Police: Victim's meth use irrelevant in fatal crash at Baskin Robbins

DA's office files 9 more charges against illegal immigrant

By April M. Washington, Rocky Mountain News (Contact)

Published November 10, 2008 at 6:16 p.m.

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Francis Hernandez, 23, is accused of causing the fatal car crash.

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It is immaterial that Patricia Guntharp - one of three people killed in a collision outside an Aurora Baskin-Robbins ice cream shop in September - tested positive for methamphetamine, police and prosecutors said Monday.

"Anything she has in her system doesn't change the outcome of the accident or the cause of the accident," Aurora police Detective Johnny Lee testified at a preliminary hearing for Francis Hernandez, 23. "It does not change the fact that (Hernandez) was running the red light at 78 miles an hour."

Guntharp was making a left turn near Mississippi Avenue and Havana Street when Hernandez punched through a red light and broadsided her pickup.

Killed were Guntharp, 49, of Centennial; Guntharp's passenger, Debbie Serecky, 51, of Aurora; and Marten Kudlis, 3, of Aurora, who was in the ice cream shop.

The Arapahoe County District Attorney's Office on Monday filed nine additional charges against Hernandez, including child abuse resulting in death. He now faces a total of 19 charges.

Judge Anne Ollada bound Hernandez over for criminal trial and set his arraignment for Dec. 11.

Guntharp's family members, many wearing black armbands, sat in the courtroom during the three-hour hearing.

Marten Kudlis' parents were also there. Both families declined to talk to reporters.

Nearly a dozen members of Hernandez's family also attended.

Before the hearing got under way, Hernandez winked at his 2-year-old daughter, who later was removed from the courtroom by her mother when she cried out for her father.

"I want my poppy," she said. "I want my poppy."

Brenda Aleman, the mother of Hernandez's children, called the hearing painful.

"They're not letting his attorney say anything to help him," she said as she wiped her tears. "The accident wasn't just his fault. It seems so unfair."

The Sept. 4 deaths rekindled a nasty immigration debate after it was learned that Hernandez was an illegal immigrant and had been arrested nearly 20 times but was never deported.

The case took a startling twist when an autopsy later revealed that Guntharp had enough methamphetamine in her blood to be considered intoxicated.

In testimony Monday, police said a data recording device in Hernandez's SUV showed he was going 78 mph two seconds before impact. Guntharp's speed was an estimated 10.4 mph.

"He killed a child and two women as result of his reckless driving," said Rich Orman, Arapahoe County assistant district attorney. "There is no evidence that Guntharp was driving bad; the issue is this defendant's reckless conduct."

But Kallman Elinoff, Hernandez's attorney, said when Guntharp turned left, she was 30 yards from the intersection and crossed a double-yellow line, which he called dangerous and illegal.

Elinoff unsuccessfully petitioned the judge to drop what he called excessive charges. He also argued that toxicology reports prove his client was not at fault.

"The fact that she was on methamphetamine did contribute to the accident," he said. "I think 12 reasonable jurors will see that."

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Comments

November 10, 2008

6:27 p.m.

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BeckMom writes:

This guy's lawyer sounds like a sleazy mouthpiece! What a crock!
So if he had not run the red light, would this woman have crashed into the Baskin-Robbins anyway? If he hadn't run the light so fast, maybe the collision wouldn't have been strong enough to push into the shop. Sounds like it's his fault, drugs or no drugs, legal or illegal. I hope the DA kicks this guy's *@#.

Prayers to the families.
November 10, 2008

6:31 p.m.

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happymike44 writes:

Why was this guy ever in this country in the first place.
He deserves to be in prison for the rest of his life.
This guy deserves what eve will happen to him in prison.
The person who allowed him to drive their s.u.v. needs to be charged as an accomplice to this tragedy.
They let him drive their truck and killed people.
They need to stand next to this dirtbag and face the punishment they deserve.
Also we need to report and deport all illegals in this country.
November 10, 2008

6:43 p.m.

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informationmunky writes:

His client is not at fault??? He ran a red light at 78 mph and smashed into a vehicle., killed 3 people, and then fled the scene. I'm sure this Elinoff guy is just trying to provide the best defense for his client, but come on...what world is this guy living in.. If I was high on meth, and some guy ran up and shot me, my girlfriend, and my 3 yr old nephew. would that make it my fault? This guys lawyer should be reported to the bar for trying this defense stratagy.
November 10, 2008

6:53 p.m.

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gs writes:

My bet is he gets off.
November 10, 2008

7:15 p.m.

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The_Punnisher writes:

TITLE 8 > CHAPTER 12 > SUBCHAPTER II > Part VIII > § 1324
Prev | Next
§ 1324. Bringing in and harboring certain aliens

(a) Criminal penalties
(1)
(A) Any person who—
(i) knowing that a person is an alien, brings to or attempts to bring to the United States in any manner whatsoever such person at a place other than a designated port of entry or place other than as designated by the Commissioner, regardless of whether such alien has received prior official authorization to come to, enter, or reside in the United States and regardless of any future official action which may be taken with respect to such alien;
(ii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, transports, or moves or attempts to transport or move such alien within the United States by means of transportation or otherwise, in furtherance of such violation of law;
(iii) knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation......

WHY DOES THE ROCKY STILL CALL IT AN ILLEGAL IMMIGRANT????

Time to get REAL and use the PROPER LEGAL TERM!!
November 10, 2008

7:24 p.m.

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standupforwhatsright writes:

BeckMom, Happymike44 it's this type of narrow mindedness that the conservative right is no longer in power. granted, this Hernandez did wrong, he was speeding, ran a red light and three people are dead. I am sorry for the family of the dead! the abuse comes from the legal system, asst da, promoting him/her self to the next political level by throwing all the possible charges against this guy. comon; child abuse resulting in death? why not charge the guy with being at the wrong place at the wrong time? or charging him with; your name is Hernandez 15-20 years! the legal system could be charging you next?
November 10, 2008

7:43 p.m.

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redwhiteandBLUE writes:

Standupforwhatsright,
You are so right! This is a good lawyer, right or wrong he has to defend him; and he is. You never know when you're in that position
with a hispanic name and you need someone like Ellinoff.
Condolence to the family. It wasn't personal. Just someone not from this country and speeding.
November 10, 2008

8:28 p.m.

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ImissColo writes:

Oh please, stop with the references to political party and racism. Those are two overused and absurd arguments.
The Statute the punnisher recited should be followed. I would suggest that not only Mr. Hernandez, but also everyone who knows him, the owner of the truck, whoever employs him, and those responsible for him not having been deported long ago should each have to pay the price for harboring a criminal illegal alien fugitive from the law. This man is a fugitive and an illegal alien. He does not want to be here to make a better living for himself and his family; he is here to be as destructive as he has been to both himself and society.
So please picket, call, march, whatever you have to do, but make the people who are your government CO to do their jobs and uphold and enfore the LAW for a change!!!! To the political talking heads, stop letting your greed for votes, cheap labor and disdain for the law and the citizens cloud your judgment and your sworn duty to uphold ALL the laws.
November 10, 2008

11:56 p.m.

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fed_up writes:

of course, it's all the victims fault! they should just let him go so he can run back to mexico and disappear. how dare they try to hold him accountable for this,,,damn justice system.....
November 11, 2008

3:46 a.m.

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LOUIE writes:

Sadly the mechanics of how the accident occured places the blame squarely on Hernandez; but once that defense attorney raises the level of Meth in the two ladies blood tests, it will raise substantial doubt. Just the mere mention of "Meth" is enough to blast a jury to question the prosecutor's case. Does the prosecutor mention it in openning statements to lessen the impact or wait for the defense to kick it out? I would put it up front since the one had used a significant amount that day according to the toxcology reports. Don't leave the timing surprise in the defense's hands. You hear all the media horror stories about Meth, people manufacturing it, the clean up expenses, the cops dressed in zootsuits to deal with it nightly on the news, thus public perception is this stuff is worse than plutonium. I venture the prosecutor cuts a deal involving a lesser sentence and deportation which should have occued somewhere along the 15 arrests this man had as an illegal in Mr. Ritter's and John Hinckenlooper's sanctuary city and state. Governor Ritter used to plea bargain the illegals and set them free as a prosecutor to go out and commit even worse crimes like rape; the mayor Mr, Hinckenlooper employed illegals in his restaurants that ended up murdering police officers. Now as the crimes being committed by illegals are surfacing with greater frequency, they clamor for "investigations", what a joke. Another democrat ex-mayor Pena even appears at rallies to support all the illegals who violated our nations immigration laws. This is a sad case all the way around. The voters in Denver passed a new law requiring vehicles to be impounded and taken on the spot from unlicensed drivers, Mayor Hinckenlooper and the city counsel refuse to enforce the law as voted upon by the people because it hurts the illegals. Well maybe if an unlicensed and uninsured illegal hits and cripples one of their family members as has happened to others, they might change their tune. Especially when the illegal runs to Mexico and leaves them with the medical bills. But that's unlikely since Hinckenlooper never apologized to DPD for the illegal he employed at his restaurant killing officer Young and running to Mexico. Illegals, crime, and sanctuary cities and the politicians who refuse to enforce the law in their capacity as executives in government, do they really represent the American people? I think not!
November 11, 2008

4:43 a.m.

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roger44 writes:

the lawyer is doing what he was hired to do. if he didn't, an appeal could be filed to throw it out because of ineffective counsel. The ones that aren't doing their jobs are the politicians who refuse to enforce the laws on the books. it will take a terrorist that came across the southern border and killed many people to get them off their butts, and then I wouldn't hold my breath. A number of states have laws that say it's illegal to commit suicide, ever seen them drag a dead body in and prosecute? They need to get their heads out of the sand, or whatever orfice they have it in.
November 11, 2008

6:27 a.m.

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SierraStorm writes:

Obama will give thousands of these guy's amnesty.
November 11, 2008

7:08 a.m.

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NDeeZ writes:

Once again: sloppy journalism.

It took me less than four minutes online to find a CO Driver's Manual which states the meaning of two yellow lines:

"Two-lane, two way roadway, passing prohibited both directions, crossing center line as part of left turn maneuver is permitted."

Allowing the defendant's lawyer to muddy the water is NOT good journalism--you don't have to present both sides when one side is demonstrably wrong (or lying.) You CAN let the lawyer make his claim, but then you MUST point out the truth: he or she is WRONG...then go on to state the law that contradicts the lawyer's claim.

Of course the defendant's lawyer is doing every thing he can to defend his client, but when he crosses the line to A) lying, or B) not KNOWING the law, it should be pointed out EVERY TIME.
November 11, 2008

7:40 a.m.

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Acemon writes:

How odd that so many people here who, several days ago, villified the women killed due to the presence of drugs are now turning around and placing the blame right where it belongs: the uninsured speeder. The fact that he's an undocumented alien has nothing to do with his deadly driving habits.

Of course, self-righteous folks like rvt1000 are so wound-up about "druggies" that they can't fathom a world where people are allowed to make their own choices regarding the use or abuse of certain chemicals. Anyone who drinks beer or wine will feel the effects one day and by the next they're back to normal, but the alcohol can still be detected in their bloodstream. Does that make them alcoholics by rvt1000's standards?
November 11, 2008

9:08 a.m.

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conniesz writes:

This si ridiculous - she was impaired and if the other person was a white male with no drugs or alcohol in his system she would be declared at fault. I thought the presence of drugs or alcohol implied fault in all cases. The laws cannot change because you want to crucify an illegal immigrant.
November 11, 2008

9:17 a.m.

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Acemon writes:

rvt1000,

Without disputing the claims made on the sites you referenced, it seems kind of like reefer madness where they attributed rape and murder and crazy behavior such as jumping off rooftops. I agree that meth causes problems, and personally I think it's about as sensible as sniffing glue or huffing paint, but not even the cops consider it as a factor in the crash - the only person claiming that is the defendant's lawyer.

My objection to your letter was classifying them as "druggies" when nobody else is making that claim. Do you believe all people who drink beer or wine should be called alcoholics?

Yes, the D.A. is adding a lot of charges, but it's fairly common with criminal behavior. With that method it's a good chance the major charges will stick in exchange for the smaller charges being dropped.
November 11, 2008

9:29 a.m.

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philvysor writes:

rvt1000 you are right meth is a very nasty drug, I used it for a year before i got help. You don't eat or sleep for several days sometimes you even go for a week. When you are on meth all you do is crave for more its worse than crack. When you do come down you sleep for days in a row.

There is fault here on both sides, The young man for driving crazy through traffic and running a red light. (If he is from Mexico I understand why he was driving this way because thats how they all drive in Mexico).

And the lady for driving while on meth. (Who knows how long she was impaired).
November 11, 2008

9:42 a.m.

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DenverNATIVE1 writes:

"The laws cannot change because you want to crucify an illegal immigrant."

They should at least lower the speed limit on Havana from 78mph.
November 11, 2008

9:50 a.m.

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Creative_N_Denver writes:

While Hernandez was in court his children were there? What in the heck were these women thinking? Please tell me that the police are going to check these families completely for American status and possible mental child abuse! As a parent I would no sooner take my child to a criminal court hearing than to a crime scene! Emotions in a case like this is huge and to place a child among it is completely irresponsible! Why would the court even allow it? How often does the accused lash out? This is just another way for the lawyer to sway a judge and the bystanders in court!
Again the families of Hernandez are claiming he's the victim- I am so tired of the poor me bull that comes out of the mouths of criminals and their families! If you do the crime then stand up and take your punishment. He was caught after running and his family tried to hide him, any charges here? Sounds like a bunch of real winners. I am so done with this case, they need to get him in court and either have a trial by jury or by judge. Either let him off or convict him and then sentence him. It is time to give these families closure!
November 11, 2008

10:09 a.m.

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SlouchingTowardBoulder writes:

"This guys lawyer should be reported to the bar for trying this defense stratagy."

Elinoff has had previous problems in his zealous practicing of law. Several years ago he was suspended for attempting to bribe a law enforcement officer on behalf of his client. He almost was permanently disbarred but manage to avoid that with all manner of spurious claims.

I know Elinoff. I went to law school up in Boulder with him in the 1980's. He is the quintessential "slick and sleazy" lawyer and has no moral moorings whatsoever. I would remind those that post here that every lawyer - even public defenders and defense counsel - have an obligation to follow the professional ethics of the bar and are deemed to be "officers of the court". Elinoff's past history, and current practice appear to belie that burden.
November 11, 2008

2:11 p.m.

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Beergut writes:

So I can kill people with my car if they are on drugs. Sounds like a fun hobby. You can invite them in, get them high, and then run them down. And by the logic of Hernandez's lawyer I will get set free to do it again. Meet at park by the Capitol if you want to be my first victim... uh I mean if you'll let me be your last victim.
November 11, 2008

3:34 p.m.

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BigSky182 writes:

Anyone who thinks the Woman's judgement was impaired because she was on meth, please tell me what poor decision she made that contributed to this accident.

She needed to make a completely legal left turn (thank you NDeeZ for providing the specific law proving that). She was several hundred feet from any on-coming traffic AND the oncoming traffic had a red light.

There was absolutely no reason that she should have decided not to turn there and then. It is beyond reasonable expectation to assume that the oncoming car that is several blocks away and on the other side of a red light is going to run that red light at 114 feet per second and slam into your vehicle.

Should she have been driving if she was on meth? No, of course not. Did that have anything to do with the accident? No, it didn't.

There are 2 different issues at play here. One is the fact that this man, travelling at more than double the posted limit and running a red light is completely liable for this accident.

The entirely seperate issue is his immigration status. ANY natural born, US Citizen with THIS GUY'S criminal past would have been locked away in a Federal Prison years ago. THIS GUY was slapped on the wrist and re-released REPEATEDLY simply because he is an illegal alien and no one wanted to bother enforcing the laws that already exist.

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