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People v. Montoya.

2022 COA 55. No. 18CA1409.  Driving Under the Influence—Refusal to Take a Blood Test—Expressed Consent Statute—CRE 106 Rule of Completeness.

May 26, 2022

Defendant drove into the back of another car. The other driver called the police and reported that defendant appeared intoxicated. The responding officer also noticed signs of intoxication, but defendant declined to perform roadside maneuvers. He was arrested on suspicion of driving under the influence (DUI) and advised about Colorado’s expressed consent statute. Defendant initially agreed to take a blood test, and at detox, he signed an expressed consent form and agreed to a blood test. When the nurse arrived for the test defendant refused it, but within the two-hour window for administering the test, he again said he would take it. In a pretrial ruling, the district court concluded that defendant’s later statement that he was willing to take the test was self-serving hearsay because once he refused the test, he was not entitled to change his mind. Over defendant’s objection based on CRE 106’s rule of completeness, the court allowed the prosecution to redact the portion of the officer’s body cam video that included defendant’s statement that he would take the test, and the court instructed the jury that defendant had refused to take the test. Defendant was found guilty of DUI and careless driving. In a separate hearing, the court found by a preponderance of the evidence that defendant’s DUI violation was his fourth conviction, which elevated his DUI to a felony.

On appeal, defendant argued that the district court erred by excluding his exculpatory statement that he was willing to take a blood test. Colorado’s expressed consent statute requires that a person who elects either a blood or breath test must cooperate such that the blood or breath sample can be obtained within two hours of the person’s driving. A licensee’s initial refusal to take a test may not be irrevocable, but the driver must agree to the test while the officer remains engaged in requesting or directing completion of the test. A licensee’s unwillingness to take a test may be construed as a refusal of testing, which may result in an inference of guilt. Here, the district court’s legal conclusion that a person’s refusal to take a blood test is irrevocable was an abuse of discretion without first finding that defendant had refused because the officer had disengaged, the test could not be administered within the two-hour window when he later changed his mind, or defendant engaged in other actions that constituted refusal by noncooperation. Consequently, the pretrial ruling was a misapplication of the law, and the court erred. Further, this error was not harmless.

Defendant also argued that the entire video of his test-taking should have been presented to the jury under CRE 106’s rule of completeness. When refusal to take a chemical test is disputed by the defendant based on the defendant’s recorded or written statement that the prosecution seeks to use at trial, the entire statement must be presented to the jury for its consideration. Here, this rule required admission of the entire test-taking video because (1) the jury needed a complete picture of what happened; (2) the rule of completeness may trump otherwise inadmissible evidence, such as hearsay, to prevent a misleading or incomplete view; and (3) the jury’s potential question as to why defendant was not given the test if shown the latter portion of the video would put the issue of refusal in dispute. The district court thus erred, and the error was not harmless because the jury was invited to consider defendant’s refusal as part of the evidence when it did not have the entire video in which defendant later claimed a willingness to take the test.

The convictions were reversed and the case was remanded for a new trial.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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