14th Judicial District Judge tentatively accepts plead deal of July 4 Grand Lake drunk driver
December 19, 2013
HOT SULPHUR SPRINGS — The Grand Lake man who was the driver of a pickup truck involved in a July 4 accident that left one pedestrian dead and three others injured near Grand Lake pleaded guilty to one count of vehicular homicide and three counts of vehicular assault, as part of a plea agreement with the 14th Judicial District Attorney's Office in Grand County District Court on Wednesday, Dec. 18.
ubject to a deferred judgment and sentences for four years,
As part of the plea agreement, Ackerman also pleaded guilty to one count of driving under the influence of alcohol without deferment. Two counts of child abuse, spawning from having his own two children in the vehicle at the time of the accident, were dropped, as was a charge for possession of a firearm while under the influence.
District Judge Mary C. Hoak tentatively accepted the plea agreement, reserving the right to reject the plea agreement at Ackerman's sentencing hearing, scheduled for Feb. 28, pending the outcome of an investigation by the probate office concerning Ackerman's ability to fulfill the terms of the agreement.
“This is a case where the People have the law on our side. I think the defense has very good facts on its side. Looking at it through that lens, one could see this position as a compromise between the law and the facts.”
Assistant District Attorney
14th Judicial District
Hoak cited the Colorado State Patrol's investigation of the accident as well as the unwillingness of the victim's family to testify in court as reasons for tentatively accepting the plea agreement.
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Under the terms of the plea agreement, Ackerman could be sentenced to one year in county jail in relation to the DUI charge and will be required to complete four years of supervised probation with alcohol testing and treatment, as well as 400 hours of community service.
If Ackerman has fulfilled the terms and conditions of the of the agreement after four years, the vehicular homicide and vehicular assault charges will be dismissed and will not be on his record, while the DUI charge will remain on his record.
If he fails to comply with the terms of the agreement, the four felony convictions will become permanent and he could face up to 12 years in prison.
"This case is unusual in that Colorado State Patrol's accident reconstruction expert concluded that the tragic collision that left one man dead and three persons seriously injured would have occurred even if Mr. Ackerman had been sober," said Fourteenth Judicial District Attorney Brett Barkey, in statements released Dec. 18. "Even so, the Colorado legislature has determined that in order to deter drunk driving, any individual driving under the influence will be held strictly liable for any death or serious injury that occurs, even if there is no bad driving.
"This plea agreement strikes the appropriate balance respecting the legislature's policy of strict liability for drunk driving, resulting in death or serious injury, while acknowledging that Mr. Ackerman could not have avoided the fatal collision."
Hoak questioned Assistant District Attorney Han Ng, who addressed the court during the hearing, saying, "What I'm hearing is that the legislature provides for us to prosecute this individual and to convict him as a felon, but we don't think that's right so we're not going to do it, so what am I hearing wrong? Because I'm not sure you get to do that if that is what your doing," she said.
"The heart of this is there is no middle ground between a Class 3 felony and nothing under these circumstances," Ng said.
Ng discussed the ability of the District Attorney's Office to utilize its own discretion when prosecuting individuals based on the circumstances that surround each case in order to attain what they believe to be due justice.
The State Patrol's investigation weighed heavily on the District Attorney's Office when deciding how to prosecute Ackerman. The Office makes numerous statements eluding to the determination that poor driving did not lead to the outcome of the accident.
Some of the main findings the State Patrol's investigation reported were that Ackerman was driving about 10 miles per hour under the posted speed limit, his headlights were on, and that the accident occurred well into the lane of travel.
"Had a sober driver been operating the 2006 Ford pickup truck at the same moment and same spot of the crash, the result would have likely been the same," the State Patrol's investigation report says.
The investigation report also states that the Westley family contributed to the crash by not yielding to Ackerman's vehicle.
"Therefore, had there been no DUI, Mr. Ackerman wouldn't have faced any charges in this crash at all," the report states.
While Ackerman's driving may not have contributed to the accident, Colorado case law as well as a law enacted by the Colorado legislature places strict liability on drivers who are under the influence for any accidents that cause death or serious injury.
This case law gives the District Attorney's Office the ability to hold Ackerman completely liable for the death and serious injuries to the Westley family, despite the fact his driving did not contribute to the accident.
"Isn't this, to a certain extent, a breech of separations of powers?" Hoak asked of Ng. "Isn't this the DA's office saying we think the law is wrong, therefore we are not going to enforce it?"
"No," Ng said. "In fact this demonstrates the effectiveness of separations of power."
Ng discussed that laws are general in nature and that it is the job of the District Attorney's Office to enforce those laws in a way that they believe best provides for justice.
Ng also discussed the reasons why the District Attorney's office did not want to see the case go to trial and cited the Colorado State Patrol investigation as well as the Westley family's unwillingness to testify at trial. He also cited the ability of the defense to provide a colorable defense, due to the Colorado Patrol investigation and the ability of the defense to dispute Ackerman's blood alcohol content at the time of the accident.
"This is a case where the People have the law on our side," Ng said. "I think the defense has very good facts on its side. Looking at it through that lens, one could see this position as a compromise between the law and the facts."
On the night of July 4, around 10:20 p.m., shortly after the Town of Grand Lake's fireworks display, Ackerman was driving a white 2006 Ford pickup truck eastbound on U.S. Highway 34 (towards Grand Lake).
The members of the Westley family, all of Estes Park, were crossing the highway when Ackerman's vehicle collided with the family.
Gregory Westley, 50, the father of the family, was pronounced dead at the scene of the accident while his wife, Debbie Westley, 49, and three of the family's eight children where flown to Denver-area hospitals for treatment for serious bodily injuries as a result of the accident. The children of the family who were injured included Annabelle Westley, now 19, Amelia Westley, 10, and Elijah Westley, 3.
Ackerman's blood alcohol content allegedly was at 0.156 at the time of the accident, nearly twice the legal limit, when Trooper G.E. Muse of the Colorado State Patrol placed him in custody, according to court documents.
Muse quoted Ackerman as saying he had six to seven beers prior to driving, and when asked on a scale of one to 10 how impaired he was, Ackerman allegedly said he was "probably at a six," states the affidavit for the arrest warrant. Ackerman's two children, ages 7 and 8 at the time, as well as his wife, Erin Ackerman, 35, were passengers in the vehicle at the time of the accident.
Ackerman was booked into Grand County Jail on July 4 on charges of vehicular homicide, a class 3 felony, four counts of vehicular assault for driving under the influence of alcohol, child abuse, and possession of a firearm under the influence. The child abuse charge stemmed from Ackerman having his two children in the vehicle.
Ackerman had a prior DUI in 2002, and past misdemeanors including a successful deferred judgment of third-degree assault in 2002, a Class 3 misdemeanor for disorderly conduct in Larimer County in 2001, and a harassment misdemeanor in El Paso County in 1999.
Reid Tulley can be reached at 970-887-3334