A wrongful DUI arrest by Loveland PD kept woman from her kids for months. It's part of a pattern, attorney says.

Published by the Denver Gazette on Jan. 17, 2022.

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Emily Dutka was arrested by the Loveland Police Department on two counts of DUI in May 2020. The issue was, she wasn’t drunk. 

After the arrest, a blood test confirmed Dutka’s blood alcohol concentration was 0.027 — significantly below the legal limit of 0.08. Charges against Dutka were dropped and her record was expunged, but the damage was already done.

At the time of the arrest, Dutka was in the National Guard and in the process of transferring to the Army Reserves so she could move overseas to be with her husband and two children, who were living in Austria and preparing to move to Serbia for her husband’s job. Because of the arrest, the transfer was dissolved and Dutka was separated from her family for nearly six months.

“It’s time I will never get back,” said Dutka, a 27-year-old Fort Collins resident. “I missed my daughter’s first steps. I missed her second birthday. … It’s caused issues between my marriage, it’s caused emotional issues, attachment issues (with my kids).”

Dutka was supposed to join her family in Serbia in June 2020, but instead she was forced to start her transfer process over and didn’t get to move until November 2020. This came after Dutka had already been away from her family since November 2019 because she had to return to the U.S. for training.

“It kept me away from my kids for a year, when it was only supposed to be six months,” Dutka said. “My son, at the time, he was 5 and my daughter was 2. I already spent so much time away from them and I couldn’t return home and they didn’t understand what was going on.”

Dutka said the incident caused significant emotional hardship for her family, adding that she and her husband are now in the process of getting divorced. The arrest also caused financial hardships due to legal fees and Dutka having to rent an apartment in the U.S. for six months.

Attorney Sarah Schielke with the Life and Liberty Law Office said Dutka is not the only person to be hurt by wrongful DUI arrests made by the Loveland Police Department.

Schielke filed a lawsuit against the police department earlier this month, alleging that Loveland Officer William Gates has knowingly and wrongfully arrested at least four people in the last year for DUI by claiming they smell of alcohol and have watery eyes, only for their test results to come back clear.

“I am aware of over a dozen wrongful DUI arrests made by the Loveland PD in just an 18-month span,” said Schielke, who represented Dutka in 2020 to get her record expunged. “Two more individuals who were wrongfully arrested by LPD officers for DUI have called me in just the last hour. There is a clearly emerging pattern here.”

Schielke said she is working on filing an amended complaint against the police department with the new allegations. Dutka didn’t pursue legal action at the time of her arrest because she was focused on getting back to her family; however, she said she is considering joining Schielke’s lawsuit.

Dutka’s arrest happened just after 11:30 p.m. on May 9, 2020, near West 43rd Street and North Wilson Avenue in Loveland. Dutka said she was driving to her aunt’s house in a rental car after dropping off her friends from a Mixed Martial Arts fight. Loveland Sgt. Antolina Hill pulled her over for having a headlight out.

In a copy of the arrest report provided by Dutka, Hill claims Dutka’s eyes were watery and bloodshot and that she smelt alcohol on her breath. Dutka repeatedly maintained her sobriety, admitting to Hill she had taken a few sips from a drink four hours prior to driving. After voluntarily completing a roadside sobriety test, Hill arrested Dutka and took her to get her blood tested, which proved Dutka’s sobriety weeks later.

The Loveland Police Department defended Dutka’s arrest in a statement sent to The Denver Gazette, saying the arrest was lawful because it was based on probable cause.

“Probable cause does not require an officer prove the charge beyond a reasonable doubt, and it does not require prosecution and conviction,” the statement said. “The fact that the District Attorney’s Office dismissed the charges is an example of the justice system working as intended. This was not a wrongful or unconstitutional arrest."

Immediately after the arrest, Dutka filed a complaint against Hill. The police department responded with a letter two months later, saying they reviewed the incident and found that Hill acted in accordance to their policy.

However, Dutka claims Hill lied on the arrest report to justify the arrest. In the report, Hill wrote that Dutka failed a nystagmus test, meaning her eyes involuntarily jerked as she gazed in a certain direction, a sign of intoxication. Dutka said this isn’t true and that she and her father, who is a police officer in Fort Collins, repeated the test when she had drank alcohol and found no sign of nystagmus.

The Loveland Police Department has been the subject of high-profile complaints in the last year. In August, the police department was sued after an officer fatally shot a family’s dog for walking up to him.

Most infamously, Loveland officers violently arrested a 73-year-old woman with dementia in June 2020 — throwing her to the ground, breaking her arm and dislocating her shoulder — after she allegedly stole less than $15 worth of items from a Walmart store. A resulting lawsuit named Hill as a defendant, saying she ignored the victim’s complaints of injuries. The lawsuit resulted in a $3 million settlement in September.

“It’s not just Sgt. Hill that is the problem. It’s the police department as a whole,” Dutka said. “There’s so much misconduct and no accountability. I want them to recognize that their insubordination and their misconduct have caused severe hardship for many families, emotionally, mentally and financially.”