 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
People v. Kearns5/27/1999
JUDGMENT AND SENTENCE AFFIRMED AND CAUSE REMANDED WITH DIRECTIONS
Division V
Davidson and Briggs, JJ., concur
Defendant, Jerry T. Kearns, appeals the judgment of conviction and sentence entered upon a jury verdict finding him guilty of vehicular assault and driving under the influence (DUI). We affirm, but remand for imposition of sentence on defendant's DUI conviction and for correction of the mittimus.
Defendant was involved in an accident in which the pickup truck he was driving struck a motorcycle in an intersection, severely injuring the driver of the motorcycle. He was charged with vehicular assault, §18-3-205(1)(b), C.R.S. 1998, a class four felony, and with two misdemeanor offenses, DUI, §42-4-1301, C.R.S. 1998, and DUI per se, §42-4-1301(2)(a), C.R.S. 1998.
Prior to trial, defendant moved for dismissal of the charges or alternative relief, alleging that the police had failed to obtain and preserve exculpatory evidence specifically, a blood sample from the victim that could have been tested for alcohol or drugs. After several hearings, the trial court denied the motion.
At trial, the prosecution presented evidence that the collision resulted from defendant's intoxication and his failure to stop at a stop sign. Investigating officers testified that: (1) following the collision, the victim was unconscious and immediately taken from the scene by ambulance; (2) defendant admitted having consumed alcohol, appeared to be intoxicated, and failed a roadside sobriety test; (3) skid marks on the pavement were inconsistent with defendant's initial statement that he had stopped before proceeding into the intersection; (4) tests indicated that defendant's blood alcohol level at the time of the accident was .161 milligrams of alcohol per 100 milliliters of blood; and (5) the victim had been traveling on a through street and had the right of way.
Defendant presented evidence that the victim's divorce had become final on the day preceding the accident and that the victim had made purchases at two bar/restaurants that evening. The defense theory was that the victim had been drinking alcohol, possibly had run a stop light at the previous intersection, and was driving his motorcycle at a high rate of speed at the time of the collision. Defendant contended that the victim's actions constituted an intervening cause of the accident.
The jury found defendant guilty as charged. However, prior to sentencing, the trial court granted defendant's motion to vacate his conviction on the first DUI count because it was a lesser included offense of vehicular assault. The court then sentenced defendant to the Department of Corrections for a period of three years, plus two years mandatory parole, for vehicular assault. The mittimus does not reflect imposition of a sentence for defendant's remaining DUI conviction.
I.
Defendant contends that the trial court erred in denying his motion for dismissal or alternative relief based on the officers' failure to obtain a blood sample from the unconscious victim for alcohol testing. He argues that their failure to do so denied his right to due process and was contrary to statutory mandate. We find no reversible error.
A.
Contrary to defendant's contention, we conclude that the officers' failure to obtain a test of the victim's blood did not violate defendant's right to due process.
Unless a criminal defendant can show bad faith on the part of the police, failure to preserve evidence "of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant," does
Page 1 2 3 4 Colorado DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|