Brett D. Barkey
District Attorney
14th Judicial District
Serving Grand, Routt and Moffat Counties

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July 9, 2014
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Guest Column: D.A. explains reason for dropping felony counts in 4th of July Ackerman case

One year ago, a collision occurred along U.S. Highway 34 between Granby and Grand Lake resulting in one man’s death and serious injuries to his wife and two of their children. Lucas Ackerman hit the family as they were attempting to cross the road on foot. He was initially charged with a single count of Vehicular Homicide, three counts of Vehicular Assault ­— all felonies — as well as one count of DUI (a traffic misdemeanor), and two counts of Child Abuse for having his own uninjured children in his vehicle while driving under the influence (both misdemeanors).

I write this letter to give interested citizens the facts of the case, and a detailed explanation of my decision.

The Facts:

On July 4, 2013, around 10:30 p.m., Lucas Ackerman was driving north on U.S. Highway 34 towards Grand Lake. Mr. Ackerman had his wife and two children with him in his truck. At about this time, the Westleys were on the east side of the road near mile post 12, attempting to cross U.S. Highway 34 to get to their vehicle parked on the west side of the road. Mr. Ackerman collided with the Westley family, resulting in the death of Gregory Westley and serious injuries to Mr. Westley’s wife and two of their children. A third Westley child was also injured, but fortunately, these injuries were not as serious. Testing done some three and a half hours after the collision revealed that Mr. Ackerman had a blood alcohol level of .176 g/100ml of blood. Mr. Ackerman was arrested and charged with one count of vehicular homicide (for the death of Mr. Westley), three counts of Vehicular Assault (for the serious bodily injuries to Mrs. Westley and two of their children) — all felonies — as well as driving under the influence of alcohol, and two counts of misdemeanor child abuse (for Mr. Ackerman’s children in his own truck).

After the collision, Mr. Ackerman immediately stopped and waited on-scene for the police and emergency medical personnel. According to multiple witnesses (including three independent eyewitnesses in another car waiting to turn onto Highway 34, and an off-duty EMS captain who was travelling southbound on Highway 34 from Grand Lake), the Westley family appeared to have stepped out into the lane of travel. This was confirmed by physical evidence at the scene indicating the point of impact of the collision was in the travel lane. At the time of the crash, it was dark (there was only a single, dim light nearby), and the road was dry (although it later rained). Eyewitnesses to the crash told investigators that the Westleys had been wearing dark-colored clothing.

The Colorado State Patrol accident reconstruction expert concluded that Mr. Ackerman’s headlights were on at the time of the crash and that Mr. Ackerman was driving about 40 miles per hour in a 50 mph zone. The Colorado State Patrol expert determined that when the Westleys first stepped into the road, Mr. Ackerman was 58.64 feet away. Based upon average time it takes people to perceive and hit the brakes, and the time required to bring a vehicle to a stop given coefficient of friction for the roadway, any driver would have needed at least 172 feet to have avoided the collision (94 feet to perceive and react plus the 78 feet required to stop the vehicle with maximum braking). These calculations led the Colorado State Patrol expert to conclude that (1) Mr. Ackerman’s driving behavior was not careless (per the statutory definition of “Careless Driving”) even though he was intoxicated and (2) no driver ­— not you nor I — would have been able to react and stop quickly enough to avoid the collision.

The Law:

Vehicular Homicide is committed when a person “drives a motor vehicle under the influence, and such conduct is the proximate cause of the death of another.” C.R.S. 18-1-106(1)(b). Vehicular assault is identical except that the result is serious bodily injury rather than death. Despite the “proximate cause” language in the statute, the Colorado Supreme Court has held that, “The statute does not require evidence that the intoxication affected the driver’s operation in a manner that results in a collision.” People v. Garner, 781 P.2d 87, 89 (Colo. 1989). Thus, if a man were to be driving under the influence, and a sober person were to run through a stop sign, crash into the intoxicated man’s vehicle, then die in the collision, the first man would be liable for vehicular homicide even though he did not cause the collision.

A Prosecutor’s Duty:

Our criminal justice system is essentially an adversarial one, but because prosecutors have the power and authority of the state behind them, they must not simply advocate for conviction, they must do what is just given the unique circumstances of each case. In making these decisions, prosecutors do not represent the police, or any particular victim, but rather the community as a whole.

As part of their duties, if prosecutors are aware of information that is beneficial to the defendant’s case, they must disclose it to the defendant. For instance, if prosecutors believe that a suspect is innocent, they must dismiss the case. If prosecutors are convinced that they are unable to prove the case beyond a reasonable doubt, they must dismiss the case. As prosecutors make charging and plea bargaining decisions, they do so in the interests of justice. Thus, prosecutors are empowered to reduce charges, make sentencing concessions, or even dismiss cases outright if that would further the interests of justice.

People v. Ackerman:

In the case of the People v. Ackerman, the evidence indicates that there was no causal connection between Mr. Ackerman’s intoxication and the tragic results because no person in Mr. Ackerman’s shoes ­— not any one of us — could have avoided hitting the Westley family. Certainly, in the overwhelming majority of cases we see, the intoxication causes poor driving, which causes a collision, which causes death or injury. But that is not the case here. As horrible as the results were, the evidence shows that Mr. Ackerman’s drunkenness did not cause or contribute to the collision.

Earlier in this case, we offered deferred sentences on the felonies with an outright conviction and conviction for DUI. Mr. Ackerman accepted that offer. A deferred sentence is a contract between a defendant and the District Attorney’s Office in which the defendant pleads guilty to the charges to be deferred, and is then put on probation. Should the defendant successfully complete probation, at the end of the period of the deferred sentence, he may withdraw his guilty plea to the deferred charges and those charges would be dismissed. Should a defendant fail to successfully complete the probation by, for example, failing to attend treatment, failing to do useful public service or committing a new offense, the convictions for the deferred charges would enter, and the defendant would go before the court for sentencing on those charges. Thus, under the original plea agreement, Mr. Ackerman would have been convicted of DUI and sentenced immediately for that crime, but would have had the opportunity to avoid convictions for the felony vehicular homicide and vehicular assault counts if he successfully completed probation. This agreement was intended to achieve a balance between the general policy announced by the legislature in defining Vehicular Homicide and Assault, as interpreted by the Colorado courts, with the individual circumstances of this case.

Unfortunately, the Grand County District Court rejected the plea agreement. We asked the Colorado Supreme Court to overturn the District Court’s decision, but without offering an opinion on our appeal they declined to hear the case. That left us with the choice of either going to trial on the felony counts or proceeding with just the misdemeanors. Since convictions for misdemeanors only had been the ultimate goal under the prior agreement (assuming Mr. Ackerman had successfully completed his deferred sentence contract), I chose to dismiss the felony counts and proceed on the misdemeanors only.

Mr. Ackerman has indicated he will plead guilty on July 10, 2014 to the DUI and will face immediate sentencing for DUI in the Grand County District Court. We understand that he will ask to be tried on two counts of child abuse for driving under the influence with his own children in his truck. That trial will be scheduled for a later date.

Conclusion:

I have written about my decision in People v. Ackerman so that members of our community may better understand my choices. These are the types of decisions prosecutors make every day across this state, carefully applying the law, thoroughly analyzing the evidence, and consulting closely with victims and investigators. They make these decisions based on their best judgment as to what is fair and just, not what is popular or convenient. That is what I have done here.

This community entrusted me with the responsibility of serving as its district attorney. My foremost duty is to do what I think is right, regardless of controversy. Based on my 28 years of experience in this kind of work, I have concluded that what is just in this case is to proceed on the DUI and misdemeanor child abuse charges and to dismiss the felony counts.


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The Sky-Hi News Updated Jul 14, 2014 01:44PM Published Jul 9, 2014 08:33PM Copyright 2014 The Sky-Hi News. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.