Police may forcibly draw blood in certain circumstances over the objection of motorists, the state’s second-highest court determined, expanding upon a prior decision of the Colorado Supreme Court that found there is no constitutional right to refuse a chemical test.

Under Colorado law, people who drive in the state have expressed consent to have their blood or breath tested if police have probable cause to believe they are driving under the influence. The Supreme Court, in the 2017 case of People v. Hyde, determined the expressed consent law enabled police to perform blood alcohol testing on an unconscious driver without needing a warrant.

Last week, a three-judge panel for the Court of Appeals also agreed no constitutional protection exists for motorists who, like Christopher Oneil Tarr, consciously decline to consent to a blood draw.

“Hyde requires us to hold that Tarr consented to the blood test by virtue of the expressed consent statute and, moreover, that he had no constitutional right to refuse the test because the officers had probable cause to believe he had committed vehicular homicide,” wrote Judge Lino S. Lipinsky de Orlov in a Feb. 24 opinion.

Tarr’s case prompted one judge on the panel to take the unusual step of calling on the state Supreme Court to evaluate whether the expressed consent law by itself is still a valid basis for obtaining blood without a warrant given recent skepticism from the U.S. Supreme Court.  

The nation’s highest court “appears to be moving away from implied consent created by statute,” Judge David Furman cautioned in a separate concurring opinion.

Tarr is serving a 40-year sentence for vehicular homicide, driving under the influence, second degree murder and reckless driving. Tarr killed Dalton McCreary in August 2016 after he sped through a red light in East Iliff Avenue in Aurora, striking McCreary and missing a second pedestrian.

Tarr denied to the responding officers that he had drunk alcohol, but they smelled it on Tarr’s breath. One officer asked Tarr to participate in a roadside sobriety test, but Tarr complained of a headache and went to the hospital instead.

At the Medical Center of Aurora, an officer read the expressed consent statute and told Tarr the only available test for his blood alcohol content was a blood draw. Tarr responded, “You’re not taking my blood.”

After learning that McCreary had died from his injuries, the officer told Tarr that there would be a forcible blood draw. Generally, the expressed consent law simply allows for a driver’s refusal to be introduced as evidence at trial. But the legislature has also decided that police can force the driver to take a blood test – even if they refuse – when there is probable cause of vehicular homicide.

Tarr responded that he was still not consenting to the blood draw, but he would also not resist. The hospital drew his blood, and a few hours later the police secured a signed search warrant. Testing showed Tarr’s blood alcohol content was nearly four times the legal limit at the time he struck McCreary.

The trial court judge allowed the blood evidence at trial, reasoning that Tarr had agreed to the warrantless search and seizure by nature of the expressed consent law. On appeal, Tarr argued that unlike in Hyde, a conscious driver who objects to a blood draw has not consented to a search. Further, there was no reason police could not have waited for the warrant before taking his blood.

The government disagreed, claiming that Tarr had no choice in the matter after the police established probable cause of vehicular homicide.

“Once the defendant gave his consent and accepted the benefits that were conditioned on giving that consent by driving on Colorado’s roads, the defendant had no constitutional right to withdraw that consent,” Senior Assistant Attorney General Brock J. Swanson wrote to the appeals panel.

The panel relied heavily on the Hyde ruling, which also involved the police’s decision to draw blood from a suspected drunk driver in Aurora. The defendant, Oliver Benton Hyde, similarly sought to suppress the blood-draw evidence, arguing the Fourth Amendment protected him from the warrantless search and seizure without his consent, given that he was unconscious at the time.

The state Supreme Court decided that Hyde had, in fact, given his consent merely by choosing to drive in Colorado.

“(T)here is no constitutional right to refuse a blood-alcohol test,” wrote Justice William W. Hood III.

That “sweeping language,” the Court of Appeals reasoned, also applied to conscious drivers who object to blood draws. The panel conceded that courts in other states have reached different conclusions about whether expressed consent laws by themselves allow for warrantless searches under the U.S. Constitution.

Nevertheless, “we apply Hyde as written and hold that, by driving a motor vehicle in the State of Colorado, Tarr consented to a warrantless blood draw in the event a law enforcement officer had probable cause to believe he committed vehicular homicide,” Lipinsky concluded.

In requesting the state Supreme Court to consider the issue, Furman pointed to a decision of the U.S. Supreme Court two years after Hyde. In that case, which involved Wisconsin’s version of the expressed consent law, a four-justice plurality decided that a warrantless blood draw was justified because of a Fourth Amendment exception for “exigent circumstances.”

The Wisconsin case involved an unconscious driver, like in Hyde, but did not hinge on whether the blood draw was acceptable because state law established the driver’s consent. Justice Sonia Sotomayor, writing for herself and two other justices, believed that an expressed consent law “cannot itself create the actual and informed consent that the Fourth Amendment requires.”

Furman believed the Colorado Supreme Court should clarify the Fourth Amendment rights of motorists like Tarr given the signals from the federal justices.

The case is People v. Tarr.