Prosecution Response to Potentially Faulty DUI Blood Tests

On Friday last week, the Attorney General’s Office released a report detailing its investigation of the Colorado Department of Public Health and Environment’s lab, which is responsible for analyzing blood samples obtained through law enforcement’s DUI investigations.  The Attorney General released its report to the Colorado criminal defense bar, the Colorado Public Defender’s Office and the District Attorney’s offices.  Since release of the report, the defense attorneys have raised significant concerns regarding the reliability of the analyses completed by CDPHE.  Aside from the general concern that issues with the blood testing may have led to wrongful convictions, defense attorneys are also troubled by the delay in release of this exculpatory information.

In Colorado, the rules of criminal procedure, specifically Rule 16, require the prosecution to turn over all information related to a criminal investigation in a timely fashion.  Generally, violation of this rule results in imposition of sanctions against the prosecution.  Such sanctions range from a minor sanction, such as a continued court date for the defense to have time to review the newly discovered information, to more severe sanctions, such as suppression of evidence, which prevents prosecutors from being able to use evidence against a defendant.  In extreme situations, cases can even be outright dismissed.  One key question judges must consider when determining whether the prosecution has failed to comply with the rule is whether the information at issue was within the prosecution’s possession or control.  Information contained in the Attorney General’s report suggests that prosecutors’ offices may have been aware of this exculpatory information as early as March 18 of this year and the information is just now being turned over.  The Colorado District Attorney’s Council and the Attorney General’s Office have released statements regarding their position as to the information contained in the report.

The Attorney General’s Office has indicated that as soon as prosecutors in that office became aware of the information, the information was released in a timely fashion.  The Attorney General did not comment on how he believes the District Attorneys offices should handle their cases moving forward or how the District Attorneys offices should handle cases that have been resolved, but involved blood tests completed during the timeframe in question.  In contrast, CDAC appears to have taken the position that nothing in the report suggests that any of the blood tests completed in the relevant timeframe are unreliable.  CDAC cites various checks and balances in place at CDPHE that would prevent unreliable results.  CDAC did, however, state that prosecutors would review cases in which it was demonstrated that the results were, in fact, questionable.  CDAC did not indicate what prosecutors should consider as evidence of unreliability.

To read the Attorney General’s statement please see the following link:

To read the Colorado District Attorneys Council statement please see the following link: