Two snowboarders accused of reckless endangerment after triggering an avalanche near the Eisenhower Tunnel earlier this year are continuing to fight the charges.
On March 25, Tyler DeWitt of Silverthorne and Evan Hannibal of Vail were backcountry snowboarding above the Eisenhower/Johnson Memorial Tunnels when a slab of snow came loose and buried the Loop Road that runs above the tunnel.
Nobody was caught or injured in the avalanche, but the slide damaged a remote avalanche control unit and covered more than 400 feet of the roadway in debris up to 20 feet deep — a slide large enough to destroy a car or wood-framed house — according to a report of the incident from the Colorado Avalanche Information Center. The avalanche danger was moderate at the time of the incident.
In April, the 5th Judicial District Attorney’s Office issued DeWitt and Hannibal citations for reckless endangerment, a Class 3 misdemeanor defined in the Colorado Revised Statutes as recklessly engaging “in conduct which creates substantial risk of serious bodily injury to another person.” Prosecutors also are seeking about $168,000 in restitution for the resulting damage and cleanup.
Both DeWitt and Hannibal pleaded not guilty in the case and are set for a two-day trial in late March.
Jason Flores-Williams, a Denver-based attorney representing both men, said the case could have far-reaching implications across the entire West, where backcountry recreation is popular, and framed the charges as an effort to “criminalize the backcountry” by the district attorney’s office.
“Seeking almost $170,000 is an attempt to send a really chilling message that we are now going to be criminalizing backcountry behavior,” Flores-Williams said. “In taking these cases, our goal is not simply to prevail, but also to stop that message from being sent.
“In our minds, there are certain zones that we cannot let the state enter into and limit the few liberties and freedoms we have left. … They believe you can control everything in the majestic Rockies when anyone who has spent any time snowboarding, camping or hiking knows there are elemental, natural forces beyond human control — avalanches being one of them.”
District Attorney Bruce Brown said the case has nothing to do with trying to police the backcountry or set any sort of precedent, and that his office’s decision to prosecute the snowboarders is entirely based on their behavior on the day of the avalanche.
“The charges are narrow, and there’s no subtext to the prosecution,” Brown said. “The underlying charge is used every day. We think the facts in the case fit the charged crime by virtue of probable cause determination, and it will be up to a jury in Summit County to determine whether it does or not. But there’s no broader aim.”
Earlier this week, Flores-Williams entered a motion to the court to try to suppress evidence in the case, including all statements and videos obtained by the Colorado Avalanche Information Center.
In the motion, Flores-Williams claims that the information center collected evidence in the case — including GoPro video footage of the avalanche — and later disclosed it to law enforcement without previously informing the snowboarders it may be used in a criminal investigation.
“It’s a real basic constitutional right to know that when a state agency requests that you give them something in the course of a potential criminal investigation, that they have a duty to inform you that the things you’re giving them could be used against you,” Flores-Williams said. “That’s called informed consent, when a person is empowered based on their Fourth and Fifth Amendment rights to make that decision for themselves.”
Colorado Avalanche Information Center Director Ethan Greene said he was unable to comment on the case amid ongoing court proceedings. The center operates as a partnership between the Colorado Department of Natural Resources, Colorado Department of Transportation and the Friends of the CAIC nonprofit.
Brown said his office would file a response to the defense’s request to suppress the evidence but that he ultimately felt it would be allowed in trial.
“It’s not uncommon that people seek a court order precluding admission of certain evidence,” Brown said. “It doesn’t appear to me that this is the type of evidence that was gained by any form of coercion. So I would expect that the evidence that was gathered during the course of the investigation would be presented at trial. But that will be for a judge to determine.”
A motions hearing in the case is scheduled for Feb. 16. DeWitt and Hannibal are scheduled to begin their trial March 25, exactly one year removed from the avalanche.