Two district attorneys representing some of Colorado’s largest counties are warning that problems with the state’s ability to conduct blood testing in driving under the influence cases could have much broader impacts across the criminal justice system if they aren’t quickly resolved.
That includes placing in jeopardy cases ranging from vehicular homicide to murder, where toxicology is also crucial.
“I think guilty people will go free if we aren’t able to get these tests done in time and are unable to produce experts at trial,” said Boulder County District Attorney Michael Dougherty, a Democrat, in an interview with The Colorado Sun and its news partner CBS4. “And if we have an individual who is accused and they are actually innocent, they are going to be waiting an extraordinarily long period for the test results to be made available for prosecution and for the defense.”
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18th Judicial District Attorney George Brauchler, a Republican whose district includes Arapahoe and Douglas counties, said the criminal justice system cannot afford a delay.
“This isn’t the kind of problem where we can say ‘Well, let’s see where we’re at six months or a year and make adjustments,’” he said. “We’ve got to continue at the same pace, the same momentum, that we’re at right now. If that gets interrupted, you will see consequences that are not good.”
The problems stem from a change in policy by the Colorado Bureau of Investigation, which last month began testing blood in driving under the influence cases for free in an effort to ease financial pressures on small law enforcement agencies and to better track marijuana use among intoxicated drivers. But in doing so, they effectively shut down a private Boulder lab, ChemaTox, that had been handling the bulk of the testing for agencies statewide and placed a burden on themselves that they admit will cause delays.
Almost overnight, the CBI is now facing an additional workload of 6,000 tests annually, which had been handled by ChemaTox. Citing the CBI policy change, the business is closing, and its 25 full-time employees will be out of work.
ChemaTox owner Sarah Urfer told state lawmakers that the state “took away everything I’ve worked for for my entire career.”
Turnaround times on tests are expected to more than double to a maximum of 60 days, and there are concerns CBI doesn’t have enough staffing to provide expert testimony in a timely manner. That could mean dropped charges if cases can’t meet constitutional speedy-trial requirements.
“We collect blood a lot and send it to the labs a lot to get some answers as to what was going on in that particular person’s body, and potentially in their mind, at the time they engaged in this conduct,” Brauchler said of murders, sexual assaults and officer-involved shootings. “In the absence of being able to get that timely and accurate, reliable and testifiable information … those cases are also at risk.”
On Friday, Gov. Jared Polis’ administration vowed to remedy the situation, while placing blame on staffers of his predecessor, John Hickenlooper.
“While the intent behind the previous administration’s decision to not charge for toxicology testing in order to ensure smaller and rural municipalities have the same tools to keep their roads safe and protect its citizens were good, it’s now clear that the results of that decision has negative ramifications that were not considered,” the Democrat’s office said in a written statement.
Polis’ staff says he will work with CBI, law enforcement and private businesses to find a solution.
CBI Director John Camper sent a letter to the law enforcement community apologizing, again, for his agency’s mistake. “I want to reassure our law enforcement partners that we have developed a plan that we believe will continue to provide effective toxicology testing and court testimony as we move forward,” he wrote, promising monthly updates.
Camper said CBI is working on plans to create a safety net should testing turnarounds jump to more than 60 days, the threshold prosecutors say would really put cases at risk. That plan includes abandoning the free testing plan and starting to charge again to cover the cost of hiring more toxicologists or contracting with private laboratories.
But Camper warned that there is no “executive solution available to the governor to seek resources for a private company without legislative action and a procurement process.” The legislature is out of session until January.
“We will do everything we can to prevent negative impacts to our criminal justice system and I would ask for your support in allowing us to prove that to you,” he wrote.
But Dougherty and Brauchler, who say they and other state prosecutors have been in contact with Polis, stressed that they can’t wait very long for a fix before cases are impacted.
“We’re barely meeting the need, between ChemaTox and CBI combined, in terms of having experts to testify in our hearings and trials (as is),” Dougherty said.
Brauchler said the impact could be that “it’s likely plea bargains will become considerably more generous for the volume of the DUI cases — and maybe even vehicular homicide cases — that we have.”
He said he wants “to remain optimistic and take Director Camper at his word that he’s going to be able to pull this thing off.”
“But,” Brauchler added, “I have significant concerns.”
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