A woman who had sex with an El Paso County sheriff’s deputy after her arrest for drunken driving on Christmas Eve 2018 was “super drunk” when the deputy took her to a hospital for a blood test, a medical worker said.
A UCHealth Memorial Hospital Central employee who drew her blood told police the woman behaved “erratically” and that he could “easily see her being manipulated into something,” according to the Colorado Springs police report obtained recently by The Gazette.
The worker’s observations are among new details that potentially corroborate the woman’s claim, in a federal lawsuit, that then-Deputy David Kwiecien coerced her into sex while she was still “gravely intoxicated,” which the lawsuit characterized as rape.
Under Colorado law, having sex with someone who is unconscious, asleep or otherwise unable to consent is considered sexual assault, a felony that can result in lengthy prison sentence, even a life term.
Kwiecien, 45, a three-year veteran of the Sheriff’s Office, was fired in April for the sexual encounter but wasn’t charged with a sex crime.
“An investigation has determined that the conduct occurred when the woman was no longer in custody and had returned to her home, and, while (Kwiecien’s) actions were highly inappropriate and unprofessional, they do not rise to the level of criminal charges under Colorado law,” the 4th Judicial District Attorney’s Office said in a June statement.
However, in their statement, prosecutors didn’t disclose that the woman’s blood-alcohol content was .287%, more than three times the legal limit for drivers, raising questions whether she was capable of granting consent under Colorado law.
Kwiecien declined to comment when reached by phone on Friday, implying he was following an attorney’s advice. Under questioning by police, he acknowledged that the woman, while still at the hospital, said she "would do anything" to get out of a DUI, the report said. But he said he believed she had largely sobered up during her time there.
According to the 243-page police report, the woman’s blood was tested at roughly 10 p.m. on Christmas Eve, and the sex occurred about four hours later.
A person’s blood-alcohol content decreases about .015% every hour as the body metabolizes alcohol, medical experts say.
Four hours after testing a BAC level of .287% would bring a slight decrease — to about .227%, still nearly three times the legal limit for driving. But experts also say there are many factors that contribute to a person’s tolerance including age, weight, gender, medications and a history of substance abuse.
While those factors play a large role, a person with a BAC of .227% would generally exhibit strong signs of impaired judgment, slowed reaction time and a loss of physical coordination, said Amanda Smith, director of the Substance Use Disorders division at Aspen Pointe.
However, someone who frequently uses alcohol may build up a tolerance that “can create the illusion that you are not impaired,” Smith added in an email.
The woman’s son told police that when he picked her up at the hospital and took her home she was “on her way to being blackout or pass-out drunk.”
Kwiecien was still in uniform when he visited the woman shortly after her return home, saying he needed more information for his report.
The then-deputy returned at 2 a.m., after his shift was done. He left less than an hour later, after they had sex.
The report includes text messages showing that Kwiecien pursued sex from the woman for several days afterward, even after she joked about her DUI ticket getting “lost” and requested his “help” with a potential jail term.
In each case, Kwiecien declined to intervene or otherwise sidestepped her requests. But in follow-up messages, the deputy renewed his overtures, including asking her if she wanted to be “FWB’s,” or friends with benefits, a common term for casual sex partners.
In comments to a Gazette reporter in January, District Attorney Dan May suggested the woman’s text messages with Kwiecien had factored into the decision not to charge him.
Asked if it’s possible for someone to engage in consensual sex with a BAC of .287%, May responded: “How much of the facts do you know? Are you aware of the communications, and the form of the communications?”
May said he wouldn’t elaborate before he checked what was in the “public sphere.”
May offered to conduct a more formal interview at a later date, but rescinded the offer through his spokeswoman, who referred a reporter back to the written statement from June.
A jury convicted the woman of drunken driving in December. Details of her sentence weren’t immediately available. She has a previous drunken-driving conviction dating to 2010.
Her lawsuit, filed in December in U.S. District Court in Denver, blamed a loophole in the Sheriff’s Office’s policy prohibiting sex between deputies and jail inmates, and between employees and prospective employees. It allegedly was silent about people who were arrested and released from custody.
Claiming her memory of the night was spotty, she said she didn’t remember letting Kwiecien into her house, or getting undressed. Kwiecien later told her she was naked when she opened the door to greet him.
She claimed she was in and out of consciousness during the sex, and that she vaguely remembered Kwiecien getting dressed afterward, when he “asked her if she even knew his name.”
She didn’t remember the traffic stop, or meeting Kwiecien, and said that she was still intoxicated when she woke up the next morning.
She told investigators that "she wished she could forget all of the little bits and pieces she did remember, and that may make life easier."
"I can't remember most of it," she said.
During a recorded phone call arranged by police investigators, Kwiecien apologized for his conduct but denied that he had “preyed” on her.
“I actually didn’t think you were that drunk,” he said.
Kwiecien also told the woman during the recorded call that he “should have waited,” and that it had been “a real long time since anyone showed interest in me."
“It was a moment of weakness on my behalf,” he added.
Detectives who interviewed Kwiecien asked him why he turned off his body-worn camera during the initial stop at the woman's home, and why he muted it several times at the hospital.
Kwiecien responded that he “does have a bad habit of muting” the camera, saying, “I know I do that sometimes.”
Under questioning by police, Kwiecien said that the woman was flirting at the hospital and that she told him she "would do anything" to get out of a DUI.
He said he believed she had largely sobered up at the hospital, however, and that he suspected her of being a “functional alcoholic” when he saw the blood results in January.
Kwiecien described their sexual encounter as “makeup sex,” saying it was when “people were mad but they still had sex.”