Judge rules in favor of charges
Lund to face careless driving misdemeanor for 2006 traffic fatality
Thursday, February 15, 2007
The 14th Judicial District Attorney's Office filed the appropriate charge against a man involved in a fatal accident, a judge determined Wednesday.
Routt County Court Judge James Garrecht made the ruling despite requests from the victim's family for a harsher charge.
Garrecht made the ruling after hearing two hours of testimony.
Craig resident Jordan Bailey, 18, filed a motion to have Garrecht review the case in an attempt to compel Assistant District Attorney Kerry St. James to file a more severe charge against Dustin Lund of Morrison. Lund, 37, was involved in a February 2006 accident that killed Bailey's father, 43-year-old Michael Bailey.
Lund allegedly was under the influence of methamphetamine when he reportedly fell asleep while driving on U.S. Highway 40 near Hayden and hit Bailey's Ford F-250, which was traveling west.
Lund is facing a misdemeanor charge of careless driving resulting in death. Lund's case is scheduled for disposition March 7.
During the hearing Wednesday, Garrecht explained to the courtroom of attorneys, Colorado State Patrol troopers, Bailey's family and an investigator, that he had never participated in such a hearing because they are so rare.
In essence, Garrecht was asked to determine whether the DA's Office had acted "arbitrarily or capriciously" in filing the charge it did. Usually such hearings are held when the prosecution refuses to file a charge at all, not when the victim's family challenges the appropriateness of a charge.
"My job is not to substitute my judgment for the judgment of the people," Garrecht said. "As long as what the DA has done isn't arbitrary or capricious, I can't substitute my judgment for theirs."
The controversial case reached this point after St. James received information that Colorado State Patrol troopers seized Lund's blood samples and operating logs illegally. Because the evidence was seized illegally, the DA could not have pursued more severe charges because the blood samples and driving logs wouldn't have been admissible in court.
"The prosecutor is the servant of the law," St. James said. "Guilt and suffering shall not escape, and while we are at the liberty to deliver hard blows, we are not at liberty to strike foul blows."
Joe DeAngelo, chief investigator for the 14th Judicial District, presented an in-depth analysis to Garrecht outlining why the DA's Office and several independent reviews of the case by other attorneys in the state resulted in the same conclusion.
"The Colorado Bar Association says a prosecutor shall refrain from prosecuting a charge that is not supported by probable cause," he said. "Looking at state statutes, case law and probable cause, at best, a jury would hear the alleged acts of (Lund's) bad driving during a 1.5 hour period, and that he appeared 'fine' at a delivery."
Kris Hammond, Lund's attorney, agreed that if the case went to trial "the defense would prevail" on a motion to suppress Lund's blood tests and driving records because of the illegal seizure.
"We knew we had a 50/50 shot," Jordan Bailey said. "There's not a whole lot more we can do, but we're going to make a difference somehow."
Michael Bailey's sister, Kathy Oberwitte, said she will continue to pursue a recall effort to oust Roesink from office.
"The decision made (Wednesday) has no effect on the recall," she said. "It may take a different direction, but the community has spoken out and the voice of the people needs to be heard."
Oberwitte has said the recall is not entirely based on her brother's case.
Comments
electronicsgeek 6 years, 3 months ago
I would like to know why the DA's office and the judge say that the blood test is illegal, under Federal Motor Carrier Safety Regulations a driver found to be at fault in an accident and receives a moving violation, and/or death, and/or tow able damage to either vehicle the CDL holder is to be tested for drugs and alcohol. It sound like to me that our local system is by passing Federal Law and sawing it is no good, to me as being a CDL holder they are saying I DON'T have to follow the FMCSR, which means no log book and I can drive drunk and get away with it. I DON'T THINK SO, Federal law overrides the state in this matter, because the state says there is no laws governing this type of stuff on the state books, will it is in the Federal books.
bolter 6 years, 3 months ago
No citation was issued until 6 months after the incident. Taking blood is a "search" and is illegal unless supported by probable cause. The CSP's reports say that they saw no indications of drug or alcohol impairment (i.e. no probable cause).
katobe 6 years, 3 months ago
First I must say that our family appreciated the time by Judge James Garrecht. He was very sincere and did comment on how he could see Jordan's frustrations, the CSP and the DA. Our family subpeoned the troopers so that they may testify against their own evidence that was collected. However, laws changed so they were not allowed to speak in the court room. That totally blew us out of the water and gave no opportunity for rebuttle on the evidence. According to CSP they did everything by the book, with their I's dotted and their T's crossed. Most importantly, I found it disturbing that Jordan's requested hearing turned into a advisement hearing for the defendant. I'm not sure who invited the defense council and Dustin Lund but I found it totally inappropriate for them to be present when Jordan (nor us) have NEVER seen or heard from Dustin, nor received an apology. This was not the time or place for us, the victims, to be subjected to a man who took our loved ones life 354 days ago. What impecable timing to rip open the wounds that are trying to heal. However, it shouldn't surprise me as we are talking about the 14th Judicial District who doesn't comply with article #1 of the Victim's Right of the Colorado State Statute, "to treat a victim with fairness, respect and dignity." Furthermore, I did not say that the recall would be taking a different direction. Our recall effort is in full swing, with 55 volunteers circulating petitions in Moffat, Routt and Grand counties. Just yesterday I deliverd petitions to two law firms in Steamboat Springs. As I said, and will continue to say this fight isn't over the death of my brother it is a fight for justice for our communties with our 14th Judicial District. The grounds for recall spells it out very clearly. In conclusion, I thank you all for your kindness, support and prayers.
katrinkakelly 6 years, 3 months ago
Very concerning to me after what Robbins went through in Hot Sulphur Springs!
katobe 6 years, 3 months ago
I just read that story during my break. The Harris' have our deepest sympathy for the loss of their son. We too have "fought all the way to the end. We stood for what we felt was right." as quoted by Mr. Harris. This is why I am so compelled to do what the community has been asking for years, a recall effort, to stop the acts of "justice wasn't even close to being served here" again, quoted by Mr. Harris.
katrinkakelly 6 years, 3 months ago
He had a CDL and on meth when this accident happened?
Mr St James the only foul blow I see is that the Colorado State Patrol blew it on obtaining crucial evidence!
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