Colorado Doesn’t Require Warrant for Blood Draw in DUI Cases

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By Robert Wilhelm

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.

Unconscious Blood Draw

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.

Refusal as Evidence of Guilt

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.

Statute Not Coercive

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

To contact the editor responsible for this story: C. Reilly Larson at

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