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People v. Raider Jr.

2021 COA 1. No. 17CA1896. Criminal Law—Motor Vehicle—DUI —Expressed Consent Statute—Warrant—Forced Blood Draw.

January 7, 2021


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.

 

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