An Arapahoe County judge had no authority to penalize the prosecution when the state lab did not provide blood test results in a drunk driving case as soon as he wanted it to, the Colorado Supreme Court ruled on Monday.

The 18th Judicial District Attorney’s Office petitioned the justices directly after County Court Judge J. Jay Williford barred prosecutors from using evidence of a defendant’s blood alcohol content at trial. Williford gave the government a deadline to produce the results and, when it did not comply, he chose to exclude the evidence as a sanction on the prosecution.

The Supreme Court agreed with the district attorney’s office that the rule requiring prosecutors to turn over evidence “as soon as practicable” did not give Williford the ability to enforce his own deadline when the Colorado Bureau of Investigation had not yet completed its testing and no trial was even scheduled.

The district attorney’s office claimed to the Supreme Court that Williford, a former prosecutor, was the only judge in Colorado who regularly ordered the government to provide blood testing results in DUI cases by specific deadlines. That was problematic, the office alleged, because Williford’s deadlines were arbitrary and caused ripple effects statewide.

“A single judge’s deadlines might speed up blood test results in that judge’s courtroom, but – by interrupting CBI’s workflow – the deadlines slow down the results in other courtrooms that handle DUIs,” wrote Deputy District Attorney L. Andrew Cooper.

In the underlying case, Aurora police arrested Ashleigh Walthour on Nov. 18, 2022. Walthour had crashed her car and officers suspected her of driving while intoxicated. They drew her blood for testing and sent the sample to the CBI five days later.

Walthour first appeared before Williford in January, then again a month later. Walthour had not yet obtained a lawyer, nor entered a plea. In addition, the prosecution was still awaiting the blood test results.

“We should have them hopefully within the next week or two,” prosecutor Ben Bongutu told Williford on Feb. 6.

The judge ordered the prosecution to provide Walthour with the results of the blood test by Feb. 28. Bongutu did not object to the deadline.

The following court date, March 7, Walthour told Williford it had been more than 90 days since her arrest and “I’ve been here three times,” still without the results of her blood test.

“I do not believe that these blood results are something that are within the (prosecution’s) control, given that we do not control or supervise CBI,” Bongutu responded.

Williford then launched into a lengthy critique of the increased processing time at the CBI. He said the delays are getting “worse and worse” and blamed the state laboratory for holding up “a bunch of other cases, as well.”

He cited the language in the rules of criminal procedure requiring prosecutors to turn over evidence no later than 35 days before trial or “as soon as practicable.“

“At this point, there has been a failure to be able to comply with the court order,” Willford said, barring the prosecution from using the blood test results against Walthour as a consequence. Bongutu did not object to the ruling.

The next day, the CBI provided the results, showing Walthour’s blood alcohol content was twice the legal limit on the night of her arrest.

The district attorney’s office appealed directly to the Supreme Court, claiming Williford set arbitrary deadlines in one-third of his DUI cases that involved blood draws – seemingly out of displeasure with the CBI’s testing delays.

“The judge’s orders, from multiple perspectives, are wholly unpredictable,” Cooper wrote. He also submitted statements illustrating most toxicology reports are completed within 111 days, but prioritizing individual cases results in others being “bumped.”

The Colorado Attorney General’s Office, representing Williford, argued the prosecution never raised its concerns about the judge’s pattern of setting deadlines directly to him. Walthour’s lawyer similarly slammed the district attorney’s office for failing to be more proactive in the trial court.

“The prosecution filed nothing on February 28th, the date upon which test results were due, to alert the court and Ms. Walthour the test results were unavailable,” wrote public defender Jon W. Grevillius. “The prosecution filed nothing with the court indicating it was having difficulty complying with the court order or outlining steps it was taking to ensure it was communicating with CBI to ensure prompt transmission of the results.”

However, Justice Melissa Hart, in the Supreme Court’s Oct. 23 opinion, explained that Williford could not have ordered the disclosure of Walthour’s test results by Feb. 28 because the information did not exist by Feb. 28.

“There was no evidence under these circumstances to support the court’s finding that it would have been ‘practicable’ for the prosecution to disclose Walthour’s blood test results,” she wrote.

Hart added that Williford could have set the case for trial, which would trigger the prosecution’s obligation to provide evidence 35 days prior. He could have also found “good cause” existed to impose a deadline. But Williford did neither.

“The Colorado Bureau of Investigation and the state legislature have taken important steps to ensure the completeness and accuracy of DUI blood testing,” said 18th Judicial District Attorney John Kellner. “Today’s Supreme Court opinion clarifies that judges must allow that testing process to unfold.”

The case is People v. Walthour.