Chapter 4 - § 4.5 • THE CHEMICAL TESTS

• Jurisdiction: Colorado

§ 4.5 • THE CHEMICAL TESTS

§ 4.5.1—Summary

Motions to suppress the results of chemical tests, such as a breath test or a blood test, are made on a variety of bases. The analysis to be applied by the court in ruling on the motion depends upon the basis of the motion.

Motions to suppress the results of a chemical test due to the loss or destruction of a second sample are discussed in § 3.8.2. Colorado Department of Public Health and Environment (CDPHE) regulations no longer require preservation of a second sample and, generally, the loss of a second sample of the defendant's blood, breath, or urine is not a constitutional violation mandating the suppression of evidence.

Motions to suppress the results of a breath test due to a failure to comply with the regulations of the CDPHE in administering the test are discussed in § 6.3, and the same discussion in connection with blood tests occurs in § 6.4. A violation of the CDPHE regulations will usually go only to the weight of the test results, and not to the admissibility of the results.

Generally, there is a requirement of voluntariness. However, the express consent law often renders this issue moot. This issue is addressed in § 4.5.2.

§ 4.5.2—Voluntariness and the Express Consent Law

Normally, a person cannot be required to give a sample of blood, breath, or urine to the police in the absence of either a court order or probable cause coupled with exigent circumstances. However, both legislation and case law in this area have established a distinct set of rules in connection with DUI prosecutions.

Colorado's "express consent" law is set out in C.R.S. § 42-4-1301.1 and provides that anyone who drives a motor vehicle anywhere in Colorado "consents" to the various provisions of the statute. The Colorado Supreme Court has held that a driver's prior statutory consent satisfied the consent exception to the warrant requirement under the Fourth Amendment. People v. Hyde, 2017 CO 24; People v. Simpson, 2017 CO 25. The basic statutory provision is that such a driver "shall be required to take and complete, and to cooperate in the taking and completing of, any test or tests of the person's breath or blood for the purpose of determining the alcoholic content of the person's blood or breath when so requested and directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of the prohibitions against DUI, DUI per se, DWAI, or UDD [underage drinking and driving]." C.R.S. § 42-4-1301.1(2)(a)(I).

The statute gives a person who is 21 or older the right to demand a blood test. C.R.S. § 42-4-1301.1(2)(a)(I). The same section provides that a person who is under 21 "is entitled to request" a blood test, unless the charge is UDD. A UDD charge under C.R.S. § 42-3-1301(2)(a.5) must be based upon an analysis of the underage driver's breath; therefore, an arrestee facing a UDD charge must provide a breath sample or face DMV consequences.

In People v. Turbyne, 151 P.3d 563 (Colo. 2007), the Colorado Supreme Court established an "extraordinary circumstances" exception to the requirement that law enforcement honor a driver's demand for a blood test. The extraordinary circumstances were delays caused by weather and a backlog of cases, combined with the fact that some of the local hospitals had stopped administering blood tests to DUI suspects. The statute was subsequently amended to formalize this change and to allow law enforcement to ask a suspect to perform a different chemical test from that originally chosen by...