood test. Then in an administrative hearing in December at the Colorado Department of Revenue, the hearing officer dismissed the case and stated that no extraordinary circumstances existed to prevent the administration of a breath test.
In another case, Attorney Charles Fife helped his client get his January DUI charge dismissed in Jefferson County court because the client was not offered a breath test. At the time of the arrest, the Arvada police officer explained to the client that he could only choose between a blood test or refusal because of the risk of COVID-19.
Attorney Fife said to CBS4:
“Without being offered a breath test, my client still demanded a breath test. (The Officer) refused to give client his breath test — which is his right, guaranteed under the statute. At the motions hearing the prosecutor argued COVID fell into the classification of ‘extraordinary circumstances.’ The Judge disagreed.”
On the other hand, several police departments throughout the state have continued to offer breath tests during suspected DUI stops. Last March, CDPHE sent a memo that recommends officers to take precautions when administering breath tests, including practicing social distancing from the detained/arrested individual and wearing personal protective equipment (PPE).
If you or a loved one has been arrested for a DUI in Denver or within the surrounding area and the police failed to offer a breath test, contact Fife Luneau, P.C. today at (720) 408-7130 for a free initial consultation.