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Durango Police Department Wants To Renew An Old Battle Over Unlawful Breathalyzer Policy

July 7, 2013

Dude, it would be awesome if you WordPress people can respect some real controversial cop stuff…Cause it’s actually amazingly awesome to see the whole picture…

Full disclosure: This is a 3:00 AM post. Just got home after partying downtown, where the local cops decided they want to renew an old battle. The fuel that rekindled this war between justice and swine was sparked by both blogging and vodcasting, giving one point to all you people out there. (c’mon, you’re on WordPress, you know what I mean by “You People”) Below is the video associated with the post I made following an email conversation with a Durango sargent. All details including tonights confrontation will be explained below.

So anyways, I’ve got a professional[ish] blog (link on the right), and working with this new vodcast company, I thought it’d be cool to kinda do a video entry for all of my marketing blog posts to help kinda show off the concept.

When the Durango police tried taking me to jail (sober) to give me a breathalyzer, and I flat out refused on the grounds that I was sober and it was straight-up bullshit (details below) I had to blog about it, especially after the email conversations between myself and a Durango Sergeant, which will also be quoted below:

Okay, in drunken hindsight, I realize the emails are long and tedious, therefore I will leave them for referencing at the end and cut to the chase for all you impatient people out there. I encourage all of you to read it though, as I feel that it’s definitely worth seeing first-hand how ignorant the enforcers of our fiat laws are. My email is just as it is in the quotes. Email me and I’ll forward emails to confirm this post. I’m about transparency.

Okay, so tonight’s story which is actually interesting

So anyways, downtown drinking tonight and me and a friend are walking past the Irish Embassy and there’s about four cars (SUV’s and sedans) and 5-6ish officers. With so many blueberries and cherries lighting up the Colorado night sky, and so many golden stars making the walk uncomfortable, it’s hard not to be a smartass in the passing; Both to the cops burning up my tax dollars like Boulder celebrating Amendment 64  [just sitting around, 5 of you, c’mon now?], as well as the bar that probably closed early because there were five cop cars out front.

In my passing, an officer recognized me from the YouTube video embedded above. He was quick to inform me that I was misinformed, which is awesome, this means a debate, especially on something that I’ve done [30 minutes of] my homework on, reference quoted emails at bottom.

I’m somebody who is eager to learn, and I love when someone can prove me wrong. So I was eager to engage in debate, so I inquired about how I was mistaken. I did not get the insightful [drunken] debate I wanted. There was nothing.

There was no debate. How could there be? It would have resulted in a complete failure on their end. A liability for them perhaps, because as a blogger, SEO, podcaster (not really, but sort of I guess) and all around badass (promise I’m not cocky) I am able to communicate truth, just as I have in the referenced YouTube and linked to blog post, and just as I am here right now.

The proof is in the emails quoted, I’ve even bolded the relevant bit.

Besides from that, you don’t even know; Working direct mail in the families print shop, I have quite literally argued the difference between the words and and or, as it reads in the Domestic Mailing Manual which have resulted in, shit, thousands and thousands and thousands of dollars.

Like I’m not joking you, I’ve cut the Postal Service checks for $40,000-ish before and I’m not bullshittting, so you can imagine the due dillegence I’ve placed in postal regulation, mail preparation and postage optimization, and that’s USPS.

Criminal law ain’t shit compared to postal regulation. Just read the FAST manual*NO-JOKE* that manual is the instructions on how to make an appointment for mail drop-off with the Postal Service. That manual is almost 500 pages long.

Before starting a career in direct mail, I thought I was pretty good at making appointments. I’ve done them before, so how hard can scheduling appointments be? Like I said, criminal ain’t shit compared to postal regulation.

And to any MSP’s doubting my knowledge, ain’t it interesting that DM-109 doesn’t even make reference to EDDM? Yes, I’ve read both DMM and DM-109 and I [almost] guarantee you didn’t even know DM-109 existed, even if you’re a postal employee! Dude! That’s cause I’m on my shit….

Did I Mention Criminal Law Ain’t Shit?

Dude, I should just read that “book” (I don’t know what the “book” is called, so I’m tempted to call it the Bible) and take that ****ing BAR exam. I mean c’mon now? 500 pages for making a ****ing appointment! I’ve said it twice (think) and I’ll say it again;

Criminal Law < Postal Regulation

So what did I do? I researched the ****ing law! Sorry about all the asterisks, as an SEO I’m a little skeptical about cussing. Search engines and platforms may not like it. But to the point, I read the law. Imagine that; I read a ****ing law. I mean, who reads laws? apparently not the douches on the street we got enforcing said laws upon us. It became apparent so, quoted at bottom.

So Dudes, Cop People? You Really Want To Renew This?

I mean, I really feel like now I’ve got to take this to the city council. I mean, you rekindled this dance between the badged bullies and the good old “sober enough” guy, and dude, you guys are ignorant. How are you guys supposed to enforce when you do not understand what to enforce? C’mon now! No response on the last email I sent. The dates are quoted in the email. Once again; I can forward.

Now for the emails;

Sorry for the misspellings. Any police contact gets me heated. I mean, really? Quit harassing me! I don’t want no harm on nobody! So proofreading correspondence with police personal doesn’t sound the least bit appealing

RE: Question regarding DUIs and breathalyzers

personal
x
Bartley, Elizabeth <BartleyEJ@ci.durango.co.us>
Jan 31

to me

Nathan, I have received your inquiry.  Please let me know the date and time of this incident so a supervisor can get back with you.

 

 

Elizabeth JBartley, Administrative Assistant

Durango Police Department

990 E 2nd Avenue

Durango CO  81301

970-375-4701    Fax 970-375-4718

bartleyej@ci.durango.co.us

Preconceived notions are the locks on the door to wisdom….by Merry Browne

 

From: Nathan Hammond [mailto:nathan@durangomarketer.com]
Sent: Thursday, January 31, 2013 14:05
To: PD Admin
Subject: Question regarding DUIs and breathalyzers

Hello,

I recently got pulled over for a broken headlight and ended up handcuffed in the back of an SUV before a breathalyzer showed that I was good to drive. The officer was not helpful, especially when I inquired about my rights and options, instead he was incredibly vague, answering my questions with a question; “Does this mean your refusing the roadside?”

This led to me being paraded around for a roadside I originally did not want (they’re designed to fail….Especially on ice….Think about it) he was incredibly intimidating and not accommodating when it came to consulting me on the laws, my rights and what could happen.

I’ve had many friends tell me similar stories, and the majority of them have all been completely, 100% sober.

So where does “policy” turn into “harassment”? and why do you not have handheld breathalyzers in your vehichles, especially when competing in programs such as Bring The Head (which I understand you guys do great in….Imagine that) and patrolling in what could be called the “DUI Mecca” of the United States?

Also, since I never got an answer out of the officer, I want to know what would of happened if I refused the roadside? I never got an answer, even after being “un-arrested”.

Especially since drivers are offered two of three methods:

  1. Roadside
  2. Breathalyzer
  3. Blood Test

With the roadside being forced upon us, that leaves only one option.

Which, by the way, your officer claimed his breathalyzer was inaccurate and if I went to the station I would of been arrested before;

  1. That is kind of a slanderous claim, especially since I had only had one beer and was sober
  2. That is an omission that you’re breathalyzers are inaccurate. The roadside is also inaccurate, as I demonstrated.

By that sense, by forcing the roadside upon us, the officer then corners us into a decision of picking the one accurate test which takes weeks for results, or risking an inaccurate test and a false positive without any blood test safety net.

I have a problem with this…..Everyone I talked to has a problem with this.

I would really like a response.

Thanks.

Which was replied with this:

Taylor, Bobby <TaylorRM@ci.durango.co.us>
Jan 31
to me

 Mr. Hammond,

Your e-mail concerning questions reference your recent traffic contact was forwarded to me. I will try to answer some of your questions the best I can, but some of your inquiries were somewhat confusing.

I was not present when you were contacted so I spoke with the officer who contacted you as well as his direct supervisor to get some of the details so I could be better informed and not guess as to what or why something happen.

  1. You were contacted for a lawful reason; a head light out. That does not seem to be in dispute so I will not go into that any further.
  2. When an officer makes a traffic contact and he/she has reason to believe the driver is under the influence of alcohol and or drugs they have the right to ask the driver to perform voluntary roadside maneuvers to, “help” them determine if that person is safe to operate a motor vehicle. In your e-mail you do not state what your question to the officer was when he replied, “Does this mean your refusing roadside?” I assumed and he confirmed he was clarifying as to if you wanted to do the voluntary roadside or not.

The official name for the roadside maneuvers is called the S.F.S.T. (Standard Field  Sobriety Test). Officers are trained to do them a specific way and order. The P.B.T.         (Portable Breath Test) which you speak about is not part of those S.F.S.T.’s and just another tool we have available. The P.B.T.’s are not state certified and therefore we         cannot use them in court on DUI/DWI cases. The officer said he tried to explain that to you. If you were to take an official breath test that would be done at the police                department on a state certified instrument.

The P.B.T.’s are expensive and we only have a limited number of them. We do not have enough to outfit each car or officer with their own P.B.T., therefore the            officers must share them and at times they just are not available.

  1. If a driver choose not do the voluntary roadside maneuvers (S.F.S.T.’s). The officer can still take a person into custody for investigation of DUI / DWI if he/she can articulate the signs of intoxication or impairment. The State of Colorado has what is called an Expressed Consent Law. This basically means that by the act of driving in the State of Colorado the driver has given his consent to a blood or breath test to determine the alcohol content in his/her blood or breath. The driver can choose to refuse the tests, but faces losing his driving privilege in the state of Colorado for one year.
  2. Officers can give you a basic explanation of your rights, but we are not lawyers and cannot give legal advice. It sounds like the officer did tell you that the performance of the roadside maneuvers were voluntary.

I’m not going to get into what all your friends told you, because I do not know their stories and they are completely irrelevant to your case.

You speak of competing in a program called “Bring The Head” I have never heard of this program and do not have any idea what that is.

I tried to answer your questions the best I could, but in short the officer had a reason to contact you, he saw signs of intoxication, you choose to do the roadside maneuvers. After the roadside maneuvers the officer thought you were in the impaired range and was going to take you into custody and ask you to take a breath or blood test. A PBT became available and to give you the benefit of doubt he had the PBT brought to his location. After you blew into the PBT he said you were just under the legal limit therefore he choose to release you. He did not have to go off of the PBT results he still could have requested you take a breath or blood test based off the expressed consent law. This officer did follow proper procedure during you contact.

I hope I have answered your questions adequately, if not I would be happy to try and explain it better, but I would recommend either in person or via telephone as I find it hard to communicate effectively by e-mail.

Feel free to contact myself or Sergeant Robert Brammer (officer’s direct supervisor) Tuesday through Thursday 4:00pm to 3:00am.  The easiest way to contact us would be to call central dispatch at 385-2900 and ask for either one of us. We will call you back as soon as possible.

Sergeant Robert Taylor

Durango Police Department

Which I replied with this string:

Nathan Hammond <nathan@durangomarketer.com>
Feb 1

to Bobby
I’m sorry, I meant “Bring The Heat”, AKA 100 Days Of Heat. I’m going to look into the SFST and this Expressed Consent Law and I will follow-up further, in-person so there is no confusion.

No, I told the officer I did not want to take the roadside that was designed to fail and asked him “Can I have a breathalyzer”.
He answered my question with a question:
 
“So you are refusing the roadside?”
He never answered my question prior to the roadside, instead answered with a question. I answered, and answered “No” because I felt saying “yes” would have been an omission of guilt. If he was being a public servant, he should of been transparent instead of answering my question with a question.
I should of been firm, called him on it and demanded my original question answered….But hindsight is always 20/20, right? Next
Nathan Hammond <nathan@durangomarketer.com>
Feb 1

to Bobby
One last question real quick, sorry for blowing up your email:

Prior to me failing the roadside, Gallegos informed me that I had already taken the roadside, and that was “one of my two options between the roadside, breathalyzer and blood test” and I needed to choose my second.
I’m reading § 42-4-1301.1. right now, and it’s stating that drivers have a choice between a blood test and a breathalyzer, but does not mention the roadside as being an option, and does not state the driver gets “two out of three” options. Is that an internal policy? Is there any place where I can find that language in writing?
Or is that the “you failed the roadside so now you have one of two options” falsely defined by the officer as the driver having “two of three options; Roadisde, blood test or breathalyzer”?
When the lights go on, everything starts getting recorded, correct? So the dialogue of at least us in the vehicle should be available. That is where he stated I have “used 1 of my two options”, implying that if I had refused the roadside that I could of leveraged both the breathalyzer and blood test as options.
 
I’m just trying to verify if that statement was factual or not, because he did word it as though I could of opted-out of the roadside and chose the other two instead.
Following up with you, this is from the Expressed/Implied Consent law you told me to reference, from what I’m reading, your PBT’s work fine and are admissible in court.

Can we please work on making it so sober drivers do not need to be brought into the station in order to prove their innocence? It’s innocent until proven guilty….Not the reverse way around. Even though no one else in power honors our rights, it would be great to see them acknowledged here locally.
I do plan on bringing this to City Council, the City Manager, and City Lawyer. The law states that your PBT’s are admissible in the court of law…..Why are you claiming otherwise?
If it’s nothing other than “it’s never come to our attention”, than I’m proud to be the one to finally bring it to the stations attention.
Why are we harassing sober drivers by bringing them to the station, when previous rulings have proved that unneeded?
The original email address before my issue got forwarded to Bobby Taylor is copied in-case anyone else wants to weigh in on this.
I have been talking to people and hope to have more whistle-blowers come forward. It’s amazing how many people do not pursue things when charges are never filed.
Quoted below, the sections of the expressed consent law dealing with former court cases stating that PBTs are admissible;

The provisions of former subsection (3)(b)(I) (currently subsection (7)(b)(I)) do not establish any minimum foundational requirements for the admissibility of test results at criminal trials or revocation hearings, but rather indicate that if the department of revenue chooses to introduce a manufacturer’s or supplier’s certificate of compliance for a test kit, such certificate shall constitute a sufficient evidentiary foundation. Siddall v. Dept. of Rev., 843 P.2d 85 (Colo. App. 1992); Thomas v. People, 895 P.2d 1040 (Colo. 1995) (decided under former § 42-4-1202.2 as it existed prior to the 1994 recodification of title 42).

Results of breathalyzer test were admissible in DUI proceeding where prima facie showing was made that testing device was in proper working order and was properly operated by qualified person and that test was administered in substantial compliance with department of health regulations. Thomas v. People, 895 P.2d 1040 (Colo. 1995) (decided under former § 42-4-1202 as it existed prior to the 1994 recodification of title 42).

Failure to provide certification documents as to breath test instruments went to weight of breath test results and not to their admissibility. Thomas v. People, 895 P.2d 1040 (Colo. 1995) (decided under former § 42-4-1202 as it existed prior to the 1994 recodification of title 42).

Even when the breath test is not performed in strict compliance with board of health rules, the results of such test are admissible so long as the proponent of the evidence lays a foundation which satisfies the court that the test is reliable. People v. Bowers, 716 P.2d 471 (Colo. 1986); Thomas v. People, 895 P.2d 1040 (Colo. 1995) (decided under former § 42-4-1202.2 as it existed prior to the 1994 recodification of title 42).

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