People v. Spencer.
2024 COA 75. No. 23CA0809. Alcohol Traffic Offenses—Expressed Consent for the Taking of Blood, Breath, Urine, or Saliva—Extraordinary Circumstances.
July 18, 2024
Spencer was pulled over for driving without license plates and then arrested for driving while intoxicated. Trooper Hernandez, the arresting officer, advised Spencer under CRS § 42-4-1301, the express consent statute. Spencer chose a blood test, and Trooper Hernandez, following standard police department procedure, requested that an ambulance meet him and Spencer at the jail. Medical personnel arrived and tried to draw Spencer’s blood for about 10 minutes, but they were unable to draw blood because they couldn’t find a suitable vein. Trooper Hernandez then told Spencer that he had to submit to a breath test or face the consequences of refusing to submit to a test. Spencer then agreed to submit to a breath test, which showed a blood alcohol content of .089. Spencer was charged with one count of felony DUI (fourth or subsequent offense) and one count of license plates improperly attached. Spencer moved to either suppress the results of the breath test or dismiss the charges. The district court granted the motion and suppressed evidence of the breath test. A jury ultimately convicted Spencer of the lesser included offense of felony driving while ability impaired (fourth or subsequent offense).
As an initial matter on appeal, the court of appeals considered whether it had jurisdiction. The prosecution challenged the district court’s determination of the proper legal standard and its application of that standard to the particular case facts. Because this argument raises a question of law reviewable under CRS § 16-12-102(1), the court determined that it had jurisdiction to review the district court’s ruling. Further, the facts relevant to whether suppression was proper were undisputed, so the court exercised jurisdiction to review the court’s ultimate ruling suppressing the breath test results.
On the merits, the prosecution argued that the district court misapplied the law by imposing a stricter standard for “extraordinary circumstances” than that established by the Colorado Supreme Court and that its interpretation was contrary to the express consent statute’s legislative intent. The express consent statute requires a driver to take a chemical alcohol test per a police officer’s request when the officer has probable cause to believe the driver is intoxicated. The driver may then choose either a blood or breath test, but once that choice is made, the driver must cooperate by providing the blood or breath sample within two hours. Generally, law enforcement’s failure to provide a driver with the driver’s chosen chemical test violates the express consent statute. But the statutory “extraordinary circumstances” exception excuses law enforcement from providing a driver with the chosen test when circumstances beyond the officer’s control prevent completion of the driver’s chosen test within the two-hour time period. And if extraordinary circumstances prevent completion of the chosen test within the two-hour time period, the exception applies and the driver must take the alternative test. Under People v. Null, 233 P.3d 670 (Colo. 2010), the prosecution has the burden of showing that extraordinary circumstances excused law enforcement’s failure to provide a driver with a blood draw when medical personnel failed to respond to dispatch’s request. The court held that when a medical professional tries to draw blood from the suspect for 10 minutes but cannot locate a vein, law enforcement’s failure to provide the chosen blood test constitutes “extraordinary circumstances” that excuse the officer’s duty to provide the chosen test. Here, medical personnel responded to dispatch’s request, and the prosecution presented evidence to explain why the responders were unable to complete the draw, which was a circumstance outside the officer’s control. Neither Null nor the express consent statute requires the prosecution in such circumstances to prove that subsequent attempts to draw blood would have been unsuccessful. Therefore, the district court improperly extended the prosecution’s evidentiary burden by concluding that the prosecution was also required to show that any further blood draw attempts would have been unsuccessful. Further, the court’s interpretation was inconsistent with the express consent statute’s primary purpose of facilitating cooperation between citizens and police officers in the enforcement of highway safety.
The rulings were disapproved.