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 7, 2021
2021COA1
No. 17CA1896, People v. Raider — Regulation of Vehicles and Traffic — Alcohol and Drug Offenses — Expressed Consent for the Taking of Blood, Breath, Urine, or Saliva
A division of the court of appeals considers an issue of first
impression under the Expressed Consent Statute, § 42-4-1301.1,
C.R.S. 2020. Under this statute, anyone who drives a motor vehicle
in the state is deemed to have consented to take a blood or breath
test when requested by a law enforcement officer having probable
cause to believe the driver is under the influence of alcohol, drugs,
or both. The driver may refuse to take such a test, but is subject to
penalties for that refusal. Even if a driver refuses testing, however,
a law enforcement officer may require the driver to submit to a
blood test if the officer has probable cause to believe the driver has committed criminally negligent homicide, vehicular homicide,
assault in the third degree, or vehicular assault.
The division determines, as a matter of first impression, that if
a driver refuses testing and an officer lacks probable cause that the
driver has committed one of the four enumerated offenses, the
officer may not require the driver to submit to testing by obtaining a
search warrant. The division therefore determines that the forced
test of the defendant, pursuant to a warrant but without probable
cause that the defendant had committed one of the enumerated
offenses, was illegal. The division also determines that the
appropriate remedy for the illegal forced test is suppression of the
test results and remands for a new trial. COLORADO COURT OF APPEALS 2021COA1
Court of Appeals No. 17CA1896 Larimer County District Court No. 17CR1044 Honorable Gregory M. Lammons, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Charles Raider, Jr.,
Defendant-Appellant.
JUDGMENT REVERSED AND CASE REMANDED WITH DIRECTIONS
Division II Opinion by JUDGE GOMEZ Román and Fox, JJ., concur
Announced January 7, 2021
Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Laura E. H. Harvell, Alternate Defense Counsel, Grand Junction, Colorado, for Defendant-Appellant ¶1 Anyone who drives a motor vehicle in Colorado is deemed to
have consented to the provisions of the Expressed Consent Statute.
§ 42-4-1301.1(1), C.R.S. 2020. Those provisions include consent to
take a blood or breath test when requested by a law enforcement
officer having probable cause to believe the driver is under the
influence of alcohol, drugs, or both. § 42-4-1301.1(2)(a)(I), (b)(I).
If the driver refuses such testing, that refusal is admissible into
evidence at a trial for driving under the influence (DUI) or driving
while ability impaired (DWAI). § 42-4-1301(6)(d), C.R.S. 2020.
A driver’s refusal will also result in revocation of his or her driver’s
license for at least a year — and longer for successive instances of
refusal. § 42-2-126(2)(h), (3)(c)(I), (4)(b)(I), C.R.S. 2020.
¶2 But the Expressed Consent Statute permits a law enforcement
officer to force a driver to take a blood test, notwithstanding the
driver’s refusal, if the officer has probable cause to believe the driver
has committed one of four listed offenses. The statute provides that
[n]o law enforcement officer shall physically restrain any person for the purpose of obtaining a specimen of such person’s blood, breath, saliva, or urine for testing except when the officer has probable cause to believe that the person has committed criminally negligent homicide pursuant to section 18-3-105, C.R.S.,
1 vehicular homicide pursuant to section 18-3-106(1)(b), C.R.S., assault in the third degree pursuant to section 18-3-204, C.R.S., or vehicular assault pursuant to section 18-3-205(1)(b), C.R.S., and the person is refusing to take or to complete, or to cooperate in the completing of, any test or tests, then, in such event, the law enforcement officer may require a blood test.
§ 42-4-1301.1(3) (emphases added). Evidence acquired through
such a forced blood test is admissible in a prosecution for any of
the four listed offenses or for DUI, DUI per se, DWAI, or underage
drinking and driving. § 42-4-1301(6)(e).
¶3 This case presents an issue of first impression under these
provisions: whether the Expressed Consent Statute provides the
exclusive list of circumstances under which officers may obtain
forced blood draws of DUI or DWAI suspects, or whether officers
may obtain forced blood draws in other circumstances so long as
they secure a warrant. Defendant, Charles Raider, Jr., contends
that the statute permits officers to require testing of DUI or DWAI
suspects in only four specified circumstances, and obtaining a
warrant is not one of those circumstances. The People, conversely,
contend that the statute provides for searches under the consent
exception to the Fourth Amendment’s warrant requirement and,
2 thus, that the statute’s limitations do not apply when an officer has
secured a warrant authorizing a test.
¶4 We conclude that under the plain language of the Expressed
Consent Statute, law enforcement officers may not force a driver
suspected of DUI or DWAI to take a blood test except in the four
specified circumstances — that is, when the officer has probable
cause to believe the driver has committed criminally negligent
homicide, vehicular homicide, third degree assault, or vehicular
assault — even if the officers obtain a warrant authorizing the test.
We also conclude that the trial court erred by admitting evidence of
the results of Raider’s illegal forced blood test at his trial for DUI
and obstructing a peace officer and that the error was not harmless.
Accordingly, we reverse the judgment of conviction and remand for
a new trial on both charges.
I. Background
¶5 Officer Jason Lang of the Fort Collins Police Department
responded to a call one evening about an unauthorized car in a
handicapped parking space. When he approached the car, Raider
was sitting in the driver’s seat with the keys in the ignition and the
engine running. Upon interacting with Raider, Officer Lang noticed
3 that his eyes were bloodshot and watery, his speech was slurred,
and his breath smelled of alcohol. Raider produced an expired
handicapped placard, explained that he had come to pick up a
friend, and, when questioned, denied having consumed any alcohol
or taken any drugs. Officer Lang asked Raider to perform some
roadside maneuvers, but he declined.
¶6 Officer Lang advised Raider that he was under arrest for DUI.
Both Officer Lang and a second officer to arrive at the scene, Officer
Kenneth Koski, advised Raider about the Expressed Consent
Statute. Raider initially didn’t provide a definitive response, but
ultimately he refused any testing.
¶7 After learning that Raider had several prior DUI convictions,
Officer Koski applied for a search warrant to conduct a blood draw.1
Meanwhile, Officer Lang transported Raider to the hospital. After
about an hour, the officers received a signed warrant authorizing
them to draw a sample of Raider’s blood for testing and to use
1 The form Officer Koski used in seeking a warrant contains check boxes that partially track the Expressed Consent Statute (indicating a blood sample would be material evidence in prosecuting a charge of vehicular assault or vehicular homicide) but that also include felony DUI (indicating a blood sample would be material evidence in prosecuting a DUI offense with three or more prior convictions).
4 reasonable and necessary force to obtain it. Because Raider
refused to cooperate with the blood draw, hospital personnel put
him in four-point leather restraints and several officers held him
down while a technician drew his blood. Testing revealed that his
blood had an alcohol content of .188 and contained the active
components of marijuana.
¶8 The prosecution charged Raider with felony DUI (three or more
prior convictions) and obstructing a peace officer. Before trial,
Raider sought to suppress evidence from the forced blood draw.
The trial court denied the request, concluding that the Expressed
Consent Statute doesn’t apply where, as here, a blood draw is
authorized by a warrant. After a trial at which the prosecution
presented evidence of Raider’s blood test results and refusal to
cooperate with the blood draw, the jury found Raider guilty of both
charges. The court found Raider had five prior DUI convictions,
making his conviction a felony, and sentenced him accordingly.2
2Raider doesn’t challenge the trial court’s resolution of the issue of his prior convictions. See Linnebur v. People, 2020 CO 79M. At any rate, our disposition of his appeal renders that issue moot.
5 II. Analysis
¶9 We first consider Raider’s argument that the forced blood draw
violated the Expressed Consent Statute. Because we conclude that
it did, we also consider what is the appropriate remedy for the
violation (we conclude that the test results must be suppressed)
and whether the erroneous admission of the test results requires
reversal of Raider’s convictions (we conclude that it does).
A. Standard of Review
¶ 10 Our review of the trial court’s ruling on suppression issues
presents a mixed question of law and fact. People v. Simpson, 2017
CO 25, ¶ 12. We defer to the trial court’s findings of fact if they are
supported by the record, but we assess the legal effect of those facts
de novo. Id. We also review de novo the trial court’s interpretation
of the Expressed Consent Statute. See People v. Smith, 254 P.3d
1158, 1161 (Colo. 2011).
¶ 11 We consider whether preserved nonconstitutional errors
require reversal under the harmless error standard. Hagos v.
People, 2012 CO 63, ¶ 12; see also Crim. P. 52(a). Under this
standard, we reverse only if an error affects the parties’ substantial
rights — that is, if it “substantially influenced the verdict or affected
6 the fairness of the trial proceedings.” Hagos, ¶ 12 (quoting Tevlin v.
People, 715 P.2d 338, 342 (Colo. 1986)).
B. The Expressed Consent Statute
¶ 12 We first consider whether the Expressed Consent Statute
provides the exclusive list of circumstances under which officers
may obtain forced blood draws of DUI or DWAI suspects, or whether
officers may obtain forced blood draws in other circumstances so
long as they secure a warrant.
¶ 13 In construing a statute, our primary purpose is to ascertain
and give effect to the General Assembly’s intent. McCoy v. People,
2019 CO 44, ¶ 37. To do so, we focus primarily on the language of
the statute, recognizing that “‘a court should always turn first’ to
the plain meaning rule ‘before all other[ ]’ rules because ‘courts
must presume that a legislature says in a statute what it means
and means in a statute what it says there.’” Cowen v. People, 2018
CO 96, ¶ 12 (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249,
253-54 (1992)). Thus, we give statutory words and phrases their
plain and ordinary meanings, read those words and phrases in
context, and construe them according to the rules of grammar and
common usage. McCoy, ¶ 37. We also endeavor to effectuate the
7 purpose of the legislative scheme, reading that scheme as a whole,
giving consistent effect to all of its parts, and avoiding constructions
that would render any words or phrases superfluous or lead to
illogical or absurd results. Id. at ¶ 38.
¶ 14 If the statutory language is unambiguous, we effectuate its
plain meaning and look no further. Carrera v. People, 2019 CO 83,
¶ 18. But if the language is ambiguous, in that it is susceptible of
multiple reasonable interpretations, we may consider other tools of
statutory construction. Id.
¶ 15 The parties agree that the Expressed Consent Statute does not
refer to warrants. But “[a] statute’s silence on an issue does not
necessarily mean that the statute is ambiguous.” Hansen v.
Barron’s Oilfield Serv., Inc., 2018 COA 132, ¶ 10; see also In re
2000-2001 Dist. Grand Jury, 97 P.3d 921, 924-25 (Colo. 2004)
(statutory silence on an issue didn’t create an ambiguity). In fact, it
may be prudent to refrain from finding ambiguity in silence, as
“a statute’s silence on a particular issue easily could be used to
manufacture ambiguity where none exists in practically any case
involving statutory construction.” Robbins v. People, 107 P.3d 384,
393 (Colo. 2005) (Rice, J., dissenting).
8 ¶ 16 Applying these principles, we conclude that the Expressed
Consent Statute unambiguously prohibits forced testing of DUI or
DWAI suspects in any circumstances other than those listed in the
statute. This means that, even if officers obtain a warrant, if they
lack probable cause to believe a driver suspected of DUI or DWAI
has committed one of the four listed offenses (criminally negligent
homicide, vehicular homicide, third degree assault, or vehicular
assault), they cannot force a blood draw.
¶ 17 The plain language of the statute — which provides that “[n]o
law enforcement officer shall physically restrain any person” for the
purpose of obtaining a specimen for testing “except” in four specific
circumstances — supports this interpretation. § 42-4-1301.1(3).
This language is clear and unequivocal. The use of the term
“except” followed by four specific exceptions indicates that the only
circumstances in which officers may force testing of DUI or DWAI
suspects are those listed in the statute. See Cain v. People, 2014
CO 49, ¶ 13 (interpreting “the General Assembly’s inclusion of a
single, specific, narrow exception to mean that the General
Assembly intended that there be no other exceptions to the rule”
generally set forth); Riley v. People, 104 P.3d 218, 221 (Colo. 2004)
9 (“The presence of one exception is generally construed as excluding
other exceptions.”).
¶ 18 If the General Assembly had intended to also except searches
conducted pursuant to a warrant, it could have expressly said so.
Indeed, in another statute, the General Assembly did just that: in a
statute governing the blood testing of assault suspects to check for
communicable diseases, one subsection allows law enforcement
officers to ask a suspect to voluntarily consent to testing, while
another allows officers to seek a warrant requiring testing under
certain circumstances if the suspect refuses to consent to it.
§ 16-3-303.8(2), (3)(a), C.R.S. 2020.
¶ 19 Additionally, several other states have included provisions in
their expressed or implied consent statutes explicitly excepting or
authorizing searches conducted pursuant to a warrant. See, e.g.,
Ariz. Rev. Stat. Ann. § 28-1321(D)(1) (2020) (“If a person . . . refuses
to submit to the test designated by the law enforcement agency . . .
[t]he test shall not be given, except as provided [by statute] or
pursuant to a search warrant.”); Wash. Rev. Code Ann.
§ 46.20.308(4) (West 2020) (“Nothing in [the statute] precludes a
law enforcement officer from obtaining a person’s blood to test for
10 alcohol, marijuana, or any drug, pursuant to a search
warrant . . . .”); Wyo. Stat. Ann. § 31-6-102(d) (West 2020) (“If a
person under arrest refuses upon the request of a peace officer to
submit to a chemical test . . . , none shall be given except in cases
where serious bodily injury or death has resulted or upon issuance
of a search warrant.”).
¶ 20 Had the General Assembly intended a similar result here, it
could have included similar language. But it did not. This suggests
that warrants do not provide an additional exception under the
Expressed Consent Statute. See, e.g., State v. Hitchens, 294
N.W.2d 686, 688 (Iowa 1980) (concluding that a warrant couldn’t be
used to circumvent Iowa’s implied consent statute as the legislature
hadn’t included any “qualifying language” to that effect); State v.
Beyor, 641 A.2d 344, 345 (Vt. 1993) (applying similar reasoning to
reach the same conclusion under Vermont’s implied consent
statute).
¶ 21 By allowing forced testing where there is probable cause to
believe a driver suspected of DUI or DWAI has committed criminally
negligent homicide, vehicular homicide, third degree assault, or
vehicular assault, but not in any other circumstances, the
11 Expressed Consent Statute reflects a legislative balance between
competing concerns.
¶ 22 On the one hand, Colorado’s Expressed Consent Statute, in
conjunction with the license revocation provisions, “protect[s] the
general public from drunk drivers.” Eggleston v. Dep’t of Revenue,
895 P.2d 1169, 1171 (Colo. App. 1995); see also Turbyne v. People,
151 P.3d 563, 569 (Colo. 2007) (one objective of the Expressed
Consent Statute is to “obtain scientific evidence of the amount of
alcohol in the bloodstream in order to curb drunk driving through
prosecution for that offense” (quoting Zahtila v. Motor Vehicle Div.,
39 Colo. App. 8, 10, 560 P.2d 847, 849 (1977))); § 42-2-126(1)(a)
(one purpose of the revocation provisions is to “provide safety for all
persons using the highways of this state by quickly revoking the
driver’s license of . . . any person who has refused to submit to an
analysis as required by section 42-4-1301.1”).
¶ 23 But, on the other hand, “[b]lood draws are ‘significant bodily
intrusions,’” as they “require piercing the skin,” “extract a part of
the subject’s body,” and “place[] in the hands of law enforcement
authorities a sample that can be preserved and from which it is
possible to extract information beyond a simple [blood alcohol
12 concentration] reading.” Birchfield v. North Dakota, 579 U.S. ___,
___, 136 S. Ct. 2160, 2178 (2016) (citations omitted).
¶ 24 Limiting the forced testing of DUI and DWAI suspects also
minimizes potentially violent confrontations between law
enforcement officers and drivers who are unwilling to submit to a
test. See, e.g., Hitchens, 294 N.W.2d at 688 (allowing DUI suspects
to refuse testing “avoid[s] physical confrontations between the police
and motor vehicle drivers”); State v. DiStefano, 764 A.2d 1156, 1163
(R.I. 2000) (testing DUI suspects only with their consent “prevent[s]
a violent confrontation between an arresting officer and a suspect
unwilling to submit to a test”) (citation omitted); see also Combs v.
Commonwealth, 965 S.W.2d 161, 164 (Ky. 1998) (“In a DUI
situation, the suspect may be highly intoxicated[,] which increases
the risk of physical confrontation with police . . . .”).
¶ 25 Several states’ implied consent statutes strike this balance like
Colorado’s statute does — by allowing forced tests in limited
circumstances but otherwise relying on the threat of penalties to
persuade drivers to cooperate with testing. See, e.g., Birchfield, 579
U.S. at ___, 136 S. Ct. at 2184 (noting that “it is possible to extract
a blood sample from a subject who forcibly resists” but that “many
13 States reasonably prefer not to take this step,” and citing as an
example North Dakota, which “generally opposes this practice
because of the risk of dangerous altercations between police officers
and arrestees in rural areas where the arresting officer may not
have backup” and thus allows forced testing only where an accident
results in death or serious injury) (citations omitted); Hitchens, 294
N.W.2d at 688 (explaining that Iowa’s statute “recognizes a driver’s
‘right’ to refuse testing” but “extracts a penalty for exercising the
right,” in an effort to “motivate[] drivers to take the test . . . without
resorting to physical compulsion”).
¶ 26 In fact, several of those states whose implied consent laws
expressly address warrants limit warrant-based testing to specific,
enumerated circumstances. See, e.g., Iowa Code Ann. § 321J.10(1)
(West 2020) (only if a traffic accident has resulted in death or
personal injury reasonably likely to cause death); Ky. Rev. Stat.
Ann. § 189A.105(2)(b) (West 2020) (only if a person is killed or
suffers physical injury as a result of the incident); N.M. Stat. Ann.
§ 66-8-111(A) (West 2020) (only with probable cause to believe the
driver caused death or great bodily injury to another or committed a
felony while under the influence of alcohol or drugs); R.I. Gen. Laws
14 Ann. § 31-27-2.9(a) (West 2020) (only with probable cause to believe
the driver committed one of four listed offenses); Vt. Stat. Ann. tit.
23, § 1202(d)(6)(B), (f) (West 2020) (only if an accident results in
death or serious bodily injury to another).
¶ 27 Ultimately, the weighing of competing interests is a task for
the General Assembly, not for the courts. See Burnett v. State Dep’t
of Nat. Res., 2015 CO 19, ¶ 13 (“The balance between . . . two
competing interests ‘is for the legislature alone to reach.’” (quoting
Medina v. State, 35 P.3d 443, 453 (Colo. 2001))). Here, the General
Assembly has balanced the interests by providing for temporary
revocation of the license of a driver who refuses testing; by allowing
evidence of the refusal to be admitted at a trial for DUI or DWAI;
and by authorizing officers to compel blood testing, regardless of a
driver’s refusal, if the officer has probable cause to believe the driver
has committed criminally negligent homicide, vehicular homicide,
third degree assault, or vehicular assault. § 42-2-126(2)(h), (3)(c)(I);
§ 42-4-1301(6)(d); § 42-4-1301.1(3). We cannot upset that balance
by adding additional exceptions not provided in the statute. See
Miller v. City & Cnty. of Denver, 2013 COA 78, ¶ 22 (“When a statute
announces a general rule and makes no exception to that rule, a
15 court is ordinarily not authorized to create an exception or add a
qualifying provision not intended by the lawmakers.” (quoting 1A
Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory
Construction § 20:22 (7th ed. 2007))).
¶ 28 We therefore reject the People’s argument that the
interpretation we are adopting treats suspected drunk drivers better
than other suspected offenders, who may be subject to search
warrants authorizing blood draws. The General Assembly has
decided that, in the case of someone who is suspected of driving
under the influence of alcohol or drugs but is not suspected of one
of the four listed offenses, the driver may be motivated to cooperate
with testing by threatened punishments but may not be forced to
undergo such testing. See Hitchens, 294 N.W.2d at 688 (rejecting a
similar argument where “the statute does not simply expand the
rights of an allegedly drunken driver, it also extracts a price from
the driver for recognizing the power to refuse testing”).
¶ 29 We also reject the People’s argument that the Expressed
Consent Statute provides for searches under the consent exception
to the Fourth Amendment’s warrant requirement and thus has no
application where a warrant is issued. As explained previously, the
16 statutory language is unequivocal and makes no reference to or
exception for warrants. And while the statute assumes that drivers
impliedly consent to its provisions by driving in the state, it also
assumes that drivers may revoke their consent. See Simpson, ¶ 21
n.1 (recognizing that drivers may “revoke[]” their consent to testing);
People v. Hyde, 2017 CO 24, ¶ 24 n.3 (same). For that revocation of
consent — and the punishments that go with it — to mean
anything, officers cannot override it by obtaining a warrant.
¶ 30 It is also not entirely accurate to view the Expressed Consent
Statute as falling within an exception to the warrant requirement.
Although the statute is based in part on a notion of implied
consent, it still doesn’t abrogate constitutional requirements. Thus,
for instance, if drivers revoke their implied consent to testing,
warrants still may be required. See Missouri v. McNeely, 569 U.S.
141, 156 (2013) (“[W]hile the natural dissipation of alcohol in the
blood may support a finding of exigency in a specific case, . . . it
does not do so categorically. Whether a warrantless blood test of a
drunk-driving suspect is reasonable must be determined case by
case based on the totality of the circumstances.”); People v.
Schaufele, 2014 CO 43, ¶¶ 28, 42 (plurality opinion) (recognizing
17 that even where the Expressed Consent Statute authorizes forced
blood draws on drivers who revoke their consent, a warrant may be
required absent exigent circumstances).
¶ 31 Therefore, we conclude that law enforcement officers cannot
use a warrant to circumvent the Expressed Consent Statute, which
limits the circumstances in which DUI or DWAI suspects may be
forced to undergo blood testing. And because the officers in this
case had no probable cause to believe Raider had committed one of
the four offenses listed in the statute, their forced blood draw,
though conducted pursuant to a warrant, violated the statute.
C. Remedy for Noncompliance with the Statute
¶ 32 We next consider the appropriate remedy for the statutory
violation. Raider seeks dismissal of the criminal charges but argues
in the alternative for suppression of the illegally obtained evidence.
The People, however, contend that suppression is not an available
remedy in the absence of a constitutional violation and that
dismissal is not appropriate under the circumstances of this case.
¶ 33 Trial courts ordinarily have discretion to fashion appropriate
remedies for violations of the Expressed Consent Statute. People v.
Null, 233 P.3d 670, 681 (Colo. 2010); Turbyne, 151 P.3d at 569.
18 But where the trial court doesn’t decide the issue of remedy, or
where an appellate court concludes that the trial court abused its
discretion in its choice of remedy, the appellate court can decide the
issue. See Turbyne, 151 P.3d at 570-73; Riley, 104 P.3d at 222.
¶ 34 Here, the trial court didn’t consider the appropriate remedy
since it found no statutory violation had occurred. Considering the
relevant facts, which are not in dispute, we conclude that
suppression of the illegally obtained test results is warranted but
dismissal of the charges is not.
¶ 35 It is true, as the People point out, that our supreme court has
recognized that “[s]uppression of evidence is generally reserved to
remedy violations of constitutional rights, and is not used to remedy
statutory violations.” People v. Clayton, 207 P.3d 831, 838 (Colo.
2009). Nonetheless, in the context of the Expressed Consent
Statute, the supreme court has held that “suppression of evidence
may be appropriate” as a sanction “to remedy improper police
conduct.” Turbyne, 151 P.3d at 570. It also has upheld the
suppression of evidence due to violation of the statute, even where
there was no alleged constitutional violation. See Null, 233 P.3d at
681-82 (affirming suppression of a driver’s refusal to take a
19 particular test where the officer failed to provide the driver with the
type of test he chose, as required by the statute); Turbyne, 151 P.3d
at 572 (ordering suppression of test results where an officer coerced
a driver to consent to a breath test when the blood test the driver
had selected was unavailable); see also People v. Maclaren, 251 P.3d
578, 583 (Colo. App. 2010) (“[T]rial courts . . . have broad discretion
to suppress evidence as a sanction for improper police conduct in
implementing the express or implied consent statute.”), overruled on
other grounds by Smith, 254 P.3d at 1159.
¶ 36 More generally, the supreme court has warned that “law
enforcement may not violate a defendant’s statutory rights with
impunity.” Null, 233 P.3d at 682. Here, if violation of the statute’s
prohibition on forced tests is to have any consequence, the results
of an illegal forced test must be excluded from evidence. Indeed,
the statute provides for admission into evidence of results from
forced testing conducted pursuant to the four listed exceptions,
§ 42-4-1301(6)(e), suggesting that results from forced testing are
inadmissible in other circumstances.
¶ 37 The two cases on which the People primarily rely are
distinguishable. In Clayton, the supreme court held that any
20 potential violation of a suspect’s statutory right to call a family
member at the earliest possible time after his arrest did not require
suppression of the suspect’s statements, as it did not undermine
his voluntary waiver of his Miranda rights. 207 P.3d at 836-38.
And in People v. Shinaut, the supreme court held that suppression
was not warranted where an officer permitted a driver to change his
mind (which the Expressed Consent Statute does not permit) and
take a blood test after initially requesting a breath test. 940 P.2d
380, 383-84 (Colo. 1997). The court reasoned that, although there
was a technical violation of the statute, the driver “was not deprived
of any right that would justify rendering the blood test results
inadmissible.” Id. at 384.
¶ 38 Here, by contrast, we have concluded that the statute afforded
Raider the right to refuse a test, which would carry the penalties of
temporary loss of his driver’s license and admission of his refusal at
trial, but which could not be overridden by a warrant. The forced
blood draw — conducted while Raider was locked in four-point
leather restraints and held down by officers — violated that right.
Suppression of evidence from the test is therefore warranted.
21 ¶ 39 But while suppression is an appropriate remedy in this case,
dismissal of the charges against Raider is not. The supreme court
has recognized dismissal of charges as another potential sanction
for violation of the Expressed Consent Statute. But the court has
expressed that this remedy may be appropriate “to prevent manifest
unfairness in governmental procedures relating to the acquisition
and preservation of evidence potentially favorable to an accused.”
Turbyne, 151 P.3d at 569 (quoting People v. Gillett, 629 P.2d 613,
619 (Colo. 1981)). In accordance with that purpose, the court has
approved this remedy only in circumstances where the statutory
violation resulted in a failure to obtain evidence that may have been
favorable to the driver. See Null, 233 P.3d at 681-82 (officer failed
to provide the driver with the type of test he chose); Riley, 104 P.3d
at 222 (same); Gillett, 629 P.2d at 619 (same). It makes sense to
dismiss criminal charges where officers’ actions deprive a defendant
of potentially exculpatory evidence. But no such circumstances
exist in this case.
¶ 40 Accordingly, we conclude that suppression of evidence from
the illegally obtained test is warranted, but dismissal of the charges
against Raider is not. Thus, the trial court should have excluded
22 evidence concerning the illegal test at trial. We also conclude that
admission of the evidence substantially influenced the verdict or
affected the fairness of the proceedings as to both counts. See
Hagos, ¶ 12. The prosecution relied heavily on the test results to
establish the DUI charge, and it relied heavily on Raider’s resistance
to the forced blood draw to establish the obstructing a peace officer
charge. It is unclear (and the parties have not addressed) what
impact the illegality of the forced blood draw may have on the
obstruction charge, given that “[i]t is not a defense to a prosecution
under this [statute] that the peace officer was acting in an illegal
manner, if he or she was acting under color of his or her official
authority.” § 18-8-104(2), C.R.S. 2020. But, at a minimum, we
conclude that the admission of the inculpatory test results
substantially influenced the jury’s verdict on this charge.
Therefore, both convictions must be reversed.
III. Conclusion
¶ 41 The judgment of conviction is reversed, and the case is
remanded for a new trial on both charges.
JUDGE ROMÁN and JUDGE FOX concur.