Woman who blew a .232 in Aspen won’t face DUI charge
March 10, 2011
ASPEN – A woman whose breath-alcohol level was nearly three times the legal limit won’t be charged for DUI after a judge suppressed incriminating evidence from the case, ruling that Aspen police did not have reasonable suspicion to pull her over.
Deputy District Attorney Richard Nedlin dismissed DUI charges against Carbondale resident Erika Gallegos, 26, on Tuesday, following a March 4 ruling by Pitkin County Judge Erin Fernandez-Ely. The judge threw out all evidence police collected after Gallegos was stopped on the Maroon Creek Bridge at approximately 2:15 a.m. on June 26, 2010.
Gallegos, according to police records, blew a .232 on a breathalyzer test. Under Colorado law, motorists are considered legally intoxicated if their breath- or blood-alcohol level exceeds .08. They also face a mandatory 10-day jail sentence if their alcohol level surpasses .2.
The arrest was made by Aspen Police officer Greggory Cole, who has been involved in at least 47 DUI arrests in Aspen since August 2008. But in the last six weeks, the Pitkin County branch of the District Attorney’s Office has dismissed two DUI arrests by Cole because of the judge’s suppression of key evidence the officer obtained.
Both DUIs were challenged by local defense lawyer Lawson Wills, who claims that Cole has an “over-aggressive” style in his pursuit of tipsy motorists.
Cole’s superiors, however, continue to stand behind the officer.
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According to police records, Cole was on routine patrol when he saw a black Nissan Frontier westbound on Main Street. Cole, in a police report, wrote that “I observed the vehicle wander back and forth within its lane, almost crossing the line several times.” Cole, who was accompanied by officer Chance Williams, followed the vehicle through the S-curves and onto Highway 82.
The Nissan then went over the Castle Creek Bridge, crossing “the solid white line completely with both right side tires, coming very close to striking a curb. I then observed the vehicle travel over the solid white line at the west end of the Cemetery Lane intersection,” Cole wrote.
The vehicle continued to swerve on Highway 82 between Cemetery Lane and the roundabout, prompting Cole to activate his patrol car’s overhead lights before arriving at the intersection at Truscott Place, the officer wrote. The vehicle was pulled over at the crest of the Maroon Creek Bridge.
Cole described Gallegos as having “bloodshot and watery eyes, slurred speech, a strong odor of alcoholic beverage on her breath, and noticed her to have difficulty performing simple tasks.”
Gallegos initially refused to get out of the vehicle based on the advice of a male passenger in her car, Cole reported. She eventually stepped out after Cole told her she was under arrest.
“I told Gallegos to turn around and place her hands behind her back,” Cole wrote. “I grabbed Gallegos’ right hand in an attempt to handcuff her and she quickly spun around and brought her hand quickly towards my face. I then used my body weight to pin Gallegos against her vehicle in order to prevent Gallegos from attempting to assault me and to prevent further attempts to resist arrest.”
Cole then escorted Gallegos to his patrol vehicle, and took her to Pitkin County Jail where she submitted to a breathalyzer test at 3:08 a.m. After blowing a .232, Gallegos was cited for failure to drive in a single lane, DUI, driving with excessive alcohol content and resisting arrest.
Cole’s arrest prompted Wills, in October, to file a motion to suppress all of the evidence collected by the officer after the stop. His motion’s reason: “The officer did not have any reasonable ground to believe that Ms. Gallegos had engaged, was engaged, or was about to engage in any criminal activity.”
In Colorado, police officers are required to have “reasonable suspicion” in order to pull over a motorist for a traffic infraction, including DUIs.
But Judge Fernandez-Ely, after reviewing a police-car video recording, ruled that the reasonable-suspicion criteria was not met. Her one-page order said the judge did not agree with Cole’s portrayal that the Nissan was crossing lines and should have been pulled over.
“The video does not confirm that the driver crossed the line three times or that she almost hit the sidewalk or that she drove in a manner that was unsafe or careless,” the judge wrote. “The evidence presented shows that such crossing on the marked lines was minimal and technical in nature. The Court finds that under the totality of the circumstances there was no reasonable suspicion that a crime was committed justifying the stop.”
In an interview Tuesday, Assistant Police Chief Linda Consuegra said that she felt Cole handled the stop appropriately. Both she and Bill Linn, also an assistant police chief, noted that oftentimes what the officer sees and what the video depicts aren’t exactly the same.
“From my past experience, when you’re following a vehicle and if you find there is reasonable suspicion to stop a vehicle that’s the right thing to do. … We’re trusting our officers to do that,” Consuegra said.
Consuegra, who watched the video, said she does not dispute Cole’s description of Gallegos’ driving patterns the morning in question.
“The video is a tool and you have what the officer witnesses and observes,” she said, adding that “the distance, the clarity, the night part of it, it’s not going to show 100 percent what the officer is observing out there and that’s just a fact.”
When asked if Cole handled the stop appropriately, Consuegra replied: “Viewing the video and looking at officer Cole’s report, and based on what I’m reading from the video and the observations that he narrates in his report, he had reasonable suspicion to stop that vehicle.”
For his part, Cole said the stop was justified.
“I definitely feel that there was enough reasonable suspicion to make the stop,” wrote Cole in an e-mail. “If I felt that reasonable suspicion was lacking I would not have made the stop. The fact is that Ms. Gallegos’ BAC was nearly three times the legal limit; she had no business being behind the wheel.”
Wills, however, contends Cole arrived at his determination after he stopped Gallegos.
“A cop cannot pull someone over on feelings or hunches, which they’ve essentially admitted doing here,” Wills said. “That’s the problem. You can’t pull someone over on a feeling and try to create reasonable suspicion later on by justifying it and saying the car almost hit a curb when the video says there was no curb. So [Cole] is trying to justify that feeling after making the stop.”
Consuegra said while the APD “respects” the judge’s ruling, “for us it comes down to safety. And if officers have reasonable suspicion to stop a vehicle and they end up making a DUI arrest, we’re going to continue to support that. … Our priority is to keep the community safe out here. If the person hadn’t been pulled over, who knows what would have happened? She was at .232, and I’m not sure where she was headed, but that is just not OK.
“The video is a tool and if officers feel that they have enough to make that car stop, and their investigation leads them to believe this person is intoxicated and shouldn’t be driving and they make the arrest, that’s what we’re asking our officers to do and that’s what the community expects us to do.”
In any case, video evidence helped Aspen police in another ruling issued Wednesday by Fernandez-Ely, who denied a motion to suppress evidence collected in the DUI case of Brenda Pringle, 54, who was cited May 7, 2010.
The judge noted that officer David Rosselot’s stop was proper after he pulled her over for failing to yield at a red light. The video footage backed the officer’s claim.
“The video confirms this bad driving,” the judge noted in her ruling. “The video also confirms that Ms. Pringle’s speech was slurred, that she stumbled, and that she was unsteady on her feet. The Officer’s observations that she had bloodshot, watery eyes and smelled of alcoholic beverages were, therefore, credible.”
The judge also wrote that the officer was “at all times calm, polite, and willing to facilitate the administration of the breath or blood test.” Pringle refused to take a breath or blood test. Pringle’s attorney, Abraham Hutt of Denver, claimed that after she was arrested and at jail she recanted her refusal to Rosselot and volunteered to take a test.
“If the Defendant recanted her refusal she did not do so audibly to law enforcement,” the judge wrote.
Judge Fernandez-Ely’s ruling to suppress the Gallegos evidence didn’t employ the same, seemingly loaded language she used in a January order, in which she wrote that Cole used “subtle coercion” to get a motorist to take a voluntary roadside sobriety test, again suppressing key evidence in a DUI case that was later dismissed.
In that ruling, the judge, who also reviewed video evidence pertaining to the case, concluded that during a late-night stop made June 19 by Cole – one week before the Gallegos arrest – the officer made driver Steve Spiritas take a roadside test even though he did not consent to it, which is required by state law. The judge also dismissed the results of the test, which Cole said Spiritas failed. Spiritas did not take a breath- or blood-alcohol test.
Wills said the recent rulings suggest a pattern of overzealousness by Cole.
“On two separate occasions, close in time, you have the court ruling that the video of what he claims happened didn’t happen,” he said. “Everybody wants DUI enforcement, but what we don’t want is over-aggressiveness in the stops.”
Consuegra said Cole faces no disciplinary actions. The officer stood by his performance as well.
“I make many car stops at all times of the day,” Cole said. “If I contact a driver and they exhibit signs of intoxication, then I conduct a DUI investigation. Not every investigation results in an arrest. I am committed to making the roads safe, and drivers who choose to drive under the influence are a very real danger. The average BAC of drivers that I arrested for DUI last year was .167.”