A Mesa County judge improperly ordered a defendant to pay nearly $3,600 for DNA testing in his homicide prosecution without a legal basis for doing so, Colorado’s second-highest court ruled last month.

Richard Alan VanderVelde pleaded guilty in 2023 to second-degree murder and related offenses after killing his mother, Sylvia Frens, in 2018. Although VanderVelde was long a suspect, it was not until her remains were discovered in 2022 that police arrested him.

As part of his plea agreement, VanderVelde would pay $6,284 for financial restitution and the costs of his prosecution. However, the district attorney’s office subsequently requested that VanderVelde pay an additional $3,597.

The extra money stemmed from the Grand Junction Police Department’s decision to send bloody carpet padding from Frens’ home to Texas so a private laboratory could test it. Although the Colorado Bureau of Investigation concluded a nearby stain likely contained Frens’ DNA, the bureau could not have tested the carpet pad without destroying it.

The police department sent the flooring to Texas prior to the discovery of Frens’ body, but did not seek to halt the testing after her remains were recovered. By the time law enforcement received the test results, VanderVelde had already pleaded guilty.

The defense argued that testing the carpet padding was neither reasonable nor necessary under the circumstances. But District Court Judge Jeremy Chaffin ordered VanderVelde to pay for the DNA testing, reasoning it fell under the category of “actual costs paid to any expert witness” — a permissible fee to pass on to defendants.

VanderVelde challenged the order on appeal, arguing the bill for the testing had nothing to do with an expert witness’s fee, travel costs or testimony. A three-judge panel for the Court of Appeals agreed.

“The prosecution did not present any evidence at the hearing regarding consultations with the lab about preparing an expert report or testifying at trial,” wrote Judge Timothy J. Schutz in the panel’s Nov. 21 opinion.

Although the law also allows prosecutors to recover “any other reasonable and necessary costs,” Chaffin did not find the DNA testing to be reasonable and necessary, nor did the prosecution dispute that finding on appeal.

The panel overturned the order for VanderVelde to pay $3,597.

The case is People v. VanderVelde.