By Brian Maass

DENVER (CBS4) – The Denver District Attorney’s Office said Friday it had no choice but to drop a DUI case this week against Bronco running back Melvin Gordon because Denver police obtained a blood test from Gordon on a “false premise.”

Denver officers stopped Gordon on Oct. 13 near downtown Denver for speeding. They reported he was doing 71 mph in a 35 mph zone. An officer asked Gordon if he had been drinking and according to Denver police body camera video, Gordon responded that he had one glass of “pinot grigio.” After administering roadside sobriety tests, police arrested Gordon for suspected DUI and speeding.

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Melvin Gordon #25 of the Denver Broncos runs for a touchdown against the New York Jets during the fourth quarter at MetLife Stadium on Oct. 1, 2020 in East Rutherford, New Jersey.

Melvin Gordon (credit: Elsa/Getty Images)

Although state law says DUI suspects have the choice between a breath test or a blood test, one officer tells Gordon: “I can only give you a blood test due to COVID.”

Last year after the pandemic struck, Denver was one of several Colorado police departments that suspended breath tests in DUI cases due to “extraordinary circumstances,” saying they believed administering breath tests jeopardized the health of their officers.

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

“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.”

But a growing number of judges, hearing officers and prosecutors are now having to dismiss or drop DUI cases like Gordon’s, saying COVID is not a legal excuse to deprive drivers of the right to a breath test. Denver DA’s office spokeswoman Carolyn Tyler said of the blood test Gordon eventually took, “Those blood test results were obtained on a false premise. We do not like being in a position of having to drop charges.” She said Denver police not allowing breath tests “raises broader issues.”

Prosecutors allowed Gordon to plead to a lesser charge of reckless driving.

Melvin Gordon of the Denver Broncos rushes against Chris Jones of the Kansas City Chiefs at Empower Field at Mile High on Oct. 25, 2020.

Melvin Gordon of the Denver Broncos rushes against Chris Jones of the Kansas City Chiefs at Empower Field at Mile High on Oct. 25, 2020. (Photo by Dustin Bradford/Getty Images)

The Broncos player’s DUI case is the latest to get tossed because police refused to provide a breath test due to COVID concerns.

A CBS4 Investigation in February reported that Denver Police, Aurora police, the Jefferson County Sheriff and Colorado Springs police had all stopped giving breath tests to DUI suspects, with varying results.

In Aurora, a woman stopped for DUI last October saw a DMV hearing officer dismiss her DUI case with the officer writing there were not “extraordinary circumstances which prevented the completion of a breath test.”

An Aurora police spokesperson said “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.”

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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.

And in another Denver case last week, a judge effectively killed another DUI case by suppressing blood test results since the female driver was never offered a breath test by Denver Police.In that case, police told the woman: “Because of COVID-19 we’re not doing breath tests right now so the only option is to cooperate with the blood test. Are you willing to cooperate with that?”

The woman took the blood test but the judge ruled police had placed her under “undue influence” and disallowed the blood test.

Harvey Steinberg, one of the woman’s lawyers, told CBS4, “More importantly than one drunk driver is that the police follow the law.”

Steve Burstein, another attorney on the case, said, “We would expect the government follows the laws and makes decisions that are safe and legal for all of us.”

In an earlier interview with CBS4, Denver Police Chief Paul Pazen justified his department’s policy of suspending breath tests saying, “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.”

Ironically, the Colorado Department of Public Health and Environment has said repeatedly that breath tests in DUI cases are still safe, as long as police officers take precautions.

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.”

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While most police departments contacted by CBS4 said they were following that CDPHE guidance and continuing to give breath tests, some are not and attorney Steinberg said he believed many more DUI cases will be dismissed if some police departments refuse to provide breath tests in DUI cases.

Brian Maass