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People v. Young.

2024 COA 1. No. 22CA1409. Vehicle and Traffic Regulation—Alcohol and Drug Offenses—Expressed Consent for the Taking of Blood, Breath, Urine, or Saliva—Extraordinary Circumstances.

January 4, 2024

Young rear-ended another car stopped at a red light. Two witnesses to the accident told the responding officer that they smelled alcohol on Young’s breath when they approached him following the accident. A DUI officer arrived on the scene, and Young failed field sobriety tests and was arrested. The DUI officer explained the expressed consent statute and offered Young a blood test to determine his BAC, explaining that Young’s offense occurred during the COVID-19 pandemic when face masks were required in public. Young did not directly respond to the request for a blood test but asked for an attorney and never requested a breath test. The DUI officer documented Young’s response as a refusal. Based on Young’s field sobriety test results and his refusal to submit to a blood draw to determine his BAC, the prosecution charged him with one count of DUI—fourth or subsequent offense and one count of reckless driving. Young moved pretrial to suppress (1) his field sobriety test results, asserting that his consent to the tests was involuntary because he did not know he could refuse to take the tests; and (2) evidence of his refusal to take a blood test, because the DUI officer failed to offer him a breathalyzer test in violation of the expressed consent statute. The trial court denied Young’s suppression motions. Young was convicted of DUI—fourth or subsequent offense.

On appeal, Young contended that the trial court erroneously denied his motion to suppress the field sobriety test results because the DUI officer never informed him that he could refuse the tests, so his consent was involuntary. Consent is involuntary when it results from duress or coercion, whether express or implied, or from any other form of undue influence exercised by the police against the defendant. Here, the trial court credited the DUI officer’s testimony that she twice advised Young that the tests were voluntary and that he completed them of his own volition. Further, the record does not show that the DUI officer was overbearing or that the sobriety tests were the product of duress, coercion, deception, or the officer’s undue influence. And even if Young believed he had no choice but to complete the sobriety tests, the DUI officer did not cause that perception. Therefore, the totality of the circumstances shows that Young voluntarily consented to taking the field sobriety tests and that the trial court did not err by denying his motion to suppress the test results.

Young also argued that the trial court erred by denying his motion to suppress evidence of his refusal to take a blood test to determine his BAC. He maintained that the Aurora Police Department’s (APD) policy limiting BAC testing to blood tests does not fall within the extraordinary circumstances exception in the expressed consent statute, and thus the DUI officer’s failure to provide him a testing choice violated the statute. Generally, a driver may choose between a blood or breath test, but under CRS § 42-4-1301.1(2)(a.5)(I), a law enforcement officer may require the driver to submit to a different test if there are “extraordinary circumstances that prevent the completion of the test elected by the person.” The expressed consent statute allows a law enforcement officer who is interacting with a suspect to determine in the first instance whether extraordinary circumstances exist. During the pandemic, after consulting with a physician the APD enacted a policy to only offer blood draws to determine BAC because the risk of transmitting COVID-19 during breathalyzer testing was too high, and the DUI officer testified that she explained the APD’s policy to Young when she asked him to take the blood test. The COVID-19 pandemic was not created by, or within the control of, the officer or the APD, and the APD’s policy formally recognized the COVID-19 pandemic as an extraordinary circumstance that was already beyond its control. Accordingly, the APD’s policy was a valid response to the extraordinary circumstance of the COVID-19 pandemic, the officer did not violate the statute when she asked Young take a blood test after explaining the extraordinary circumstances, and Young’s failure to complete the blood test constituted a refusal. Therefore, the court did not err in denying the motion to suppress the blood test.

The judgment was affirmed.

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

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