Fossum denies drug use, DUI

Fossum denies drug use, DUI

May 24, 2001

by Aspen C. Emmett
Journal Staff Writer

On trial for alleged drug use and driving under the influence, former Cortez city attorney Cliff Fossum took the stand in his own defense Wednesday morning.

Charges stem from a one-car crash on Mancos Hill on March 6, 2000. Fossum was arrested on suspicion of DWAI (driving while ability impaired) after failing a roadside sobriety test. A breath test following the accident read .050 grams of alcohol and a urinalysis test detected cocaine as well as common prescription drugs.

Yesterday, Fossum demonstrated to the jury that, because of arthritic knees, he was unable to perform roadside sobriety maneuvers that night — a serious oversight in the officers’ drug and alcohol evaluations, the defense charged.

Defense attorney George Buck asked Fossum in the courtroom to stand on one foot and count to 30 while members of the jury intently leaned forward and even stood during the futile attempt. Fossum’s knees trembled and his balance swayed. He only made it to seven on his right foot and three on his left.

"I can’t do this," Fossum told the jury as he wobbled on one leg. "People my age and other people should try this."

Fossum further testified that he had not knowingly ingested cocaine before the crash, although he did admit being at a party in Phoenix where it was being used by other persons two nights before. He also stated he had used cocaine once four years earlier but had had an adverse reaction to the substance that caused him to stay clear of it in the future.

Fossum attributed the crash to poor road conditions and a blown-out tire.

Defense witness Gary Combrink, who arrived on the crash scene shortly after the accident, testified that the roads were covered in heavy slush that day. Combrink added that he did not detect any signs of intoxication in Fossum while they waited for more than 30 minutes for the arrival of the state trooper. Combrink was not questioned by the trooper because he did not see the actual crash.

However, Colorado State Trooper Steve Nowlin testified that when he encountered Fossum he could detect the odor of alcohol on his breath. Nowlin said that Fossum’s inability to perform the roadside tests did not coincide with the defendant’s claim to having consumed just two margaritas with dinner.

Nowlin said Fossum initially refused a blood or breath test and only gave in after a long time, an allegation Fossum said was untrue. Following the results of the breath test, Nowlin decided to call in another trooper, Steve Keller, who is a drug-recognition expert.

Keller went through similar maneuvers that elicited similar results and decided to ask Fossum to submit to a urine test for drug screening.

"My opinion was he was under the influence of CNS (central nervous system) depressants and CNS stimulants and not able to safely operate a motor vehicle," Keller told the jury.

Although Keller noted in his narrative report that Fossum suffered from arthritis, it was not mentioned in the evaluation form.

Fossum claims that he requested a blood test rather than urine for better accuracy but said Keller denied the request because of costs. Keller told the jury he did not recall such a conversation.

Fossum was issued summons for DWAI, careless driving and driving under suspension and then released.

Because Fossum had at one point practiced law in the same office as the then-district attorney, Mike Green, a special prosecutor was brought in from the Sixth Judicial District to charge the case. Original charges were dropped and new ones were filed.

Formal charges now include unlawful use of cocaine, a Class 5 felony, driving under the influence of alcohol and/or drugs, careless driving, driving revocation and a lesser, non-included offense of failure to notify the department of motor vehicles of change of address. The last charge was entered by the defense following testimony.

The jury went into deliberations late Wednesday afternoon. As of press time they had not returned with a verdict.