Nov 6, 2013 5:53 PM by Andy Koen
Tenth Judicial District Attorney Jeff Chostner tells News 5 Investigates that he does not have enough evidence to prosecute County Commissioner Liane "Buffie" McFadyen for driving under the influence. Chostner said that Pueblo County Sheriff Kirk Taylor personally sent the deputy's investigative report and dashboard camera DVD of incident to the prosecutor's office just last week.
"Based upon the way the stop was conducted and the case law surrounding drunk drive, the DA's office does not have any prosecutable charges," Chostner said.
However, Chostner indicated that the deputies did not go far enough with their investigation.
"All of the information that I need for a successful prosecution, I don't have," Chostner said.
Generally speaking, Chostner said that blood alcohol tests would be given to every person in the vehicle. He also expected some form of physical sobriety test to have been performed. Only Ron Greenwell, the county Democratic Party Chariman, was given a blood alcohol test.
Chostner also said the legal test for a charge of driving under the influence is "whether the person has control of the vehicle or not."
He said the court would look at the "totality of the circumstances" including whether the car was running, if the keys were in the ignition, and whether the lights, radio or other accessories were turned on.
"None of that evidence was ascertained nor was it inquired of," Chostner said.
A sheriff's office spokesperson replied to a News 5 Investigates email that the keys were not in the ignition.
McFadyen personally released the video and incident report to News 5 and other "News Organizations" on Tuesday night. She also included a letter indicating her desire to be transparent about the process and counter "certain untrue allegations."