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Wednesday, April 19, 2017

Colorado Legal News

Three recent Colorado Supreme Court Decisions are bad for people charged with DUI. 

People v. Hyde
A driver was in a single-vehicle accident that rendered him unconscious. Suspecting that he had been drinking, the police had his blood drawn after he had been taken to the hospital.  His blood was drawn while he was unconscious and unable to express his consent.  The Court determined that Colorado’s Expressed Consent Statute C.R.S 42-4-1301(1) was sufficient consent that the warrantless blood draw from an unconscious person was not a violation of the Fourth Amendment’s prohibition on unreasonable searches.

People v. Simpson
An Officer saw a pickup bounce off a curb four times, turn across a median, and then oversteer into oncoming traffic while entering an apartment complex parking lot. When asked by the Officer if he had been drinking the driver answered yes.  Driver was ultimately transported to the hospital for medical attention.  At the hospital, he was read the “Colorado Express Consent Law Information” but told he did not have the option of a breath test because breathalyzers are not available at the hospital.  The defense challenged this as an involuntary blood draw.  The Court held that the Expressed Consent Statute eliminated the need for the trial court to assess the voluntariness of the defendant’s consent; therefore, the blood draw was constitutional.

Fitzgerald v. People
The Court considered whether the prosecution can use a defendant’s refusal to submit to blood-alcohol testing as evidence of guilt at trial as provided for in Colorado’s Expressed Consent Statute C.R.S. 42-4-1301.1.  The question was whether the evidence of a refusal violates the Fourth Amendment.  The Court held that the evidence of refusal does not “impermissibly burden . . . a defendants Fourth Amendment right to be free from an unreasonable warrantless search.”  Justice Hood who delivered the opinion called characterized the holding as a “short leap.”

The blood and breath tests mentioned in the cases above are NOT performed at roadside.  If an officer asks for roadside tests including the portable breath test, be aware that they are optional you cannot be forced to perform roadside tests.  With or without the roadside test, if the officer has probable cause to believe that you have been driving under the influence, you will be taken to jail/hospital for a breath or blood test.  You will not have the chance to consult with an attorney.

The moral of this story is Don’t Drink and Drive.

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