Chapter 6 - § 6.4 • EVIDENCE OF BLOOD TESTS

• Jurisdiction: Colorado

§ 6.4 • EVIDENCE OF BLOOD TESTS

§ 6.4.1—Introduction

As with breath tests, the results of reliably conducted tests of the defendant's blood to determine alcohol content are admissible at trial against the defendant. Ordinarily, the issue of admissibility should be resolved at trial and not during pretrial motions. Provided that the court finds that the test was reliably conducted, it is for the jury to determine what weight to accord a particular test result and the effect of any irregularities in the testing procedure.

Since the underlying principles regarding admissibility of blood tests are identical to those underlying the admissibility of breath tests, this discussion frequently refers back to the preceding section, which discusses these issues in great detail for breath tests. Only those issues unique to the admissibility of blood tests will be discussed in detail here.

One such issue is that the DUI statute specifically gives a driver the right to demand a blood test. C.R.S. § 42-4-1301.1(2)(a)(I). The defendant in Riley v. People, 104 P.3d 218 (Colo. 2004), demanded a blood test, but the police were not able to comply with this request because the appropriate personnel were not available in a timely fashion. The police asked the defendant to take a breath test, but he refused. The defendant moved to dismiss the charge filed on the ground that the police failed to comply with the express consent statute. The county court denied the motion, but the Colorado Supreme Court reversed, holding that "[t]he defendant has the right to undergo the chemical testing of his choice." Id. at 222. The court noted that there is a "good cause" exception to this right, but that testimony that the personnel were not available, and that this unavailability was unusual, was not adequate to create "good cause." Id. The court revisited the "good cause" issue in Turbyne v. People, 151 P.3d 563 (Colo. 2007), and held that a failure to comply with a demand for a blood test was excused by unusual weather-related delays and a high call volume to the only entities available to draw blood. Three dissenters did not agree that these explanations were adequate.

A defendant who chooses a blood test must sign consent and release forms, and a failure to do so may be deemed a refusal to cooperate. C.R.S. § 42-4-1301.1(3). C.R.S. § 42-4-1301.1(8) provides that a person who is dead or unconscious may be tested without consent. However, the officer must still have his or her initial probable cause to suspect the unconscious driver was intoxicated. People v. Grassi, 192 P.3d 496 (Colo. App. 2008). Under Grassi, the express consent statute still requires police to have probable cause to collect a blood sample from an unconscious person. C.R.S. § 42-4-1301.1(8). That subsection also provides that if a person is unable to give consent for a chemical test, or if a test is not conducted because the administration of a state test would endanger the defendant's life, the prosecution may nevertheless obtain access to any analysis or result of a test obtained by a health care provider. The statute abrogates the physician-patient privilege with respect to such analysis.

Pursuant to common law and CRE 501, privileges are recognized as creatures of statute and/or constitutional mandate. People v. Anderson, 954 P.2d...