Drunk Drivers and Blood Draws in Colorado
| Jurisdiction | Colorado,United States,Federal |
| Citation | Vol. 43 No. 2 Pg. 27 |
| Pages | 27 |
| Publication year | 2014 |
Criminal Law
Drunk Drivers and Blood Draws in Colorado
By H. Morley Swingle
Criminal Law articles are sponsored by the CBA Criminal Law Section and generally are written by prosecutors, defense lawyers, and judges to provide information about case law, legislation, and advocacy affecting the prosecution, defense, and administration of criminal cases in Colorado state and federal courts.
Coordinating Editor
Morris Hoffman, Judge for the Second Judicial District Court, Denver
About the Author
H. Morley Swingle served for thirty years as a state and federal prosecutor before joining the law firm of James T. Anest, PC in Parker. He is a member of the bar in Missouri and Colorado—(303) 841-9525, HMS@ParkerLawyers.com.
This article discusses blood draws from Colorado drunk drivers and various legal issues affecting the admissibility of the test results at trial.
The best evidence in drunk driving cases is scientific proof of the suspect's blood alcohol level. Modern jurors have watched television shows such as CSI, and they expect to see this sort of scientific evidence. Thus, it is more important than ever for prosecutors, defense lawyers, and judges to understand when evidence regarding blood draws is going to be admissible, and when it is not. The admissibility of toxicology results of a blood sample taken from a drunk driver in Colorado is controlled by the U.S. Constitution, [1] the Colorado Constitution, [2] the Colorado vehicular assault statute, [3] and the Colorado express consent statute.[4] This body of law provides guidance on how to handle these cases.
Warrantless Blood Draws in Cases Involving Death or Serious Injury
When a law enforcement officer in Colorado is faced with a situation where a drunk driver has seriously injured someone in a car crash, the officer may compel the giving of a blood sample without taking the time to seek a search warrant. The warrantless search under these circumstances is valid under both constitutional and statutory law.
Constitutionality of Warrantless Blood Draws in DUI-Related Homicides and Assaults
The Fourth Amendment of the U.S. Constitution and Article II, § 7 of the Colorado Constitution prohibit "unreasonable" searches.[5] In Schmerber v. California, [6]decided in 1966, the U.S. Supreme Court held it reasonable for a police officer to require medical staff to draw the blood of an injured and visibly intoxicated drunk driver at a hospital two hours after his one-car accident in which his passenger had been injured. The Court found that in a situation where alcohol was leaving the drunk driver's body with every passing minute and time had to be taken to transport the accused to the hospital and to investigate the accident, "there was no time to seek out a magistrate and secure a warrant, " so a warrantless blood draw was reasonable.[7]
The Colorado Supreme Court followed suit with People v. Sutherland, [8]approving a warrantless blood draw from a drunk driver involved in a fatal accident. The Court ruled that warrantless blood draws were constitutionally permissible when the prosecution could satisfy a four-factor test: (1) there must be probable cause for the arrest of the defendant on an alcohol-related driving offense; (2) there must be a clear indication that the blood sample will provide evidence of the defendant's level of intoxication; (3) exigent circumstances must exist making it impractical to obtain a search warrant; and (4) the test must be a reasonable one and must be conducted in a reasonable manner.[9]
Several Colorado cases have applied the Sutherland test when approving a warrantless blood draw, but all involved exigent circumstances that included accidents with injuries. For example, in People v. Smith, [10]police ordered medical personnel to draw blood from an intoxicated man who claimed someone else had been the driver in a single-car accident, after his injured passenger told police that the defendant had been driving. In People v. Schall, [11]the Colorado Supreme Court noted that the timing of the blood draw in a vehicular homicide case was important, because "if the police wait too long, a blood test will be ineffective." In People v. Shepherd, [12]the Court found that exigent circumstances existed to draw blood from the driver in a fatal car crash because alcohol dissipates quickly in blood, it would have taken "several hours" to get a search warrant, and the defendant was about to be transported by airplane from one hospital to another. In People v. Milhollin, [13]the Court noted that the "inherent nature of a blood alcohol test" justifies a warrantless blood draw, "especially when time has elapsed while the driver is transported to a hospital and the investigating officer is detained at the accident scene."
The Supreme Court in Schmerber cautioned that its holding was limited to its facts. However, neither Schmerber nor Sutherland unequivocally stated that an accident, an injured victim, or other factors establishing exigency beyond the natural dissipation of alcohol from the blood were necessary to dispense with the need for a search warrant to draw blood from a drunk driver.
In Missouri v. McNeely, the U.S. Supreme Court clarified its holding in Schmerber. It is now clear that in a routine drunk driving case, the natural metabolization of alcohol from the bloodstream, standing alone, generally will not be sufficient to establish an exception to the Fourth Amendment's warrant requirement. Instead, "the exigency in this context must be determined case by case based on the totality of the circumstances."[14]
In McNeely, the arresting officer conceded that after the suspect refused to consent to a breath test, he did not try to get a search warrant, even though he was sure a prosecutor would have been available and he had never had any trouble locating a judge in the middle of the night. Further testimony established that in his jurisdiction, prosecutors typically could obtain search warrants for blood within ninety minutes to two hours.[15] The Court held that these facts did not establish sufficient exigency to justify not even trying to get a search warrant. The McNeely Court left the door open for the prosecution to prove, in a particular case, that exigent circumstances existed because they had tried and failed to get a search warrant in a timely manner.
Colorado Statutory Law for Blood Draws in Dili Cases Involving Serious Injuries or Death
The fact that a particular blood draw was not unconstitutional does not end the analysis as to whether the test result will be admissible in court. The extraction of blood must satisfy both constitutional and statutory requirements. The applicable Colorado statutes are the Colorado express consent law and the Colorado vehicular assault statute.
Vehicular assaults and homicides.
The vehicular assault statute and a very similar provision in the express consent statute both specifically provide that when an officer has probable cause to believe that a person driving under the influence has seriously injured someone, the officer may compel the suspect to give a blood draw even without the subject's consent or cooperation. As the express consent statute phrases it, the officer "shall physically restrain the person for the purpose of taking a specimen" when the person refuses to cooperate and the officer has probable cause that the driver committed criminally negligent homicide, vehicular homicide, assault in the third degree, or vehicular assault.[16] The vehicular assault statute states that if the person refuses to cooperate, the officer may have the tests performed "without the person's authorization or consent."[17] The bottom line is that an officer is not required to seek the suspect's consent before ordering a blood draw when there has been a serious injury or death, [18] nor does a drunk driver who has injured or killed someone get the choice of which test to take.[19]
The Colorado statute permitting warrantless blood draws in cases involving serious injury or death has been held constitutional.[20] The statute comports with the teaching of Misssouri v. McNeely that the injuries resulting from car crashes themselves provide sufficient exigency for a warrantless search.
Warrantless Blood Draws in Cases Not Involving Death or Serious Injury
In a routine DUI—one that does not involve death or serious physical injury—the police may not physically force a suspect to submit to a warrantless blood draw without that person's consent. Consent as an exception is discussed below.
Consent as Exception to Warrant Requirement
Consent is a recognized exception to the Fourth Amendment's warrant requirement.[21] Colorado, like most states, has enacted an express consent law specifying that a person who is exercising the privilege of driving on the highways of Colorado has given consent to have his or her blood tested for its alcohol or drug content when an officer has probable cause to believe that the person has been operating a motor vehicle while under the influence of alcohol or drugs.[22] An...
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