UPDATE: Former DUI Officer Reacts To An 11 Call for Action Investigation

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11 News talked to a former DUI officer on Thursday night. He says he’s concerned that the Pueblo Sheriff's Deputy wasn't trained correctly.

There are key things you look for and ask right away when an officer smells alcohol that he says the deputy never did.

The number one question is: how did Pueblo County Commissioner Buffie McFadyen's SUV get to the dirt parking lot on Swallows Road and Highway 50 in Pueblo West?

As we’ve been reporting, Commissioner McFadyen and the head of the Pueblo Democratic Party, Ron Greenwell, were in a parked SUV. McFayden says she had one glass of wine, but the deputy says she's intoxicated. The commissioner says the two had been dropped off by a friend. But the deputy never asks how the two got there.

Deputy: “The vehicles got here somehow, but I’m not worried about that.”

The DUI expert tells 11 News how McFadyen got there is crucial.

The number two question: were the keys in the ignition?

We don't know because as soon as the deputy pulls up behind her, Commissioner McFadyen gets out of her vehicle.

Deputy: "Get back in your car, get back in your car."

In Colorado, DUI law states you have to be in control of the car. Where the keys were is not part of the Sheriff's report and it's not mentioned in the dash cam video. The DUI expert says the deputy should have questioned Commissioner McFadyen about her keys.

11 News has been trying to get answers to some of these questions for the past two days. We waited at Commissioner McFadyen’s office for over two hours on Wednesday. On Thursday she wasn’t in her office so we stopped by her house, but we were told to leave.

The Pueblo County Sheriff's Office is standing by the deputy's decision. The Pueblo County District Attorney says he may refer this case to another jurisdiction.

We'll let you know if there are any new developments in this case.

Story from November 7th:

We're taking a closer look at DUI laws in Colorado after a Sheriff's deputy found Pueblo County Commissioner Buffie McFadyen and Pueblo Democratic Party Chair Ron Greenwell intoxicated in a parked SUV.

McFadyen says she had one glass of wine. Greenwell blew over the legal limit.

Thursday, we spoke with Norm Thom, an defense attorney and legal expert on Colorado DUI law. He says the Colorado statute pertaining to DUI is pretty cut and dry.

It states that a person with a blood alcohol content above .08, that is in physical control of a vehicle could be prosecuted for driving under the influence.

But that doesn't mean the person needs to be driving. A jury or judge could find somebody guilty of DUI if the keys were in the ignition, if the car was on, or if the person is sleeping.

Thom says the law can be a legal gray area.

"In Colorado, driving is defined as actual physical control of the vehicle and there are a variety of circumstances that either a judge or jury can weigh to determine if the person was in actual physical control of the vehicle," Thom told 11 News Thursday.

Story from November 6th:

There is a new development after our 11 Call for Action investigation aired. Prosecutors might be taking action now.

Meanwhile, the former Pueblo County sheriff tells us he believes this shouldn’t have happened the way it did.

As we've been showing you for the past two days, a Pueblo County deputy’s dash cam video shows Pueblo County Commissioner Buffie McFadyen and her passenger, Pueblo Democratic Party Chair Ron Greenwell in her parked SUV.

The deputy believed both were drunk.

Days after our lawyers demanded that the Sheriff's Office hand over the incident report, McFadyen's staff gave it to us.

The Pueblo County head prosecutor, Jeff Chostner, told us he’s frustrated on how this case was handled, and he says he may turn the whole matter over to another jurisdiction to take a look.

In the deputy’s dash cam video you can hear the deputy call in to report what’s happening. In our raw dash cam video attached to this story, this begins around the four minute mark.

Deputy: “I’ve got an intoxicated Buffie McFadyen out here. Um, I don't have her DUI maybe just because she’s sitting in the driver’s seat but the vehicle is off so we’re good there, but I don’t know. She’s being kind of mouthy.”

The dash cam video is from January 25th, the night a Pueblo deputy found McFadyen behind the wheel of her parked SUV. She tells him she's had one glass of wine. The deputy says she's intoxicated. (starts at 5:49 mark in video)

Deputy: "I think you might need to call for a ride. I think you might have had a little too much to drink."

McFadyen: "I'll have him drive me."

Deputy: "Have you been drinking sir?"

Ron Greenwell: "No."

Deputy: "Can I talk to you outside really quick so I can make sure I don't smell any alcohol on you?"

Greenwell, who was in the passenger seat of McFayden's SUV failed a sobriety test. Then, they're allowed to call for a ride home.

After numerous requests on Wednesday to interview the Pueblo County Sheriff about why the deputy didn't test Commissioner McFadyen, we were told to find their response to our investigation on their Facebook page. So 11 News Reporter Kristin Haubrich stopped by the sheriff's office looking for more answers and talked to his secretary.

Kristin Haubrich: "I need to speak with Sheriff Taylor."

Secretary: "He is not in the office."

Kristin Haubrich: "He's an elected official, his calendar is public, so where is he?”

Minutes later, the undersheriff, J.R. Hall, came out to talk.

Undersheriff Hall: “We made a comment about that particular call on our website."

Kristin Haubrich: "I don't think it's acceptable to respond on Facebook, when I’m asking in person for answers."

Undersheriff Hall: “Oh I gotcha."

Kristin Haubrich: "Why wasn't she given a sobriety test?"

Undersheriff Hall: “It was a suspicious vehicle in the parking lot and the deputy's discretion."

We went to Commissioner McFadyen's office to see if she wanted to talk on camera. The secretary told us she was in the office but she was in a meeting. We waited for two and a half hours, but she never came out to talk.

We tried to reach the man who was in McFayden's SUV that night. He wasn't at the Pueblo County Democrats headquarters and he wasn’t at home either.

We decided to ask the former Pueblo County sheriff what he would have done. He says this situation would have ended with DUI ticket, and not a ride home.

"Is this a new policy of the sheriff's office? That's the question for me. Is this same application going to be for everyone because what's good in this case for Commissioner McFadyen is obviously good for the general public,” Dan Corsentino said.

The Pueblo County district attorney also says he hopes the sheriff will review the conduct of his deputy that night.

You can count on 11 News to keep you up to date on any new developments in our investigation.


Story from November 5th:

In an 11 News Call For Action Investigation we have video of a local county commissioner behind the wheel of a parked car. She tells 11 News she had one glass of wine. A sheriff's deputy thought she was drunk, but instead of sobriety test, she got a ride home.

On the night of January 25, 2013, Pueblo County Commissioner Buffie McFadyen was in her SUV with Pueblo County Democratic Party Chair Ron Greenwell. A Pueblo County Sheriff's deputy says he found them both intoxicated, although she's telling us she had just one glass of wine.

11 News has been working for over a week to get the report from the Pueblo County Sheriff's Office, but they wouldn't give them to us.

On Tuesday night, we were surprised by a phone call from Commissioner McFadyen’s office. Apparently, someone told her about our request. She decided to give us the papers herself, along with her explanation of what happened and even video from the deputy’s dashboard camera.

On the video, you can see the deputy approach the parked SUV.

Deputy: "Evening, what's going on tonight?"

McFadyen: "Just came back from the hot springs."

Deputy: "Okay, this is a very weird spot just to sit."

McFadyen: "Oh, it's because I live here and he lives in town."

The SUV was parked in a dirt lot in Pueblo County. Behind the wheel was Pueblo County Commissioner Buffie McFadyen.

You can hear the deputy talking to McFadyen while she's sitting in the SUV.

Deputy: "How much have you had to drink tonight?"

McFadyen: "One glass of wine."

Deputy: "How long ago?"

McFadyen: "About an hour and a half ago."

Fast forward the video and now, the deputy is back in his car, calling in to report what's happening.

Deputy: "I've got an intoxicated Buffie McFadyen out here. Um, I don't have her DUI, maybe just because she's sitting in the driver's seat. But the vehicle's off so we're good there...I don't know. She's being kind of mouthy."

The deputy returns to the commissioner's car.

Deputy: "I think you might need to call for a ride. I think you might have had a little too much to drink."

McFadyen: "I'll have him drive me."

Deputy: "Have you been drinking sir?"

Ron Greenwell: "No."

Deputy: "Can I talk to you outside really quick so I can make sure I don't smell any alcohol on you?"

Then on the tape, you can hear Ron Greenwell take a sobriety test, and fail it.

Deputy: "The legal limit is a .08 and you're .140."

It turns out he had been drinking. The portable test showed him at nearly twice the legal limit.

Deputy: "You've had too much to drink as well."

Greenwell: "Okay."

Eventually, McFadyen calls her husband, who shows up and drives the two home.

In the letter McFadyen gave us Tuesday night, along with that tape, the commissioner tells us the two had been out with friends that night. They had been dropped off at their cars. She says they were sitting together just finishing a conversation.

Neither of them got a ticket.

We talked with a source in local law enforcement. He tells us he believes the county commissioner received preferential treatment, and he feels McFadyen should have been given a sobriety test.

We plan to ask the Pueblo County Sheriff Kirk Taylor if he thinks his deputy did the right thing, and we'll be sure to let you know what he tells us.

If you want to see the entire dash cam video, we've posted it on this story.

Also attached to this story is a letter County Commissioner Buffie McFadyen released to KKTV 11 News. The incident report is attached as well.