Summaries of Published Opinions, 0321 COBJ, Vol. 50, No. 3 Pg. 78

PositionVol. 50, 3 [Page 78]

50 Colo.Law. 78

Summaries of Published Opinions

Vol. 50, No. 3 [Page 78]

Colorado Lawyer

March, 2021


January 7, 2021

2021COA1. No. 17CA1896. People v. Raider Ir. Criminal Law—Motor Vehicle—DUI—Expressed Consent Statute— Warrant—Forced Blood Draw.

An officer responded to a call about an unauthorized car in a handicapped parking space. When he approached the car, the officer noticed that defendant's eyes were bloodshot and watery, his speech was slurred, and his breath smelled of alcohol. Defendant refused to perform roadside maneuvers and testing pursuant to Colorado's Expressed Consent Statute. After learning that defendant had several prior DUI convictions, the second officer on the scene applied for a search warrant to conduct a blood draw. When the warrant was issued about an hour later, defendant's blood was drawn, and testing revealed that his blood had an alcohol content of. 188 and contained the active components of marijuana. The prosecution charged defendant with felony DUI (three or more prior convictions) and obstructing a peace officer. Before trial, defendant 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 a blood draw is authorized by a warrant. A jury found defendant guilty of both charges.

On appeal, defendant argued that the forced blood draw violated the Expressed Consent Statute because the statute permits officers to require testing of DUI or DWAI suspects in only four specified circumstances, which do not include obtaining a warrant. Under the Expressed Consent Statute, a motor vehicle driver 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, subject to penalties for that refusal. If a driver refuses testing, 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. If a driver refuses testing and an officer lacks probable cause that the driver has committed one of these enumerated offenses, the officer may not require the driver to submit to testing by obtaining a search warrant Here, defendant's forced blood draw and testing was pursuant to a warrant but unsupported by probable cause that defendant had committed one of the enumerated offenses and was therefore illegal. Further, the admission of the inculpatory test results substantially influenced the jury's verdict. Accordingly, the trial court erred by admitting defendant's blood test results, and the error was not harmless.

The judgement of conviction was reversed and the case was remanded for a new trial on both charges.

January 14, 2021

2021 COA 2. No. 19CA0438. McWhinney Centerra Lifestyle Center LLC v. Poag & McEwen Lifestyle Centers-Centerra LLC.

Torts—Intentional Torts—Fraudulent Concealment—Intentional Interference with Contractual Obligations—Intentional of Breach of Contract—Economic Loss Rule—Delaware Law—Breach of Contract.

McWhinney Holding Company, LLLP (McWhinney) and Poag and McEwen Lifestyle Centers, LLC (PMLC), through their respective subsidiaries McWhinney Centerra Lifestyle Center LLC (MCLC) and Poag & McEwen Lifestyle Centers-Centerra LLC (P&M), formed Centerra LLC to acquire, develop, own, and operate an upscale shopping center. MCLC provided the capital, land, and an established public-private partnership with city and county entities for infrastructure financing. P&M served as the managing member of the joint venture. An operating agreement (the Agreement) was created to govern Centerra LLC. MCLC and P&M signed the Agreement, and McWhinney and PMLC signed as guarantors of certain provisions.

The joint venture failed, and MCLC sued P&M, asserting a breach of contract claim based on the Agreement and seven tort claims. Four of the tort claims were dismissed. After a bench trial, the district court concluded that P&M breached both its fiduciary duties and contractual obligations under the Agreement, and it awarded $42,006,032.50 to MCLC in damages plus interest.

On appeal, P&M contended that the district court erred when it found P&M breached the Agreement because the court improperly (1) imposed fiduciary duties on P&M, (2) found that P&M breached its obligations under the Agreement, and (3) calculated damages. The Court of Appeals applied Delaware law as required by the Agreement. Delaware LLC managers owe traditional fiduciary duties of loyalty and care to an LLC and its managers, and nothing in the Agreement eliminated those duties. Therefore, P&M owed the fiduciary duties of care and loyalty to MCLC under the Agreement. Second, a party is excused from performance of its contractual obligations if the other party commits a material breach of the contract. Here, the district court properly found that P&M...

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