Stomping on the US Constitution: Constitutional Injustice in Montezuma County-Cortez Colorado

        I have waited patiently for several months to tell this story. First, I waited because I did not want the courts to violate my son’s rights as a citizen of the United States any more than they already had by my telling of this story. This is a long story that could have had a much more catastrophic ending had my son not been involved in theater and known relaxation techniques. Yes, you will learn more about that as the story unfolds. I will be submitting a shorter version to any news media that will publish this. I am also reaching out to all other media forums hoping this story will spread. Even if we don't recover any of the damages it is an injustice that must stop. These small towns do not have the right to stomp on the constitution like Montezuma County has.  I am angry, very angry as any mother would be.

            We had planned a civil suit against Montezuma County in Cortez Colorado, but since my son did not die when they violated his right to necessary medicine, we have no damages. However, there are financial damages and constitutional violations. There’s an abundance of those actually, so my hope is that someone out there hears this story and helps us pursue the case against the county for multiple constitutional violations. This entire case has set the country back fifty years. It is something you just do not think will happen in our free country of the United States in today’s day and age, but here in Montezuma County it does. Here in Montezuma County they do not have to abide by the constitution I guess. They can do what they want and get away with it. They almost actually got away with what I would have called murder.

            It is also very hard to teach your children that the justice system is fair and works when things like this happen. I will state that I have many friends and relatives in law enforcement and I completely trust them. Actually some of them have even told me what Montezuma County has done was wrong.

          My son has had a hard time with trusting the police after this incident. He knows that the ones he knows personally  are good but the rest, well, aren’t so much.  As for trusting the justice system, we have both determined that something has to change and we do not trust the system in Montezuma County or the Montezuma County Jail.

            I always told my kids that the only way they will get into trouble with the law while obeying the law themselves is to be in the company of people who disobey the law. After you read this story you will see that thought is completely out the window. You can be completely innocent and still “raped” by the judicial system.

            This could happen to you. It could happen to your child-so please pay close attention to some of the events and be aware of your rights as a citizen of the United States of America. My son did not know his rights at the time. He thought he had to do what a police officer said no matter what. He trusted the officer and had no clue things would unfold as they did.

            On the afternoon of January 13, 2016 my son Kyle had gone to rehearsal because he was in the school play. He was there from 4-6 PM. Then he came home, we ate dinner and played Chinese checkers. Around 10:00 PM he told me he was going to get gas. He also likes to drive around and listen to music which is normal. He took the long way to get gas and turned right on to County Road G from Oak Street. This was a few days after the big snowstorm we had here in Cortez. The shoulder of the road was still snow packed at the time.

            The following are the statements Kyle and I made after I picked him up from jail while it was all fresh in our minds.

Wed January 13, 2016

Kyle’s Statement:

      My mom and I ate dinner, and then we played Chinese checkers until around 9:30. I told my mom I was going to go fill up my car. That was around 10 I think. I decided to go for a drive and drove down Oak Street to G and then was going to go to the highway, to Handymart and home. However, not long after I turned off on road G my tires started sliding and I lost control. I went into the bar ditch. I was not speeding so I just kind of drove off into the ditch. I could not get my brakes to work and could not get my steering wheel to turn. It all happened so fast that I just do not know exactly what happened other than it felt like I hit ice and lost control.

     I called my mom and told her I was in the ditch stuck in 3 feet of snow. My mom said she would call the insurance company to call for a tow truck. She called me later telling me she had called them and was on her way to pick me up until they called to say they were on the way.

      A state patrol officer arrived, when I saw his lights I was somewhat glad because I thought maybe he could help. He told me to get into his car where it was warm. When I stepped out of my car the officer asked if I had been drinking or using drugs, he said he did not smell anything and he did not think I was under the influence but he had to ask. I told him no, I had not been drinking and had not used drugs.

      I got into the officers car, and we sat there while he ran my license and insurance. It was about 5 to 10 minutes. Long enough for him to run them. Then my mom arrived and he got out of the car to go talk to her.

      Before the officer got back in the car, I took a puff of my Pro- air inhaler. When he got back in the car he said he smelled alcohol and asked if I would be willing to take a breath test. I said ok but it will not read right because my inhaler has alcohol and they throw off the breathalyzers. I also told him that the inhaler smells of alcohol. I took the test and blew .084 He asked me if I had anything to drink at all during the day and made it sound like I would not be arrested if I said yes so I lied and told him I had something earlier in the day. He asked how much and I told him a drink about 5 hours before. I hadn't had anything to drink though but just wanted to go home.

     Then he told me to get out of the car and take roadside sobriety tests. He never gave me a choice, he told me to do them. It was very cold outside, the temperature in his car read -3 at one point. It was around 10:45 when I started the test. I did several of them then he had me get back into the car. Then he had me get out again to perform more. It was as if he was making me take more and more so I could fail one. I was scared to death, I have anxiety attacks and was having a panic attack, plus I was shaking like crazy due to the cold. Then he put me back in the car and said to sit down for a bit. The he pulled me out of the car and told me based on the test he was going to arrest me for DUI. He cuffed me and put me back into the car without reading me my rights. He never read me my rights.

     He asked me what medicines I take and I told him that I am on several, I named them and one is Zanax but I told him I don’t take them anymore.

     He went over to talk to my mom and then she came over to the car. My mom stopped and talked to me and I asked her to come to the jail to get me. She said she would. She said something to the officer about the inhaler and he handed it to her, she sprayed it near his face and told him it smells like alcohol. I asked for a puff of it and he let me have two. That was the last time I was able to use my inhaler. This was around 11:30 PM

     We sat and waited for the tow truck for a while and he told me I needed to take a chemical test and if I refused then he said “you will lose your license and we will take your car.” I told him I demanded an attorney. I told him I wanted a lawyer and was not going to do or say anything else until I saw a lawyer. He told me that I cannot have a lawyer. As I was sitting in the car I thought of my responsibilities, school, my play and so I agreed to a test because I knew I would pass it. I asked for the blood test because of what the first breath test blew and I knew it was wrong so I did not want to take another one that would be wrong.

     The officer told me the breath test is immediate but blood would take a while, but the officer made it sound like I could go home and not be booked if I agreed to the test and blew zero at the jail. I was concerned that the breath tests would be wrong again and just wanted to go home. The officer told me I could go home as soon as I blew zero at the jail. I figured the blood test would only take a day or two. I did say repeatedly that I wanted a lawyer. (I don’t know any of this and needed one to protect my rights as a citizen of the United States) we left the scene around 12:00 and went to the hospital for the blood test. While there the nurse drew the blood and put a label on it, it was not flipped over or mixed at all. That took just a little bit of time, then we went to the police station around 12:30 AM January 14, 2016, and sat there maybe 5 or 10 minutes and then they took a picture of me, patted me down, and took a breath test. I blew zero. I kept asking when I could go all this time and still demanding a lawyer.

     When I blew zero the officer said that was weird, he said, “It shouldn’t have left your system that fast.” He filled out the report, told me he charged me with open container and careless driving. He had told me earlier that he most likely would not give me a ticket for going into the ditch. The new charges were as if he was just trying to add things to this weak case. He gave me a copy and left.

     Many times when I asked for a lawyer he would tell me that it doesn’t’ work that way. This was after he cuffed me and DID NOT read me my rights.

     The jailer processed me and I asked several times if I could make a phone call, I had given up on the attorney at this point. The jailer said I could not make a phone call. Then I asked for my inhaler a couple of times and he told me he couldn’t give it to me because the proper labeling and prescription was not with it (the box it came in and prescription) who carries that stuff around? The inhaler does have ingredients and labeling on the medicine cartridge itself. The jailer said he would ask the Sgt though. Then he put me in a cell for an hour. At one point, I knocked on the door and asked when I could make a phone call and if I could have my inhaler. He said the Sgt said no but he would ask again. He pulled me out to fingerprint me and I asked for my inhaler again. I told him I could not breathe. He said he was sorry but he couldn’t give it to me. I told him I wanted to go to the hospital then and he said I’d have to have $1000.00 to pay, I told him I have insurance and he said it does not cover if you are incarcerated. He also said he would ask the Sgt because they will only take me if they think I need to go.

     He put me back in the cell. I asked for a phone call again and he said no. I waited there for 3 hours. .During this time I would knock on the door asking for my inhaler but was never allowed to have it. For a part of that time I seriously thought I might die because I could not breathe. I have never been denied my medicine when I have asthma attacks. I was scared to death and panicking because I am also claustrophobic. I finally lay down on the mat they give you to lay on the cold hard floor and lay very still telling myself to relax.  I used the relaxation techniques my theater teacher taught me which I believe saved my life.I still struggled to breathe but it helped some. I was in the jail cell where they denied me my life saving medicine from 12:30 AM to 5:30 AM. I still never got my phone call or my lawyer.

     I was released Thursday at 5:30 AM January 14, 2016. My mom had to get a bail bondsman to bail me out. I was starting to wonder if I was every going to get out because they would not let me use the phone to call.

     Since this arrest I have learned a lot about my rights and the officer never told me if I had agreed to a breath test and it blew zero when we got there I would not have been charged, he did not tell me that I would be charged no matter what if I take the blood test because it is not immediate. I knew I was not drunk and figured if their machine worked right, I would go home. This was why I wanted and demanded a lawyer many times before AND AFTER I was arrested. I wanted someone there to protect my rights and my life.

Kim’s (mom) Side

     Kyle and I ate dinner and played Chinese checkers, 3 games. Then around 10, he said he was going to get gas. It was not even 15 minutes until he called and told me he had hit ice and run off into a ditch. So I told him I would call the insurance and get the tow arranged, and then I would come get him. I wanted to get all of that rolling. Once I got it arranged I called to tell him I was on my way.

     When I got to Kyle and his car, I saw the police lights and was glad there was an officer there. Then I would not have to worry about things. The tow company had just called to say they were on their way too.

     The officer walked up to my car and I asked where Kyle was. He told me in his car keeping warm. We looked at the car and talked about how stuck it was. Then I said something to the effect that Kyle could come wait with me. He told me that he needed to wait around to see if there were any damages to Kyle’s car. I asked him if Kyle was going to get a ticket and he told me that depended on if the car had damages or not. I told him it is all beat up and old and he said he would see if there were any new damages. He said if there are then he will call it an accident and had to issue a ticket. He told me to get back into my car.

     I watched his car and all the sudden he had Kyle out doing roadside sobriety tests. I was surprised because he was not drunk and had not been drinking at the house. My first thought was his inhaler and how I tell him he smells like booze even when we are in the car and I know he has just used it. It smells like alcohol for a while after he uses it. I also was wondering how in the heck he could pass a test in that freezing weather and add to that his anxiety. As for the weather, I was shaking violently while I was talking to the officer.

     The tow truck came and I talked to them. Then I saw them cuff Kyle and the officer came over to me and told me Kyle blew .082 and he was taking him in for DUI because of that and he failed some of the tests. I made a comment about how I could not pass them in the cold. I went with him to the car to get Kyle’s things and talked to Kyle. While we were at the back of the car I saw Kyle’s inhaler and squirted it in the officer’s face to show him how it smells like booze, he did not comment. Then I went to talk to Kyle and he asked me to get him at the jail. I said I would. Then he asked for a puff of the inhaler and also said the cuffs were too tight and asked if they could be loosened. I went back to my car because I was shaking violently from the cold again and never saw if they loosened his cuffs.

     The officer and tow driver told me they would have to impound Kyle’s car. I told them that I work out of town and asked if they could just bring it to my house. They decided to bring it to my house. I never saw the officer look in the car.

     The tow driver needed me to move because two of them had to get Kyle’s car out because of how it was stuck. It was on an incline and they did not want to tip it over. So I moved behind the cop cars. (Another officer had shown up at some point) The arresting officer came to my car around 12 and told me he was going to take Kyle to get a blood test. He said he finally convinced Kyle that was what he needed to do or something like that. I asked how long it would take and he said it would all take about 40 minutes and then I could pick him up at the jail.

     He got back into his car and I never saw him get out again. He left about 10 min later.

     I waited for the tow truck to get the car out. The other officer said he needed to stick around to see if the car was damaged. So once it was on the tow truck I went home and they brought it home. I looked it over in the dark and could see no new scratches. The tow driver said there were some but with all the mud I do not know how they could tell. (I looked the next day and there are no new scratches on the car.)

     Once the car was at the house I went to the jail. This was around 12:40 AM Jan 14. The jailer did not even know who Kyle was and told me once they get him there it may take an hour or more to book him because if he gets busy he has to do something else. So, I went home and called in 40 minutes. Kyle was there but they said they hadn’t booked him yet. He was in a holding cell waiting to be processed. I asked if he could have Kyle call me when that was done and he told me that he can’t tell Kyle to call me but if Kyle asks to make a call he can call me. So I waited for 40 more minutes and they said it would be around 30 minutes so I said I would just come there then.

     I arrived at the jail around 3 AM and the jailer said it would be $1,000.00 bail. I about fainted. He gave me a list of bail bondsmen numbers. I called them until I reached one. The bail bondsman said he had to be blowing zero before they would release him so I needed to find out if he was. When I asked, the man who answered the intercom said he blew zero when he got there. So I asked why he was even booked and he said that is not his call. I went to get money and the bondsman had the paper work started. He finally got there at 4 AM and this all took until around 5:30.

     They handed me Kyle’s inhaler and gave him his driver’s license. The officer did not take Kyle’s license.

     We had to pay $150.00 for bail and $40.00 court fees.

     On Friday the 15^th of January Kyle went to a pre-trial hearing and was sentenced to random drug and alcohol tests as a part of the pre-trial process. This is all before he has been convicted of anything. It was even before he went to court to plead innocent. This is a complete violation of his constitutional rights.

     Kyle said the jail was horrible, they have mats on the cold floor, they have a toilet that does not work and it is cold and awful. It was a very terrifying experience for him. He also had to be searched completely before putting on the jail clothes.

     On January 16 Saturday Kyle had to go in to drug test. It was humiliating and horrible. He had to undress completely. This is all for someone who has not yet been proven guilty of a crime. This is a complete violation of rights. The drug and alcohol tests are usually a part of a sentence once you are found guilty. This is saying he is guilty and has to prove his innocence, which is a complete violation of his rights as a citizen of the United States.

    The careless driving is bogus because he hit ice. The officer said there was no ice but I drove the road the night of Jan 15 to see and I saw a small area that could be black ice late at night. It was a wet area during the day. If you were to hit it just right it could send you out of control. I took a picture for proof. Also, the snow was way over the shoulder and Kyle tends to drive close to the shoulder to be safe on the narrow roads. He might have hit an icy patch there and was sent into the ditch. His car was not damaged at all. The police report even stated that there were no new damages to his car.

    The open container is bogus because Kyle came home and saw no alcohol container in his car. It was full of root beer bottles, soda cans and those raspberry lemonade cans as well as Monster drinks. No alcoholic containers. The officer also had no proof, no pictures and no cans etc.

     Kyle asked for an attorney several times before and after his arrest. He consented to the blood test because he was coerced, the officer threatened him and he was scared. If he had a lawyer, he would have known what to do. He would have taken his chances on the breath test again because he would not have used his inhaler for a while.

     He was never given a phone call and was denied his inhaler, which is a life or death thing. He could die if he can’t breathe and the jail had no right to deny him the medicine he needs to sustain his breath and survive. The outcome could have ended differently. I could have gone to the jail to pick him up only to find he died in the cell. They would not have even known until I came to pick him up because they never checked on him, the only way they even knew he couldn’t breathe was when he begged for his inhaler.

     His rights were again violated in court when the judge passed sentence on him by ordering the drug and alcohol testing before he is found guilty. He now has to stay around town, has to be a prisoner to the phone and call in which is a violation of his constitutional rights. All he did wrong was use his inhaler and hit an icy patch sending him into a ditch.

     This entire experience has traumatized Kyle. Being arrested, taking the sobriety tests, not being able to make a call, being denied life sustaining medicine and being humiliated by taking his clothes off for a drug and alcohol urine test before he has even been proven guilty.

     His rights were also violated because he can’t leave town when he wants to and is a prisoner to the drug test. He also has to take his pants off and pee in front of someone for the drug test. That is a violation of his right to privacy when he has done nothing wrong. They also expect him to pay for the drug tests, which is another violation of his constitutional rights. Montezuma County completely stripped Kyle of his rights.

February 23, 2016

Mom’s statement

     Kyle went to court to set a date for a trial but when he went before the judge she said that he had not called in to the pre-trial testing twice, once on Feb 13 and the other time on Feb 16. He told her that his phone has been acting up and his lawyer attested to that fact because she had trouble getting in touch with him but the judge said send him to jail and said the bond is 1500.00. They took Kyle to jail, I bailed him out. Then he told me that he only missed calling on one time and it was a Tuesday so he didn’t worry about it because they never have him come in on Tuesday and the other time, the 16th he called in and went in and tested but the testing facility failed to let the courts know. He has not paid the court for these “services” either so we wonder if that might be why he was sent to jail.

     The main rub in all of this is that he did nothing wrong, he has not been found guilty of anything so should not be going to the drug tests. He is being treated like a criminal before he has been found guilty. The court is for sure not allowing him his right of being innocent before proven guilty. They already convicted and sentenced him before he even went to trial.

     

     Kyle‘s court date is not until April 18. Until then he will have to succumb to the pre-trial punishment and is actually be treated like a prisoner in his own town or the judge will order his arrest.

     Kyle’s insurance pays for the pre-trial testing however when the compliance center loses or spills his specimen they not only charge the insurance company but Kyle had to pay out of pocket to be tested again or go to jail for non-compliance.

     One more note about the judge is that she belittled Kyle and called him a “threat to society because he was drinking and driving carelessly” but then added allegedly after that statement, all before he has been found guilty of anything. He had not even entered a plea at that time. She publicly humiliated him.

July 2016

     We have learned a lot about the justice system in Montezuma County since this entire incident. First of all we learned that you are guilty and treated like a criminal before you even go to trial in Montezuma County. You do not have the right to a lawyer in Montezuma County even though you ask several times for one.

     We also learned if you ever go off the road, you do not have to get into a police car. You also do not have to say anything to the officer, all you are required by law to do is give him your license and registration and let him or her know respectfully that you do not wish to speak. Now in Montezuma County they might still take you in because the constitution does not apply here.

     This entire nightmare went on until May 17, 2016. Kyle was offered a deal by the DA in early March, he was told if he would take a Victim Panel class and a Defensive Driving class they would drop all charges. So he paid for and took the classes because his lawyer said it would be cheaper than going to trial which he would most likely win but it would be expensive. He took the classes in early March but had to remain on the Pre-trail sentencing until May 17, 2016 when the DA dismissed the DUI and Careless driving charges. The judge fought it all so they put the open container on diversion. Mind you the officer had no evidence and did not take pictures so there is no proof of any open container.

     The officer did not suspect Kyle of drinking until after he used his inhaler, in other states the officer is supposed to wait 20 minutes after someone has eaten or placed anything in their mouth to issue a breath test. The officer did not wait. Had he waited Kyle might not have blown high. Actually he would have most likely blown zero in 20 minutes. Once he took Kyle to the jail and he blew zero the officer should have let him go. The officer omitted that portion of the night from his police report which would have possibly prevented the pre-trial sentencing.

    The way the blood was handled was improper as well. The officer put it in his warm car, drove around with it for 4 hours and then dropped it in a night drop at the post office. This would have all been used as a defense however since the DA dropped the charges, it was not an issue. We believe the DA knew he had nothing to go on so that is why he dropped the charges. However he should have taken Kyle off drug test sentencing when he took the classes.

     After reading the police report we found that the officer stated he noticed a “strange alcohol smell” after getting back into the vehicle. We also discovered that the officer was called by a local man and woman who had stopped to check on Kyle as they drove by.  

        

     The man who called the cops said that Kyle acted nervous (surprise, he just slid off the road) and the man said that  Kyle would not let him call a tow truck, after Kyle had told the man his mom had already called for one. (That is in the police report) We still wonder what motive those people had in calling the police. Clearly the man loves to call tow trucks and was mad because Kyle didn’t want two of them at the scene.  None of this would have happened if Kyle had allowed the man to call him a second tow truck. The man did clearly know that Kyle had one coming, but if only he had let the man call one too the man most likely would have felt satisfied and not called the police. I blame that man for a lot of this because had he used his brain to think the cop would not have entered the scene. 

        To sum it all up, we had planned to sue the Montezuma County jail for violating Kyle’s right to life by denying him his life sustaining medicine. However we have learned since Kyle did not die, there are no damages. But the lawyers did say that there are many constitutional violations and we do have a case regarding that portion. Finding a lawyer to handle that in our area is rough though. Many of the lawyers I have called in the area already do work for the county so can’t represent Kyle. Lawyers in Denver I’ve called have been rude and do not want to take the case. Our hope is to eventually sue the county for violating Kyle’s rights. We would like all costs returned to us, even legal fees. We also believe that the insurance company should be reimbursed for paying the drug testing company.

     The end result could have been so different. Had Kyle not known how to relax I would have went to pick him up to find the jail had killed him by not allowing him to use his inhaler, by violating his right to life. They should not get away with this. Why should they be allowed to deny a person his right to life and nothing happens because the person fails to die on them?

     Montezuma County Jail and Court are getting away with clear constitutional violations. This needs to stop.

     We will add the fact that the officer did not allow Kyle an attorney to the civil suit. Had he been allowed to call an attorney he would not have taken the blood test and he would have known possibly how to avoid the pre-trial sentencing.

     I have spoken to many law enforcement personal and lawyers who are appalled at the pre-trial drug testing and state it is a clear constitutional violation. Actually, several portions of the constitution are violated by sentencing people to testing after they have paid bail to get out of jail. We hope to find enough people who have had their rights violated and begin a class action suit against the county.

     Clearly Kyle’s case consists of violations of his rights as a US citizen and hopefully by writing this story and exposing the Montezuma County Jail and Montezuma County Court for their multiple violations something can be done before someone dies in their jail and to stop free citizens from being made prisoners of the system before even going to trial.

     I hope that someone out there reading this knows a lawyer who is willing to take this case on and show Montezuma County and the County jail they can’t violate the rights of US Citizens like this. We do live in America but I think Montezuma County has forgotten that.

     I ask all who read this to share it on your Facebook wall, share it with anyone you can. I hope this spreads like wildfire. My son could have died in that jail cell while being held for using his inhaler. A person having an asthma attack can die within 3 minutes of the attack.  If he had died I wouldn't have even had to write this, it should not take the jail killing someone for action to be taken against the county in all of this. Yes I am angry, any mother would be angry but thankfully I am not grieving over the loss of my son which is what could happen to another mom whose son the jail denies medicine to. This has to stop! Montezuma County has to stop stomping on the US Constitution. 

May 11, 2017

Current notes: We were not able to sue the county, no one would take the case because Kyle did not die and even though we were out money there was not enough money to gain by suing. So, the county continues to get away with violating peoples rights and arresting them for having asthma.