Whidden v. People

78 P.3d 1092, 2003 WL 22427818
CourtSupreme Court of Colorado
DecidedOctober 27, 2003
DocketNo. 02SC481
StatusPublished
Cited by1 cases

This text of 78 P.3d 1092 (Whidden v. People) is published on Counsel Stack Legal Research, covering Supreme Court of Colorado primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Whidden v. People, 78 P.3d 1092, 2003 WL 22427818 (Colo. 2003).

Opinion

Justice BENDER

delivered the Opinion of the Court.

Introduction

In this parole revocation appeal, we consider whether the Colorado Board of Parole has the authority to revoke parole and return a parolee to the Department of Corrections based on a single positive drug test. To answer this question we construe four complex and conflicting statutes: § 17-2-201(5.5), 6 C.R.S. (2002); § 17-2-102(8.5), 6 C.R.S. (2002); § 17-2-103, 6 C.R.S. (2002); and §§ 16-11.5-101 to 107, 6 C.R.S. (2002). The first two statutes can reasonably be interpreted to prohibit the board from revoking parole based on a single positive drug test, and the latter two statutes appear unambiguously to allow the board to revoke parole and return the parolee to the Department of Corrections after only one positive test. We resolve this conflict by holding that the board is authorized, but not required, to revoke parole based on any positive drug test that occurs after the baseline test.

In reaching this holding, we conclude that the only statutes relevant to this case are §§ 16-11.5-101 to 107 (the "Substance Abuse Act") and § 17-2-103 ("section 108"). Sections 17-2-102(8.5) ("section 102(8.5)") and 17-2-201(5.5) ("section 201(5.5)") do not apply to this case because at the time the Substance Abuse Act was enacted, the General Assembly expressly exempted application of these sections to parolees who are subject to the Substance Abuse Act.

The court of appeals, which did not consider whether the Substance Abuse Act applies to this case, construed both sections 201(5.5) and 102(8.5) to prohibit revocation only when a baseline test is positive and to allow revocation when any test other than the baseline is positive.1 People v. Whidden, 56 P.3d 1201 (Colo.App.2002). While this construction [1093]*1093does harmonize sections 201(5.5) and 102(8.5) with section 108 by preserving the board's authority to revoke parole whenever it finds that a condition of parole has been violated, it does not account for the exemption provisions found in sections 201(5.5) and 102(8.5). As we explain below, when the exemption provisions are applied, it becomes clear that the Substance Abuse Act and section 108 are the appropriate statutes to apply to this case. Under these provisions, the board possesses the authority to revoke parole and return a parolee to the Department of Corrections after a single positive drug test.2 Thus, we affirm the result reached by the court of appeals but employ different reasoning, and return this ease to that court with directions to remand the case to the trial court to dismiss Whidden's 35(c) motion.

I. Facts and Proceedings Below

The petitioner, Alexander Whidden, was released on parole, and as a condition of his parole he was required to submit to random drug testing.3 Whidden was tested three times before his parole revocation hearing. The first two tests were negative, but the third test was positive for cocaine. Based on this third positive test, Whidden's parole officer filed a complaint with the board 4 alleging Whidden violated condition eight of his parole agreement, which provided, "Parolee shall not abuse and/or use illegal drugs." 5

In response, Whidden argued that the board lacked authority to revoke his parole based upon a single positive drug test, or, alternatively, if the board could revoke his parole, it did not possess the authority to return Whidden to the Department of Corrections. Whidden relied on subsection 201(5.5)(d), which he construed to provide a limited range of sanctions from which the board may choose when a parolee first tests positive for use of controlled substances.6 Under this provision, Whidden argued, the only sanctions the board is authorized to impose after a first positive test are mandatory participation in a drug or mental health program, placement in a community correctional non-residential program, or one of the [1094]*1094other "intermediate sanctions" listed in subsection 201(5.5)(d)(ID). The administrative hearing officer disagreed, finding that section 201(5.5) did not apply because it governs only the baseline test, which a parolee is required to give immediately upon release.7 Because Whidden's positive test occurred later in his parole period, after the baseline test, the hearing officer found that the division of adult parole possessed authority under seetion 102(8.5)(b)(II) 8 to seek revocation based on a single positive test, and that she possessed the authority under section 108 to order revocation. She then found that Whid-den had violated a condition of his parole, and, based on that finding and other factors unique to Whidden's case, she revoked Whid-den's parole and returned him to the Department of Corrections to serve the remainder of his sentence.

Whidden appealed. In the district court, the assistant district attorney argued that section 102(8.5) controls and that limited sanctions are only required if a parolee's baseline test is positive.9 If any test after the baseline test is positive, the board then has authority to revoke parole. Whidden again argued section 201(5.5)(d) controls his case and limits the authority of the board to revoke parole after a single positive drug test. The district court applied section 201(5.5)(d), reasoning that the language of that provision is permissive and does not limit the board's traditional authority to revoke parole based on any violation of a parole agreement. The district court construed the statute to add to the board's authority to revoke parole by allowing it to take measures short of revocation should it find mitigating cireumstances in a particular case. In other words, the district court found that subsection 201(5.5)(d) expands rather than limits the board's traditional power to impose punitive sanctions, including revocation and imprisonment for parolees who violate the terms of their parole agreements.

In an attempt to avoid conflicts between sections 102(8.5), 201(5.5), and 108, the court of appeals affirmed the trial court, holding that sections 201(5.5) and 102(8.5) "prohibit revocation upon initial testing even if the result is positive, but ... allow revocation upon any subsequent positive test for drugs even if the initial test was not positive." Whidden, 56 P.3d at 1204. That court interpreted both subsections 201(5.5)(d)(D) and 102(8.5)(a) to restrict the board's authority to impose sanctions only if the baseline test is positive. See id. at 1204-05. On the other hand, the court reasoned, neither provision states "that there must be at least two positive tests before revocation may occur or that revocation of parole may occur only upon a second positive test." Id. at 1205 (emphasis in original).

The court determined that this interpretation harmonizes sections 102(8.5) and 201(5.5) with section 103, which permits the board to modify or revoke parole whenever it deter[1095]*1095mines that a condition of parole has been violated. It also held that this construction comports with the plain meaning of the statutes.

Whidden now appeals to us, arguing the court of appeals' construction of sections 102(8.5) and 201(5.5) is incorrect.10

II. Analysis

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Cite This Page — Counsel Stack

Bluebook (online)
78 P.3d 1092, 2003 WL 22427818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/whidden-v-people-colo-2003.