Thursday, September 2, 2010

COA affirms requirement of police to request chemical testing for alcohol-related driving offenses

The Colorado Court of Appeals has affirmed that law enforcement officers are required to request that persons suspected of alcohol-related driving offenses complete a chemical test before obtaining a chemical sample without consent. In People v. Maclaren, a driver caused a head-on collision by crossing over the dividing line into the oncoming lane of traffic, resulting in serious bodily injury to the driver of the other vehicle. The driver who crossed the dividing line was also injured and taken by ambulance to a hospital. The driver admitted to having consumed alcohol earlier in the day and both the paramedics and police noticed an odor of alcohol on the driver's breath. Once at the hospital, the police officer ordered a blood draw on the driver without either advising the driver of the express consent laws or asking him to provide a sample for chemical testing. The driver was later charged with DUI and vehicular assault. At trial, the driver asked the court to suppress the blood test results and dismiss the case against him because he was not advised of the express consent law nor asked to submit to chemical testing. The trial court, while finding probable cause to justify a chemical test, nonetheless suppressed the test results and dismissed the case against the driver due to the statutory violation. The prosecution appealed. The Court of Appeals ruled that the willful disregard of the statutory requirement of the express consent law was sufficient grounds for the trial court to suppress the test results. The Court held that, even though officers with probable cause have the authority to obtain a blood draw without consent in a vehicular assault case, the statute nevertheless requires that a request for testing first be made after advising the driver that the officer has probable cause to believe the driver is at least impaired by the consumption of alcohol, drugs or both. The Court held that, because the officer made no attempt whatsoever to advise or request, and no extraordinary circumstances existed to justify such failure to advise/request, the trial court was well within its discretion to suppress the test results. However, the Court of Appeals held that full dismissal of the case was an excessive remedy to the statutory violation committed by the officer, and remanded the case to the trial court for further proceedings.

To review, Colorado law requires officers who have probable cause that a person has driven a motor vehicle while impaired or under the influence of alcohol, drugs or both to request that the driver submit to a test of their blood or breath and that, while the driver may refuse testing, refusal will result in the revocation of his driving privilege for at least one year. If an officer suspects that a person has committed vehicular assault or homicide (causing death or serious bodily injury while driving under the influence), he must make a similar request unless the driver is unconscious or unable to respond. As long as the officer has probable cause that the driver has committed vehicular assault/homicide, he can compel extraction of a blood sample without the driver's consent.