Late-night DUI arrest in Aspen produces criticism from judge
ASPEN – A county judge recently ruled that an Aspen police officer used “subtle coercion” to get a motorist to take a voluntary roadside sobriety test, suppressing key evidence in a DUI case that was later dismissed.In a two-page order issued Jan. 19, Pitkin County Judge Erin Fernandez-Ely concluded that during a late-night stop made last summer by Aspen officer Greggory Cole on Main Street, driver Steven Spiritas took 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.Cole and his supervisors said they take the ruling seriously and hope to learn from it. “We need to listen to what the judge is saying. It might give us pointers on the way we do things,” said Police Chief Richard Pryor. “She’s issuing an opinion on how we do our business.”Last week Deputy District Attorney Richard Nedlin dropped the DUI charge against Spiritas because the case lacked incriminating evidence without the field-sobriety test results. Spiritas refused to take a portable breath test as well.The judge’s ruling came after Glenwood Springs defense attorney Lawson Wills, on behalf of Spiritas, filed a motion in October to suppress evidence from the roadside test. A hearing on the matter was held Jan. 4 in Pitkin County Court.The incident occurred at approximately 11:30 p.m. on June 19, when Cole pulled over Spiritas, 65, of Dallas, because his Mercedes’ high-beam lights were on. The stop came after Cole said he flashed his high-beams as he was driving toward Spiritas on Main Street to alert him to dim the bright lights. Spiritas claimed he then dimmed the lights; Cole testified that when he approached the Mercedes, a blue light on the dashboard was on, indicating the bright lights remained on as well. The judge, however, disagreed, suggesting Cole’s testimony “that he saw the blue bright light on the dashboard either reflects a bad memory, lack of adequate documentation in his report to refresh his memory, or bad faith.”The suggestion that Cole acted in bad faith is misguided, Pryor said.”There’s no indication of any bad faith in my mind at all,” he said. “It’s not about an officer trying to pull the wool over people’s eyes or to lie.”The judge also reasoned that “even if the consent was voluntary, the Court finds that the administration of the roadside tests deviated from the minimum standards of reliability required by law and therefore, were inadequately administered.” Additionally, the horizontal gaze hystagmus (HGN) portion of the test – commonly referred to as a “pen test” – was inadmissible because Cole did not ask Spiritas if he had eye problems, the judge ruled. In Cole’s arrest report, the officer noted he observed Spiritas “to have a bloodshot and watery eyes and slurred speech” as part of the reason he cited Spiritas for DUI. Ely-Fernandez, however, wrote that “the defendant did in fact have eye problems that explained the bloodshot condition and rendered the HGN test unreliable as a matter of law.” In an interview Monday, Cole, who has been in involved in 47 DUI arrests in Aspen since August 2008, said: “I definitely made a mistake. We usually ask them if they have eye problems.”The judge, after reviewing a police video of the stop, also disputed Cole’s assessment that Spiritas failed the roadside test, saying it “was administered in a way that was confusing and unreliable” and “the video did not support the Officer’s conclusion that the defendant ‘failed’ the tests.”The judge also disagreed with Cole’s observation that Spiritas had “slurred speech” and was “swaying front to back while standing.””Contrary to the police officer’s testimony, the video did not support a conclusion that Mr. Spiritas was slurring his speech or even stammering or even stuttering. Mr. Spiritas’ exit from the vehicle was normal. Mr. Spiritas did not appear to be unsteady on his feet or swaying in any manner. There was no evidence of bad driving.”Cole, Consuegra and Pryor said findings from the video footage of the arrest are a matter of interpretation. Pryor said “we respect” Fernandez-Ely’s ruling and “acknowledge her perceptions of the video footage.””We would like to add that perceptions and observations can differ, and stress that video footage has its limitations,” Pryor said. Consuegra said she plans to talk to the judge, who declined comment for this story, about the ruling and how the APD can improve its DUI enforcement.”When we see an order like this, we continually look for ways to improve,” she said.Consuegra said details of the judge’s ruling have been passed down to patrol officers at the APD. Both Consuegra and Pryor said they stand behind Cole, whom Pryor said “has sound values that fit with our community.” He called Cole “a respectful and trustworthy officer.”Pryor said he treats the matter with Cole as a “training thing, not disciplinary.”One of the main problems with the Spiritas stop was that Cole spoke too much about roadside tests, and should not have further discussed the test with Spiritas after he initially refused to take it, Pryor and Consuegra said. “We try to approach things with a more informational approach, and sometimes that can create more complication,” Pryor said.Attorney Wills said Spiritas got an unfair rap after spending a day at the Food & Wine Classic in Aspen. Both Wills and police reports say that Spiritas admitted drinking that day, though Wills insists his client was consuming alcohol maturely while Cole’s report indicated he failed the sobriety test. Said Wills: “Spiritas is a mature guy who’s in town for Food & Wine and he’s been drinking responsibly. He’s not some 21-year-old guy who’s been out drinking all day.”Spiritas told Cole, according to the arrest report, that he split two bottles of wine at dinner with three other people, who also were in his car at the time of the stop. Cole handed Spiritas’ wife the keys to the Mercedes after she submitted to a breath test, which revealed a 0.036 level, below the legal limit to drive. The husband, meanwhile, was taken to the Pitkin County jail where he was cited for DUI and released shortly firstname.lastname@example.org
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