A story initially broken by Kristin Haubrich of KKTV (Pueblo/Colorado Springs) on November 5, 2013, continues to develop and raises concerns about the police handling of a January incident involving Pueblo County Commisioner Liane “Buffie” McFayden and Pueblo County Democratic Chair Ron Greenwell.
The incident happened on the evening of January 25, 2013, when a Pueblo County Sheriff’s Deputy, responding to a call about a “suspicious vehicle,” discovered McFadyen and Greenwell inside a parked car at a commuter lot along Highway 50, near Swallows Road.
After speaking to McFayden, who was allegedly behind the wheel, the deputy contacted his dispatch and reported that, in his opinion, McFayden was intoxicated. In a recorded conversation, the deputy stated, “ 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.”
For purposes of the Colorado DUI statute, C.R.S. section 42-4-1301, a person is considered to be driving a car if they are “in actual physical control” of the vehicle,” as determined by “a totality of the circumstances.” The vehicle does not need to be in motion or even in the drive gear. DUI convictions have been upheld by the Colorado courts where the keys were merely in the ignition switch and where the occupant was sleeping in the front seat. See People v. Swain, 959 P.2d 824 (Colo. 1999). In fact, the Colorado Court of Appeals has ruled that a defendant could be convicted of drunk driving even where the vehicle was out of fuel and had a dead battery. See People v. VanMatre, 190 P.3d 770 (Colo. App. 2008)
According to the story, upon returning to the car, instead of requesting a sobriety test, the deputy informed Ms. McFadyen that he felt she had had too much to drink and should call for a ride. She then suggested that her passenger, Ron Greenwell could drive her instead. As a precaution, the deputy gave Mr. Greenwell a preliminary breath test, and Greenwell blew a .140, well over the legal limit of .08.
At this point, according to KKTV, McFayden called her husband, who showed up to drive the two politicians home.
Subsequent to the initial report, the story was picked up by Fox 21 News. The Pueblo County Sheriff’s Office defended the actions of the deputy on a Facebook page, stating that the officer’s decision in this case was within the guidelines of his discretion and should not be second-guessed.
However, on November 6, KKTV reported that the head prosecutor for Pueblo County, Jeff Chostner, expressed frustration over the manner in which the case was handled, and was considering turning the whole matter over to another office for review.
On Wednesday, November 20, Ms. McFayden addressed the media and referred to the night in question as “the night that nothing happened.” She denied receiving any sort of preferential treatment.
Making matters worse, the Pueblo Chieftain reported on November 9, 2013, that on the evening in question, when McFayden’s husband, Troy Manchengo, showed up at the scene to drive her home, he was unable to produce a driver’s license for the deputy, claiming that he did not have it with him. He was allowed to drive the parties home anyway. According to the Chieftain, Manchengo had a history of driving under suspension and, shortly after Manchengo departed with McFayden and Greenwell, the deputy was notified by dispatch that Manchengo was driving under suspension.