The Colorado Supreme Court announced it will review three decisions from the state’s Court of Appeals on subjects ranging from the ability of police to forcibly draw blood from a suspected drunk driver, to the law that criminalizes spitting on first responders, and whether Arapahoe County waited 10 years too long to sue a couple for Medicaid fraud.

Forced blood draw of drunk driver

Anyone driving a motor vehicle in Colorado has already given their consent for a breath test or blood draw from law enforcement upon request, if there is probable cause to suspect drug or alcohol impairment. Police may also forcibly restrain a person in order to perform the test, but only for four suspected crimes: homicide, vehicular homicide, assault or vehicular assault.

Fort Collins police obtained a search warrant to draw Charles Raider Jr.’s blood after they found him sitting in a parked car, apparently inebriated, and he refused a sobriety test. However, officers only sought to charge him with felony driving under the influence. They restrained him for the blood draw at the hospital, and Raider’s blood alcohol content tested 0.188, above the legal limit.

Raider appealed, arguing the evidence from his blood draw should have been suppressed at trial because it circumvented what is known as the expressed consent statute. Even if police have a warrant, he contended, the four crimes listed are the only ones that can allow for a forced blood draw, and not DUI alone.

In January 2021, a three-member panel of the Court of Appeals agreed with Raider and ordered a new trial.

“The General Assembly has decided that, in the case of someone who is suspected of driving under the influence of alcohol or drugs but is not suspected of one of the four listed offenses,” wrote Judge Christina F. Gomez, “the driver may be motivated to cooperate with testing by threatened punishments but may not be forced to undergo such testing.”

The government appealed, and the Supreme Court has agreed to consider whether the appellate panel was correct that the expressed consent statute protects drivers suspected of DUI from the type of physical restraint used against Raider.

The case is People v. Raider.

Spitting on officers

A La Plata County jury convicted Cheryl Lynette Plemmons on three counts of second degree assault for spitting on two sheriff’s deputies who conducted a welfare check at her home in 2016.

State law criminalizes as a felony the act of expelling bodily fluids onto a first responder with “intent to infect, injure, or harm another person.” However, it is only a misdemeanor to spit with the intent to harass or annoy.

Plemmons argued the evidence in her case did not show she intended to infect or injure the deputies. Moreover, the law is unconstitutional because it has no definition of “harm,” therefore providing no notice of what is illegal.

The Court of Appeals sided against her, believing the evidence was not only sufficient, but that harm encompassed more than simply a physical danger. The appellate judges upheld the instruction that the trial court gave to Plemmons’ jury: that psychological or emotional harm was sufficient, examples of which included the officers’ fear and anxiety.

One member of the panel, Daniel M. Taubman, warned that the law may well be constitutional, but it is nonetheless quite vague. He noted that Plemmons was convicted even though neither officer said he had experienced psychological or emotional distress after being spat upon.

The Supreme Court agreed to review whether the jury instruction was correct, as well as whether sufficient evidence existed that Plemmons intended to harm the deputies.

The case is Plemmons v. People.

Ten years too late?

Between 2002 and 2004, Monica Velarde and Michael Moore received $79,591 in Medicaid benefits. Arapahoe County claimed Velarde failed to report that she and Moore shared an income, and that the couple therefore obtained the assistance fraudulently.

The county sued in December 2018, but a lower court dismissed the case. The county informed Velarde about the overpayments in February 2008, but the relevant law allowed her to challenge the determination within 90 days, after which the county had 35 days to turn to the courts.

The Court of Appeals agreed with the dismissal, saying Arapahoe County had clearly filed suit beyond the deadline. The appellate panel rejected further the argument that the legal time limit did not apply to the county.

The Supreme Court will review whether the panel decided correctly.

The case is Arapahoe County Department of Human Services v. Velarde and Moore.