The 7th Judicial District Attorney’s Office is asking for the district attorney in Durango to be appointed to handle the DUI case pending against Ouray County Sheriff Lance FitzGerald.
FitzGerald was arrested by one of his own deputies in November, accused of driving home from a bar while intoxicated. He is due in court Jan. 2, 2020.
In a Friday motion, District Attorney Dan Hotsenpiller requested Christian Champagne from the 6th Judicial District be appointed in the case.
He declined in a written statement to specify why he wants a special prosecutor, saying such commentary is not appropriate.
“As a general matter, a DA has full authority to prosecute law enforcement officers acting within the district attorney’s jurisdiction and doing so does not create a conflict of interest,” Hotsenpiller’s statement reads.
“However, in any case, one involving law enforcement or lay defendants, circumstances may exist which make it advisable for a district attorney to seek a special prosecutor. Such circumstances can include knowledge of information or the existence of relationships that might affect a prosecutor’s ‘duty of fairness and neutrality.’”
The motion requests a judge to disqualify the 7th Judicial District Attorney’s Office and notes FitzGerald’s status as an elected sheriff within the 7th Judicial District.
“Circumstances exist which (Hotsenpiller) has determined warrant the appointment of a special prosecutor in this case,” the motion reads.
According to a Ouray County Sheriff’s Office report, on Nov. 27, FitzGerald alleged his girlfriend had struck him during an argument, cutting his nose and bending his glasses as they drove home. Once he reached his residence, he called in a domestic violence complaint.
Deputy Monty English responded. In his report, he noted signs of intoxication and said FitzGerald admitted to drinking.
The woman, Jamie Johnson, reportedly told deputies he had been driving. She also said FitzGerald had been flailing his arms around during the argument and denied striking him.
The deputy arrested Johnson on suspicion of domestic violence. As he traveled away from the scene, he contacted Undersheriff Ted Wolfe about returning to administer a sobriety test to the sheriff.
Wolfe approved the test, but was unable to collect Johnson himself because he too had been drinking, the report says. He directed English to hand Johnson over to the Ridgway Marshal’s office for transport to jail in Montrose and return to FitzGerald’s.
At that time, FitzGerald reportedly admitted to having more to drink once he got back home. English said he initially declined to take a breath or blood test. Once he did, he allegedly blew 0.133, well above the legal limit.
There is a gap between the time Johnson’s statements placed FitzGerald behind the wheel and the administration of the test; the report does not say the degree to which his at-home drinking may have factored into the results.
“The District Attorney’s Office does not make the decision to see a special prosecutor lightly and the district attorney consulted others prior to making this decision,” Hotsenpiller said in his Friday announcement.
“The most important consideration must be adherence to the highest standards of ethical conduct and adopting a course of action that assures the community that public officials will be prosecuted fully consistent with the duty of fairness and neutrality practiced by Colorado prosecutors.”