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People v. Tarr.

2022 COA 23. No. 18CA0485. Fourth Amendment—Expressed Consent Statute—DUI—Warrantless Search—Blood Draws.

February 24, 2022

Defendant was driving home from a bar when he sped through a red light, attempted to make a left turn at an intersection with a marked crosswalk, and struck and killed a pedestrian who was in the crosswalk. The responding officers smelled alcohol on defendant’s breath and noted that his speech was slurred. Because defendant was complaining of a headache, he was transported to the hospital. Blood tests performed there showed that defendant’s blood alcohol content was roughly four times the limit for DUI at the time of the collision. Defendant filed a pretrial motion to suppress the blood test results, which the trial court denied. A jury found defendant guilty of vehicular homicide (DUI), vehicular homicide (reckless driving), DUI, reckless driving, careless driving, second degree murder, and attempted second degree murder.

On appeal, defendant contended that the blood draws were illegal searches under the Fourth Amendment to the US Constitution and the trial court erred by concluding they were legal based solely on the expressed consent statute. There is no constitutional right to refuse a blood alcohol test under Colorado’s expressed consent statute, and the Colorado Supreme Court has held that expressed consent statutes alone satisfy the consent exception to the Fourth Amendment warrant requirement. While the expressed consent statute allows drivers to refuse chemical testing under certain circumstances, law enforcement may force a driver to take a blood test over a driver’s refusal where law enforcement has probable cause to suspect that the driver committed negligent homicide, vehicular homicide, assault in the third degree, and vehicular assault. Here, the officer followed defendant to the hospital and advised him of his rights under Colorado’s expressed consent statute, and defendant refused to consent to the blood draw. Shortly thereafter, the victim died from his injuries, and the officer advised defendant that because of the fatality, the blood draw would have to be done regardless of his consent. Defendant had no constitutional right to refuse the test because the officers had probable cause to believe he had committed vehicular homicide. Therefore, the blood draws were not illegal searches under the Fourth Amendment, and the trial court did not err.

Defendant also argued that his conduct should have been prosecuted and punished exclusively under the vehicular homicide statutes and not under the general murder statutes. Under Colorado law, the enactment of a specific criminal statute does not preclude prosecution under a general criminal statute unless there is a clearly expressed legislative intent to limit prosecution to the specific statute. The vehicular homicide statute does not preclude prosecution under the general murder statutes for causing the death of a person while driving.

Defendant further argued that, as applied to his conduct, the second degree murder and vehicular homicide statutes violate Colorado’s constitutional equal protection guarantee because they proscribe identical conduct. However, charging defendant with both crimes did not violate his right to equal protection because (1) the offenses involve different levels of intent, and (2) unlike the second degree murder statute, to obtain a conviction under the vehicular homicide (DUI) statute, the prosecution has to prove that a defendant drove or operated a motor vehicle while legally intoxicated. As applied to defendant, the statutes do not criminalize the same conduct: the prosecution argued that defendant committed (1) vehicular homicide (DUI) by driving while intoxicated and proximately causing the victim’s death; and (2) murder, because he was aware that driving at a high rate of speed, failing to stop at a red light, and veering into an intersection marked with a crosswalk were almost certain to cause the death of a pedestrian in the crosswalk. Further, defendant’s intoxication at the time was irrelevant for a second degree murder conviction.

Lastly, defendant contended that the evidence was insufficient to sustain his convictions for second degree murder and attempted second degree murder. However, the jury was presented with sufficient evidence to find that defendant acted knowingly when he drove after drinking and sped into the intersection.

The judgment was affirmed.

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

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