DENVER (CBS4) – A CBS4 Investigation has found some drunk drivers in Colorado have seen their cases dismissed in court or in administrative hearings after police refused to provide suspects with breath tests, saying the potential spread of COVID has made breath tests too risky for officers. Although the Colorado Department of Public Health and Environment has deemed giving a breath test during the pandemic “safe,” major police agencies in Colorado are bypassing that advice and refusing to administer the breath tests.

Denver Police Chief Paul Pazen

(credit: CBS)

The Denver Police Department is one department that stopped administering breath tests to DUI suspects during the pandemic. Chief Paul Pazen told CBS4, “It’s important we have accountability for people who choose to drive while impaired as well as (making sure) we’re not unnecessarily or unduly spreading COVID-19.”

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But attorneys who represent DUI suspects are questioning departments that have stopped providing breath tests.

“Police officers have to do their jobs according to the law and when they don’t, cases get thrown out,” said Jay Tiftickjian, a defense attorney in Denver who handles DUI cases.

“Drivers who may be under the influence or impaired will get off on this issue,” said Tiftickjian.

Colorado law says suspected drunk drivers shall be given the choice of taking a breath test or blood test when they are arrested unless the test cannot be given due to “extraordinary circumstances.” Denver police, Aurora police, the Jefferson County Sheriff’s Office and the Colorado Springs Police Department have all decided that COVID-19 constitutes an extraordinary circumstance and all stopped administering breath tests in DUI cases in 2020. Other police departments contacted by CBS4 said they continue to provide breath tests.

(credit: CBS)

Aurora Police Officer Matthew Longshore said APD suspended breath tests because “The risk of exposure in using breath tests is higher than taking a blood sample. We did not need people forcefully exhaling around or on our officers, increasing their chances of potentially being exposed to COVID-19.”

But at least one Aurora DUI suspect has leveraged this new strategy in their favor.

In October 2020, Aurora police contacted a woman involved in an accident. She was suspected of drunk driving. She had a previous DUI on her record, according to her attorney. The woman wanted to take a breath test but when police denied that option, she refused to submit to a blood test. At an administrative hearing at the Colorado Department of Revenue in December — which would normally result in her losing her license and also have an interlock device placed on her car — a hearing officer dismissed the case saying there were not “extraordinary circumstances which prevented the completion of a breath test.” The driver kept her license.

The woman’s attorney, Danny Luneau, told CBS4, because police departments are refusing to do breath tests, “There will be some DUI drivers who will be back on the road. That is just the simple truth.”

In another case a Jefferson County judge dismissed a DUI charge in January against a driver who was not offered a breath test. According to a transcript in the case, an Arvada police officer told the suspect during the stop… “I explained to (the suspect) due to the spread of COVID-19 he could only submit a blood test or refusal [sic].” The man’s attorney, Charles Fife, said that since the defendant had a previous DUI on his record, he would have faced jail time if the DUI charge had stuck.

“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,” said Fife.

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Natashia Kerr, a Communications Specialist with the Colorado Springs Police Department, said her department believes the COVID pandemic constitutes an
“extraordinary circumstance.”

“Officers are not providing an option for a breath test when processing DUIs”, she said.”Blood tests are required. Our goal as peace officers is to keep our community safe, and that includes limiting the potential spread of the virus and protecting both officers and community members from unnecessary viral exposure.”

(credit: CBS)

The police departments now refusing to provide breath tests are going against guidance provided by the CDPHE, which has deemed breath tests during the pandemic “safe.”

Last March, CDPHE disseminated a memo recommending some precautions to officers giving breath tests, including social distancing from the suspect, avoid confined spaces for breath tests and “it is recommended that PPE be worn.”

Jeff Groff, who oversees breath testing for the state department, said his agency cannot order police departments to continue to administer breath tests, but he has testified there have been no studies showing a breath test in a DUI case spreads the virus.

“There’s nothing out there,” said Groff during a hearing last August. “I have no reason not to believe it’s not safe. So I think that performing a breath test on these instruments is no more risky than going to 7-Eleven and using your ATM card and the Pin pad.”

He said if police departments follow CDPHE guidance “In my opinion, they’re going to be just fine.”

Numerous police departments contacted by CBS4 said that for them, nothing has changed with COVID and DUI suspects are still given the choice between a breath or blood test. But some police departments are clearly not swayed by Groff and the CDPHE recommendation.

Luneau told CBS4, “Basically the police departments are taking the position that they know more than the department of health knows about a public health crisis.”

The CDPHE declined to discuss the issue with CBS4 citing potential litigation.

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The attorneys contacted by CBS4 all believe higher court will have to soon decide if police departments can continue to suspend the use of breath tests.

Brian Maass