Judge ruled correctly in ‘.232’ DUI case

Aspen, CO Colorado

It’s easy to get caught up in a headline when it says “Woman who blew a .232 will not face DUI charge.”

That’s the headline that appeared in the March 10 edition of The Aspen Times, and it provoked outcry from some who believed a miscarriage of justice occurred when Judge Fernandez-Ely recently suppressed evidence police collected after they stopped Erika Gallegos in the early morning hours of June 26, 2010.

After the judge tossed the evidence, prosecutors had no choice but to dismiss the charges. With no evidence to prosecute Gallegos, the District Attorney’s Office had no case.

Some members of the public have taken Fernandez-Ely to task, lamenting how, as a keeper of justice, she could cast away such incriminating evidence as a .232 breath-alcohol level, which was nearly three times the .08 legal limit to drive.

What’s been lost in this debate, however, is that Gallegos’ BAC level was not the judge’s concern when she made the ruling. In fact, Fernandez-Ely didn’t even know Gallegos’ level of intoxication on the morning in question.

The judge’s task was simply to rule on a motion to suppress the evidence, filed by Gallegos’ defense attorney, Lawson Wills. In that motion, Wills contended that Aspen Police Officer Greggory Cole did not have sufficient reasonable suspicion to pull over Gallegos.

The judge, after sitting through a hearing and reviewing video evidence, sided with Wills. The judge focused on what happened before Gallegos was stopped by Cole. In other words, it was her role to determine if Cole made a proper, legal stop.

The judge concluded that the video evidence did not support Cole’s written claims, in a police report, that the vehicle Gallegos was driving crossed a line three times and almost hit a sidewalk. Cole’s experience might have given him a sixth sense that indicates when motorists are driving drunk, but the judge did not find that he had reasonable suspicion to pull over Gallegos.

Gallegos, no matter how intoxicated she was, still had constitutional rights (unreasonable seizures), and all evidence police collected – including her breath-alcohol level – after that stop was considered “fruit from the poison tree,” or evidence that was collected illegally.

Drunken driving is not to be taken lightly. In 2009, 10,839 people died in alcohol-related driving crashes in the United States, accounting for 32 percent of the 33,808 traffic deaths that year, according to the National Highway Traffic Safety Administration.

It is a serious issue and we should expect, as taxpayers, parents and concerned residents, that our local law-enforcement agencies keep drunk drivers off the roads. But they can’t just pull them over on a hunch, and report later that a motorist was driving in a manner that their video recording does not support.

In the last two weeks, Judge Fernandez-Ely has ruled against motions to suppress evidence in two DUI cases. Both times she decided that police made the stops and collected the evidence properly.

But that’s not always the case, as we recently learned. Yes, Aspen police got a drunk driver off the road on June 26, 2010. But a woman’s constitutional rights were compromised, and we believe that’s just as unacceptable as driving drunk.