For the professional edge in your day-to-day practice, rely on the most timely, objective reporting on significant developments, trends, and emerging patterns in criminal law today—Criminal Law...
Police don’t need a warrant to draw blood from an unconscious driver suspected of driving under the influence of alcohol so long as they have probable cause, the Colorado Supreme Court ruled April 17 ( People v. Hyde , 2017 BL 124313, Colo., No. 15SA291, 4/17/17 ).
It also ruled that prosecutors may use a defendant’s refusal to consent to blood-alcohol testing as evidence of guilt at trial for DUI ( Fitzgerald v. People , 2017 BL 124362, Colo., No. 15SC340, 4/17/17 ).
And it held that accurately informing a defendant of statutorily expressed consent wasn’t coercion rendering a blood test involuntary ( People v. Simpson , 2017 BL 124363, Colo., No. 15SA330, 4/17/17 ).
All three cases interpreted Colorado’s Expressed Consent Statute.
The statute requires drivers in the state to take any blood or breath test for the purpose of determining impairment and deems all drivers in the state to have consented to the tests.
Oliver Benton Hyde was found unconscious in his vehicle after being involved in a single-vehicle collision. Police suspected Hyde of DUI, and after being transported to a hospital, a sample of his blood was taken to establish his blood-alcohol concentration. Hyde sought to suppress the blood test, because it was a warrantless search in violation of the Fourth Amendment.
In Birchfield v. North Dakota, the U.S. Supreme Court ruled that though breath tests were constitutionally permissible without a warrant, blood tests were more intrusive, and thus typically required a warrant. It also ruled that a driver couldn’t be criminally penalized for refusing a warrantless blood test.
But Birchfield “endorsed the use of implied consent laws like Colorado’s” that only impose civil, as opposed to criminal, penalties on those who refuse to comply, the Colorado Supreme Court said.
“By driving in Colorado, Hyde consented to the terms of the Expressed Consent Statute, including its requirement that he submit to blood-alcohol testing under the circumstances present here,” the court said. “Hyde’s statutory consent satisfied the consent exception to the Fourth Amendment warrant requirement,” it said.
Daniel Fitzgerald was arrested for suspected DUI but refused to take a breath or blood test to determine his BAC. Before his trial, Fitzgerald filed a motion to prevent the prosecution from using evidence of his refusal against him.
Introducing this evidence would penalize him for exercising his Fourth Amendment right to be free from warrantless searches, he argued.
But his refusal wasn’t a search, the court said.
Because there was no search, “anything short of criminalizing refusal does not impermissibly burden or penalize a defendant’s Fourth Amendment right to be free from an unreasonable warrantless search,” the state court concluded.
William Paul Simpson was advised of the statute after being questioned for a possible DUI. Following the explanation, a blood test was administered. Based on the language used in the advisement, Simpson argued that the blood draw was involuntary.
But Simpson had consented to the blood draw under the terms of the expressed consent statute, the court held.
“Because Simpson never revoked that consent, the blood draw was constitutional,” the court concluded
Justice William W. Hood III authored all three opinions.
Justices Monica M. Marquez, Brian D. Boatright and Richard L. Gabriel joined in all three opinions.
Justice Allison H. Eid concurred, joined by Chief Justice Nancy E. Rice and Justice Nathan B. Coats, in Hyde to explain why the majority opinion was consistent with Birchfield. All three also concurred in judgment only in Fitzgerald and Simpson.
Gregory C. Graf, Greenwood Village, Colo., represented Hyde. Chris Carrington, of Richards Carrington LLC, Denver, and Chip Schoneberger, of Foster Graham Milstein & Calisher LLP, Denver, represented Fitzgerald. The Colorado Public Defender’s Office, Centennial, Colo., represented Simpson.
The District Attorney’s Office in Centennial, Colo. represented the state in all three cases.
To contact the reporter on this story: Robert Wilhelm in Washington at firstname.lastname@example.org
To contact the editor responsible for this story: C. Reilly Larson at email@example.com
Full text of Hyde at http://www.bloomberglaw.com/public/document/People_v_Hyde_2017_CO_24_Court_Opinion.
Full text of Fitzgerald at http://www.bloomberglaw.com/public/document/Fitzgerald_v_People_2017_CO_26_Court_Opinion.
Full text of Simpson at http://www.bloomberglaw.com/public/document/People_v_Simpson_2017_CO_25_Court_Opinion.
Copyright © 2017 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)