Coming to a “Check Point” near You
One Colorado police chief is preparing to launch a controversial practice in the fight against drunken driving by seeking search warrants that would give his officers the power to have blood drawn from uncooperative suspects.
To Chief Bruce Kozak of the Avon Police Department, the blood in a suspected drunken driver’s veins is no different than a gun next to a murder victim — evidence that must be collected by investigators.
“This is actually a search warrant to search a person for evidence of a crime,” Kozak said of the plan he intends to implement this summer. “We believe the blood, of course, of a suspected drunken driver is very important evidence.”
Kozak’s plan is part of the “100 days of heat” crackdown on drunken driving by law enforcement agencies across Colorado. Kicking off this Memorial Day weekend, the unprecedented summer-long effort will involve 150 sobriety checkpoints and increased enforcement around holidays.
Kozak’s proposal is the most controversial, and it’s far from clear whether it will stand up in court.
“He’s going to run afoul of established case law and statutes,” predicted legal analyst Scott Robinson.
“I think it’s a close call,” said attorney and radio talk-show host Craig Silverman, a former prosecutor who has defended suspected drunken drivers.
“If I didn’t think it would hold up, I certainly wouldn’t go for it,” said Eagle County District Attorney Mark Hurlburt.
“But I think we can do this.”
Kozak spent 22 years in the Mesa Police Department in Arizona before he was named chief in Avon three years ago. In Arizona, he said, it was accepted protocol to seek search warrants in cases where suspected drunken drivers refused to submit to a blood or breath test.
So now he plans to bring that same idea to his town of 12,000 located about 10 miles west of Vail.
“We all know that DUI is the most dangerous crime that we have,” he said. “People are killed by this offense more than any other type of crime.”
Under a state law called “expressed consent,” Colorado drivers are presumed to have already agreed to take a breath or blood test if they are stopped on suspicion of drunken driving. Refusing to take a test can mean an almost immediate one-year driver’s license suspension.
But many repeat drunken drivers already have suspended licenses, Kozak argued, and therefore there’s little incentive for them to submit to a breath or blood test.
“We’re hoping by doing this we can obtain some favorable case law so that the program can expand throughout the state,” Kozak said.
The Denver Post, as part of an ongoing examination of drunken driving in Colorado, last month detailed some harsh realities of the state’s battle to get impaired drivers off the road. Each year, for example, about one-third of the roughly 30,000 people busted for drunken driving have at least one prior DUI arrest.
Robinson believes judges will ultimately shoot down the idea. The Colorado legislature, he noted, took away the choice to refuse a test in drunken-driving crashes that leave someone badly injured or dead. But legislators didn’t impose the same requirement on DUI arrests that don’t involve serious crashes.
“There’s no constitutional issue here,” he said. “But since the legislature has created a structure for certain sanctions to be imposed if you refuse a blood or breath test, it’s obvious you have a right to refuse unless there’s serious bodily injury or death.”
Silverman, who said he has defended people accused of both vehicular assault and vehicular homicide, called Kozak’s idea “creative” but, like Robinson, said the legislature specifically gave motorists the right to refuse a test in ordinary drunken-driving cases.
Hurlburt, however, said he sees an opening in the existing law — one he thinks will allow Kozak to carry out his plan.
“Granted,” Hurlburt said, “expressed consent doesn’t specifically spell out that we can get a warrant, but it also doesn’t spell out that we can’t.”
Kevin Vaughan: 303-954-5019 or firstname.lastname@example.org
The arrival of the long Memorial Day weekend will see law-enforcement agencies across Colorado launch what is expected to be the state’s most intensive summer- long crackdown on drunken driving.
Dubbed “100 Days of Heat,” the campaign is expected to include various efforts aimed at getting drunken drivers off the road:
• The Colorado State Patrol plans to put every officer, including Chief Jim Wolfinbarger, on the road this weekend to look for impaired and aggressive drivers.
• Numerous agencies plan to set up a total of 150 sobriety checkpoints over the course of the summer. That is more than the past two years combined and an average of 1.5 checkpoints a day.
• Various agencies plan to ramp up DUI patrols for extended periods, including the first three weekends in June, the July Fourth weekend, the last two weeks of August and Labor Day weekend