Court to allow testimony about alcohol in fatal car wreck |

Court to allow testimony about alcohol in fatal car wreck

by Jane Stebbins

FAIRPLAY – District Court Judge Kenneth Plotz Tuesday denied motions to suppress statements regarding Lee Phillips’ blood-alcohol level following a fatal car accident Jan. 15.

The Hartsel man is charged with vehicular homicide, vehicular assault and driving under the influence relating to an incident in which he veered off Highway 9 between Fairplay and Alma and overcorrected, crossing into the path of a car driven by Charles Graham of Breckenridge.

Graham’s passenger, Marcus Shirley of Farmer’s Korner, was killed in the incident. Graham was critically injured. Phillips injured his arm.

Defense attorney Rodney Loomis asked Plotz to disallow testimony expected at Phillips’ trial regarding Phillips’ failure to pass part of a roadside sobriety test and the legality of the Colorado State Patrol (CSP) officer to then request a blood draw to determine Phillips’s blood alcohol level.

CSP trooper Melvin Thomas, who was the first law enforcement officer to arrive at the scene of the accident, said he first went to Phillips to determine what happened. Phillips told him his name, but wouldn’t say what occurred. Thomas said he then went to Graham’s car to assess the situation there, then conducted a cursory investigation of the scene. He said skid marks on the highway, a broken lane delineator post, Phillips’ overturned pickup truck and the condition of Graham’s vehicle led him to believe Phillips had caused the accident.

Thomas said he again asked Phillips what happened, at which point he noticed Phillips had a “strong odor of an alcoholic beverage, had bloodshot and watery eyes, a pale face and slow hand and body movements.”

Once Phillips was immobilized in the ambulance, Thomas asked him if he would be willing to take an eye-tracking sobriety test, which Phillips said he would. Thomas said he was unable to conduct other roadside sobriety tests because they would have required Phillips to stand up, and medical personnel had immobilized him to prevent further injury.

“I submit that probable cause did not exist, based on what Mr. Thomas saw,” Loomis said. “He saw an accident, he determined there was a slight indication of alcohol – there was nothing else there to indicate Mr. Phillips was under the influence.”

He added that because Phillips was immobilized when Thomas asked him if he would be willing to undergo the sobriety test, Thomas failed to meet the definition of “voluntary.” Loomis also argued that Phillips had been detained and it could be implied he was under arrest.

“He was detained by his own actions, by wrecking his method of transportation,” Thorson said. “And he was detained by medical personnel.”

Thomas’ observations were enough to determine probable cause, Plotz ruled.

” The fact he was strapped to a backboard – taken out of context that could be determined as having custody,” he said. “But the fact was, he was being treated. I don’t consider that to be in custody.”

Phillips, who is under house arrest, faces a July 8 trial.

Jane Stebbins can be reached at 668-3998 ext. 228 or

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