People v. Miller

409 P.3d 667

The PEOPLE of the State of Colorado, Complainant

v.Dan Eldon MILLER, Respondent

Case Number: 17PDJ034

Office of Presiding Disciplinary Judge of the Supreme Court of Colorado.

NOVEMBER 30, 2017.

OPINION AND DECISION IMPOSING SANCTIONS UNDER C.R.C.P. 251.19(b)

WILLIAM R. LUCERO, PRESIDING DISCIPLINARY JUDGE

Dan Eldon Miller ("Respondent") pleaded guilty to a misdemeanor charge of driving under the influence ("DUI"). Although this was Respondent's first DUI conviction and he caused no actual harm to himself or others, his conduct carried a risk of serious harm, especially because his blood alcohol content ("BAC") was measured at 0.254. The majority of the Hearing Board finds that Respondent's conduct violated Colo. RPC 8.4(b) and C.R.C.P. 251.5(b), warranting public censure. One member of the Hearing Board dissents, finding that Respondent did not transgress the Rules of Professional Conduct.

I. PROCEDURAL HISTORY

On May 17, 2017, Bryon M. Large, Office of Attorney Regulation Counsel ("the People"), filed a complaint with Presiding Disciplinary Judge William R. Lucero ("the PDJ"), alleging that Respondent violated Colo. RPC 8.4(b) and C.R.C.P. 251.5(b). Through his counsel, Kevin C. Flesch, Respondent submitted his answer on June 20, 2017. A hearing was then set for October 5, 2017.

The People filed a motion seeking judgment on the pleadings on July 7, 2017. After considering Respondent's objection, the PDJ denied the People's motion. The PDJ concluded that the limited admitted facts in this matter were insufficient to find as a matter of law that Respondent violated Colo. RPC 8.4(b) and C.R.C.P. 251.5(b).

On October 5, 2017, a Hearing Board comprising the PDJ and lawyers Linda L. Ramirez-Eaves and Terry Rogers held a hearing under C.R.C.P. 251.18. Large represented the People, and Respondent appeared with Flesch. During the hearing, the Hearing Board considered the stipulation of facts, stipulated exhibit S1, and testimony from Respondent and Chad D. Emrick, Ph.D.¹

II. FACTS AND RULE VIOLATIONS

Respondent took the oath of admission and was admitted to the bar of the Colorado Supreme Court on October 6, 1975, under attorney registration number 06675. He is thus subject to the jurisdiction of the Colorado Supreme Court and the Hearing Board in this disciplinary proceeding.²

Findings of Fact³

Although Respondent practices real estate law from an office in Englewood, he regularly spends three or four nights a week at his mother's home in Silverthorne.⁴ Respondent celebrated the 2016 New Year's holiday in Silverthorne. He testified that he ate brunch at a restaurant around 11:00 a.m., consuming two Bloody Marys. He drove to a different bar where he "probably had a couple more" drinks. After driving to an Irish pub, he consumed two glasses of wine before leaving around 4:00 p.m.⁵

When Respondent left the pub, he found that his car would not enter reverse. He drove to a Target store, hoping to purchase transmission fluid. Target did not have that product, so he drove to a nearby AutoZone. There, he bought transmission fluid and enlisted two employees to help with his car. One of the employees smelled alcohol on his breath and summoned the police.

Respondent was arrested at the AutoZone on suspicion of DUI. He cooperated with the authorities, he said, and consented to a blood alcohol test, which was performed at a local medical center at 5:36 p.m. that day. The results showed a BAC of 0.254.⁶

On September 14, 2016, Respondent pleaded guilty to a misdemeanor charge of DUI in Summit County Court case number 16T3.⁷ This plea established that he drove a vehicle after he had consumed alcohol affecting him "to a degree that [he was] substantially incapable, either mentally or physically, or both mentally and physically, to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle."⁸ This was Respondent's first DUI conviction. He was sentenced to twenty days of in-home confinement in addition to the following conditions: 1) no violations of the law aside from traffic infractions; 2) no consumption of alcohol or illegal drugs;⁹ 3) completing an alcohol evaluation and following recommendations therefrom; 4) sixty hours of community service; 5) eighteen months of alcohol monitoring; 6) twenty-four hours of level-two education and fifty-two hours of level-two therapy; and 7) an interlock system on his vehicle per Department of Motor Vehicles requirements.¹⁰

Respondent testified that his car was outfitted with an ignition interlock device in May 2016, to remain in place until May 2018. The device was designed to prevent his car from starting if he consumed alcohol. Respondent also explained that although his sentence formally included eighteen months of alcohol monitoring, he was not in fact monitored during his probation through any means such as random Breathalyzer tests. He testified, however, that in order to comply with the conditions of his bond and his probation, he drank no alcohol from the date he was charged until he completed probation in February 2017, when he resumed drinking, though at a reduced level.

Respondent testified that he reported his DUI conviction to the People. At the People's suggestion, he agreed to undergo an alcohol evaluation by Chad Emrick, Ph.D., an expert in psychology with a specialty in alcohol use disorders. As Dr. Emrick understood it, his task in the evaluation was to determine if Respondent had an alcohol use disorder or other related problems, and if so, to suggest how to address the disorder. This task, Dr. Emrick testified, included assessing how alcohol affected Respondent's overall health.

During the initial appointment in December 2016, Dr. Emrick recalled, Respondent appeared sincere, candid, respectful, and fully cooperative. In addition to assessing Respondent's mood and conducting a depression inventory, Dr. Emrick used a screening tool to assess Respondent's relationship with alcohol, taking into account his quantity and frequency of alcohol use as further described below, his physiological dependence on alcohol, and any life problems that he might have experienced based on his alcohol use. Respondent told Dr. Emrick that his drinking had not caused him any problems, except for elevated liver enzymes noted by his medical doctor.¹¹ About a week after the examination, Respondent submitted to prearranged breath and urine tests, which detected no alcohol or illegal drugs.¹² In addition, Dr. Emrick contacted three "collateral informants" identified by Respondent. These friends and acquaintances corroborated Respondent's report that he had abstained from alcohol since his arrest, though Dr. Emrick noted that he generally prefers to speak with informants who have a closer relationship to the examinee than did the informants Respondent designated.¹³

Critical to Dr. Emrick's assessment was Respondent's reported history of alcohol consumption. Respondent told Dr. Emrick that when he first began working as a lawyer at a downtown Denver firm in 1975, he fell into a general pattern of drinking two or three glasses of wine every weekday at lunch with his colleagues. Respondent explained to the Hearing Board that this was "how business was done, that it was done over lunch or dinner with cocktails, and that was how deals were hammered out." During that period, he also consumed three or four alcoholic drinks after work, as well as one or two drinks in the evening. In general, he had a total of six to eight alcoholic drinks per day—a pattern that continued after he formed his own law firm as a solo practitioner in the mid-1990s, and up until his arrest on January 1, 2016.

When Dr. Emrick asked Respondent during the evaluation whether he planned to resume drinking after his probation ended, Respondent replied that he was not sure. Dr. Emrick said that he has never before heard such a response in an alcohol evaluation—the response is "always no."

After completing the evaluation, Dr. Emrick diagnosed Respondent with alcohol use disorder, mild, in early remission.¹⁴ Dr. Emrick expected that it would be a challenge for Respondent to resume drinking at only a moderate level. According to Dr. Emrick, scientific standards call for men aged sixty-five or older to consume no more than seven standard ethanol content drinks in any seven-day period. Because Respondent had consumed substantial quantities of alcohol on a daily basis for several decades, Dr. Emrick said, normal biological adaptation processes would likely make it very difficult for Respondent to maintain a pattern of drinking at the recommended level. Dr. Emrick testified that when a person with a history of heavy drinking resumes drinking, the body typically readapts within two or three days to the level of alcohol that the person was previously habituated to consuming. As noted below, however, Respondent reported at the disciplinary hearing that he has succeeded in maintaining a significantly lower level of alcohol consumption since his probation ended in February 2017.

Dr. Emrick recommended that Respondent begin to meet quarterly with an alcohol expert and undergo monitoring of his relationship with alcohol.¹⁵ If Respondent demonstrated continued abstinence from alcohol, Dr. Emrick said, Respondent would require no further monitoring or treatment. But if Respondent were not abstaining from alcohol or not able to drink at a moderate level, Dr. Emrick said, Respondent should enter an intensive outpatient alcohol program for alcohol use problems, followed by outpatient counseling until such time as a therapist determined treatment was no longer necessary.¹⁶ Dr. Emrick did not clearly state the goal of the monitoring and treatment recommendations, nor did he indicate that these measures were necessary to ensure that Respondent could competently practice law or avoid future instances of drunk driving.

At the disciplinary hearing, Respondent averred that his pattern of drinking has "dramatically" changed...