The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY January 4, 2024
2024COA1
No. 22CA1409, People v. Young — — Regulation of Vehicles and Traffic — Alcohol and Drug Offenses — Expressed Consent for the Taking of Blood, Breath, Urine, or Saliva — Extraordinary Circumstances
In this felony DUI case, a division of the court of appeals
considers, as a matter of first impression, whether the COVID-19
pandemic constitutes an “extraordinary circumstance[],” under
section 42-4-1301.1(2)(a.5)(I), C.R.S. 2023, sufficient to warrant a
law enforcement officer to require a defendant to submit to a blood
test in lieu of a breath test. The division concludes that it does and
affirms the judgment. COLORADO COURT OF APPEALS 2024COA1
Court of Appeals No. 22CA1409 Arapahoe County District Court No. 20CR2429 Honorable Joseph Whitfield, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Shannon Christopher Young,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division V Opinion by JUDGE FREYRE Yun and Kuhn, JJ., concur
Announced January 4, 2024
Philip J. Weiser, Attorney General, Josiah Beamish, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Colorado Legal Defense Group, Alan Davis, Denver, Colorado, for Defendant- Appellant ¶1 Defendant, Shannon Christopher Young, appeals his driving
under the influence (DUI) – fourth or subsequent offense conviction,
and contending that the trial court erroneously denied his motion to
suppress his field sobriety test results as involuntary and his
refusal to submit to a blood alcohol content (BAC) test. As a matter
of first impression, we are asked to decide whether the COVID-19
pandemic constitutes an “extraordinary circumstance[],” under
section 42-4-1301.1(2)(a.5)(I), C.R.S. 2023, sufficient to warrant a
law enforcement officer to require a driver to submit to a blood test
in lieu of a breath test. We conclude that it does and affirm the
judgment.
I. Background
¶2 In June 2020, Young rear-ended another car stopped at a red
light. Two witnesses to the accident, the driver of the car Young
rear-ended and an ambulance driver who was also stopped at the
red light, told the responding officer that they smelled alcohol on
Young’s breath when they approached him following the accident.
The responding officer then requested that a DUI enforcement
officer respond to the scene. Based on Young’s field sobriety test
results and his refusal to submit to a blood draw to determine his
1 BAC, the prosecution charged him with one count of DUI – fourth or
subsequent offense and one count of reckless driving.
¶3 Before trial, Young moved to suppress (1) his field sobriety test
results, asserting that his consent to the tests was involuntary
because he did not know he could refuse to take the tests; and (2)
evidence of his refusal to take a blood test because the DUI officer
failed to offer him a breathalyzer test in violation of the expressed
consent statute, § 42-4-1301.1.
¶4 At the suppression hearing, the DUI officer testified that the
responding officer reported that two witnesses said they smelled
alcohol on Young when they approached him after the accident.
The DUI officer then asked Young twice whether he would be willing
to do field sobriety tests. After the second request, Young
responded, “If I have to.” He followed the officer to a flatter location,
offered to remove his shoes, and never indicated that he did not
wish to perform the tests.
¶5 The DUI officer could not recall whether she told Young that
he did not have to complete the field sobriety tests, but she recalled
advising him that the tests were voluntary. She further testified
that her tone with Young was conversational, not confrontational;
2 she made no promises or threats to induce Young’s cooperation;
she did not pull her weapon or otherwise force Young to complete
the field sobriety tests; and the entire interaction lasted about
fifteen minutes.
¶6 After Young failed the field sobriety tests, the officer arrested
him, explained the expressed consent statute, and offered a blood
test to determine his BAC. She explained that this offense occurred
during the COVID-19 pandemic when face masks were required in
public. During this stage of the pandemic, the Aurora Police
Department (APD) enacted a policy, after consultation with a
physician, to only offer blood draws to determine BAC because the
risk of transmitting COVID-19 during breathalyzer testing was too
high. She testified that she explained the APD’s policy to Young
when she asked him to take the blood test. Instead of directly
responding to her request for a blood test, Young asked for an
attorney and never requested a breath test. The officer documented
Young’s response as a refusal.
¶7 The trial court denied Young’s suppression motions. The
court first found that Young voluntarily submitted to the field
sobriety tests because the DUI officer told him they were voluntary,
3 she made no show of force to induce his cooperation, and he agreed
to do them. The court noted that while the officer never directly
informed Young that he could refuse the tests, the advisement was
sufficient. It was evident from Young’s actions that he consented to
the tests, considering the totality of the circumstances.
¶8 Concerning the refusal, the trial court found that, given the
circumstances of the COVID-19 pandemic, the APD had valid
grounds to establish procedures limiting the availability of
breathalyzer tests under the “extraordinary circumstances”
provision of section 42-4-1301.1(2)(a.5). Thus, the officer’s
advisement limiting Young’s testing options was consistent with the
statute and did not warrant suppression of the evidence of his
refusal.
II. Voluntariness of Field Sobriety Test Results
¶9 Young contends that the trial court erroneously denied his
motion to suppress the field sobriety test results because the DUI
officer never informed him that he could refuse the tests, and
therefore, his consent was involuntary. We disagree.
4 A. Standard of Review and Applicable Law
¶ 10 A trial court’s suppression order presents a mixed question of
fact and law. People v. Munoz-Gutierrez, 2015 CO 9, ¶ 14. We defer
to the trial court’s factual findings if they are supported by the
record, but we assess the legal effect of those facts de novo. Id. We
also review a question of statutory interpretation de novo. People v.
Raider, 2022 CO 40, ¶ 8.
¶ 11 The United States and Colorado Constitutions protect persons
against unreasonable searches and seizures. U.S. Const. amend.
IV; Colo. Const. art. II, § 7. Field sobriety testing constitutes a full
“search” in the constitutional sense of that term and can be
administered when probable cause exists to arrest the driver for
driving under the influence or when the driver voluntarily consents
to perform the tests. People v. Carlson, 677 P.2d 310, 317-18 (Colo.
1984), abrogated on other grounds as recognized in People v.
Chavez-Barragan, 2016 CO 66, ¶ 33; see also People v. Licea, 918
P.2d 1109, 1112 (Colo. 1996) (“A warrantless search may be
constitutionally justified by a consent to search, but only if that
consent is voluntarily given.”).
5 ¶ 12 When assessing whether a person’s consent was voluntary,
the court must apply an objective test “that takes into account the
totality of the circumstances and determines whether the defendant
could reasonably have construed the police conduct to be coercive.”
People v. Berdahl, 2019 CO 29, ¶ 23 (citing Munoz-Gutierrez, ¶ 23).
Consequently, we consider the environment in which the defendant
allegedly consented, the police officer’s actions during the
encounter, and the defendant’s perceptions and characteristics,
such as age, education, and knowledge. Chavez-Barragan, ¶ 38.
¶ 13 “The essential consideration in determining voluntariness of a
consent to search is the impact of overbearing, coercive, or
deceptive police conduct on a person with the knowledge and
particular characteristics of the defendant.” People v. Magallanes-
Aragon, 948 P.2d 528, 533 (Colo. 1997), abrogated on other grounds
as recognized in Chavez-Barragan, ¶ 33. Consent is involuntary
when it results from duress or coercion, whether express or implied,
or from any other form of undue influence exercised by the police
against the defendant. Berdahl, ¶ 21. Undue influence can include
promises, threats, and intrusive or threatening police conduct.
Munoz-Gutierrez, ¶ 17.
6 ¶ 14 While section 16-3-310(1)(b)(II), C.R.S. 2023, provides that
police officers must inform suspects that they have the right to
refuse to give consent to a search, an officer’s failure to give this
advisement is only one factor in determining the voluntariness of
consent. § 16-3-310(3); see also Munoz-Gutierrez, ¶ 20 (“[V]oluntary
consent need not be given with knowledge of the right to
refuse . . . .”).
B. Analysis
¶ 15 We begin by noting that Young does not assert that the police
coerced him into performing the field sobriety tests. Rather, he
contends that his consent was involuntary because the officer never
told him he could refuse to do the tests. We disagree for two
reasons.
¶ 16 First, the trial court credited the DUI officer’s testimony that
she twice advised Young that the tests were voluntary and that he
completed them of his own volition. Indeed, Young does not dispute
following the officer to a flatter location to perform the tests or
offering to remove his shoes. We must defer to the court’s finding.
See Munoz-Gutierrez, ¶ 14.
7 ¶ 17 Second, the record contains no evidence that the officer did
anything to overbear Young’s will, nor does it show that the sobriety
tests were the product of duress, coercion, deception, or undue
influence by the officer. And even if Young believed he had no
choice but to complete the sobriety tests, the officer did not cause
that perception. See Berdahl, ¶ 27. Consequently, the totality of
the circumstances in the record shows that Young voluntarily
consented to taking the field sobriety tests and that the trial court
did not err by denying his motion to suppress the test results. See
Chavez-Barragan, ¶ 38.
III. COVID-19 Pandemic Constitutes an Extraordinary Circumstance
¶ 18 Young next contends that the trial court erred by denying his
motion to suppress evidence of his refusal to take a blood test to
determine his BAC. He reasons that the APD’s policy limiting BAC
testing to blood tests does not fall within the extraordinary
circumstances exception in the expressed consent statute and,
therefore, that the officer’s failure to provide him a testing choice
violated the statute. We disagree.
8 A. Expressed Consent Statute
¶ 19 Section 42-4-1301.1 provides that “[a]ny person who drives
any motor vehicle upon the streets and highways . . . throughout
this state shall be deemed to have expressed such person’s consent
to the provisions of this section.” § 42-4-1301.1(1); see also People
v. Null, 233 P.3d 670, 678 (Colo. 2010).
¶ 20 Under the statute, a police officer with probable cause to
believe that a driver has committed an alcohol-related offense may
require the driver to take and complete either a blood test or a
breath test to determine the person’s BAC. § 42-4-1301.1(2)(a)(I). If
a law enforcement officer requests a test under this statute, the
driver “must cooperate with the request such that the sample of
blood or breath can be obtained within two hours of the person’s
driving.” § 42-4-1301.1(2)(a)(III).
¶ 21 Generally, the driver may choose between a blood or breath
test. See § 42-4-1301.1(2)(a)(II). However, a law enforcement officer
may require the driver to submit to a different test if there are
“extraordinary circumstances that prevent the completion of the
test elected by the person.” § 42-4-1301.1(2)(a.5)(I).
9 ¶ 22 Extraordinary circumstances are those that are “beyond the
control of, and not created by, the law enforcement officer who
requests and directs a person to take a blood or breath test . . . or
the law enforcement authority with whom the officer is employed.”
§ 42-4-1301.1(2)(a.5)(IV)(A). Those circumstances include, but are
not limited to, “weather-related delays, high call volume affecting
medical personnel, power outages, malfunctioning breath test
equipment, and other circumstances that preclude the timely
collection and testing of a blood or breath sample by a qualified
person in accordance with law.” § 42-4-1301.1(2)(a.5)(IV)(B). The
statute expressly excludes from extraordinary circumstances such
things as “inconvenience, a busy workload on the part of the law
enforcement officer or law enforcement authority, minor delay that
does not compromise the two-hour test period . . . , or routine
circumstances that are subject to the control of the law
enforcement officer or law enforcement authority.” § 42-4-
1301.1(2)(a.5)(IV)(C).
¶ 23 A person’s failure to “take and complete, and to cooperate in
the completing of, the other test requested by the law enforcement
officer . . . shall be deemed to be a refusal to submit to testing.”
10 § 42-4-1301.1(2)(a.5)(III); see also § 42-2-126(2)(h), C.R.S. 2023
(defining refusal as “refusing to take or complete, or to cooperate in
the completing of, a test of the person’s blood, breath, saliva, or
urine” as required by the expressed consent law).
¶ 24 Young argues that the expressed consent statute required the
DUI officer to provide both testing options and that she could only
invoke the “extraordinary circumstances” provision after he had
selected one of the options, thereby preserving his right to choose.
We are not persuaded.
¶ 25 When interpreting a statute, we first determine whether the
language is plain and unambiguous, giving effect to the express
language of the statute and consistent, harmonious, and sensible
effect to all its parts. Raider, ¶ 9. While we must give effect to the
statute’s plain and ordinary meaning, the legislature’s intention will
prevail over a literal interpretation of the statute that leads to an
absurd result. Id.
¶ 26 When directed by a law enforcement officer to submit to a BAC
test, the expressed consent statute provides a driver with the right
to choose between taking a breath or blood test. § 42-4-
11 1301.1(2)(a)(I). However, that statute does not require an arresting
officer to notify the driver of such a choice. See Evans v. Dep’t of
Revenue, 159 P.3d 769, 771 (Colo. App. 2006). Moreover, the
“extraordinary circumstances” exception generally arises only after
the police officer asks a person to take either a blood or breath test
and that person chooses one of those tests. § 42-4-1301.1(2)(a.5)(I).
But in this case, the extraordinary circumstances themselves
precluded the officer from requesting such an election and required
the officer to “inform [Young] of the extraordinary circumstances
and request and direct [Young] to take the [blood] test.” Id.
¶ 27 We conclude that the extraordinary circumstances exception
was triggered when the DUI officer asked Young to take a blood
test, and he neither requested a breath test nor objected to the
blood draw. See § 42-4-1301.1(2)(a)(I) (providing that if a person
who is at least twenty-one years old “requests that the test be a
blood test, then the test shall be of his or her blood; but, if the
person requests that . . . his or her blood not be drawn, then a
specimen of the person’s breath shall be obtained and tested”).
Because Young never requested a breath test or objected to the
blood draw, the officer’s decision to treat his response as a refusal
12 of the test complied with the statute, even though she did not
provide Young with a choice. See § 42-4-1301.1(2)(a)(II). The officer
told Young he had to take a blood test because the APD had
suspended the use of breathalyzer testing during the COVID-19
pandemic, and we agree with the trial court that the unique
situation posed by COVID-19 constituted an extraordinary
circumstance that justified limiting the BAC testing to only blood
tests.
¶ 28 As noted above, the accident giving rise to the charges in this
case occurred in June 2020. During that time, multiple statewide
COVID-19 restrictions were in place to limit the spread of the virus,
including mask mandates, because the virus was spread primarily
through respiratory droplets from an infected person to others in
close contact. See Colo. Exec. Order No. D 2020 079 (May 25,
2020) (titled “Amending and Extending Executive Order D 2020 044
Safer at Home”), https://perma.cc/VX5J-3CY5.
¶ 29 Further, our supreme court has recognized that COVID-19 is a
highly contagious, potentially deadly illness that triggered a global
pandemic, created an “unparalleled public health crisis,” and
13 substantially impacted the criminal justice system. People v. Lucy,
2020 CO 68, ¶ 1; People v. Hernandez, 2021 CO 45, ¶ 44.
¶ 30 Recognizing that extraordinary circumstances outside the
control of law enforcement could arise making a particular BAC test
unavailable, the expressed consent statute allows a law
enforcement officer who is interacting with a suspect to determine
in the first instance whether extraordinary circumstances exist.
§ 42-4-1301.1(2)(a.5)(I). The statute’s definition of “extraordinary
circumstances” is broad, encompassing “circumstances beyond the
control of, and not created by, the law enforcement officer who
requests and directs a person to take a blood or breath test . . . or
the law enforcement authority with whom the officer is employed.”
§ 42-4-1301.1(2)(a.5)(IV)(A). Indeed, the statute only precludes a
law enforcement officer or agency from creating the extraordinary
circumstances or relying on circumstances within their control.
See § 42-4-1301.1(2)(a.5)(IV)(C).
¶ 31 Young does not assert that law enforcement created the
extraordinary circumstances, nor does he dispute the DUI officer’s
explanation that, at the time of the accident, the APD had instituted
a policy providing that BACs would be determined only through
14 blood tests and not breath tests, due to the risks of COVID-19
transmission in close quarters. The officer explained these
circumstances to Young and asked him to take the blood test as
required by the statute. See § 42-4-1301.1(2)(a.5)(I).
¶ 32 Considering the enormous toll the COVID-19 pandemic had on
our society, we conclude that it constituted an exceptional
circumstance within the scope of the expressed consent statute.
The COVID-19 pandemic was not created by, or within the control
of, the DUI officer or the APD, and the APD’s policy formally
recognized an extraordinary circumstance — the COVID-19
pandemic — that was already beyond its control.
¶ 33 Therefore, we conclude that the APD’s policy was a valid
response to the extraordinary circumstance of the COVID-19
pandemic, that the DUI officer did not violate the statute when she
asked Young take a blood test after explaining the extraordinary
circumstances, and that Young’s failure to complete the blood test
constituted a refusal. See § 42-4-1301.1(2)(a.5)(I), (III).
Accordingly, we discern no error in the court’s denial of Young’s
motion to suppress.
15 IV. Disposition
¶ 34 The judgment is affirmed.
JUDGE YUN and JUDGE KUHN concur.