Colorado’s Supreme Court justices appeared largely skeptical of the idea that police officers are forbidden from involuntarily drawing blood from a suspected drunk driver, even if there is a court-approved warrant to do so.

During oral arguments on Thursday, the court explored the legislature’s intentions in enacting the “expressed consent law,” which established that motorists, just by using Colorado roads, have consented to a blood or breath test if a police officer has probable cause to suspect them of driving under the influence or driving while ability impaired. A refusal to take a test can be used against a person as evidence of guilt and results in the suspension of their driver license.

However, the expressed consent law also allows police to forcibly draw a blood or breath sample under limited circumstances. “No law enforcement officer shall physically restrain any person,” the law says, unless there is probable cause for four specific and serious crimes, none of which is DUI alone. The question now before the justices is whether law enforcement may obtain a search warrant and override that general prohibition on physical restraint.

“Under my interpretation, could the police do that in every case? The answer is yes. And I’ll go further to say they always could have done that,” Assistant Attorney General Brian M. Lanni argued.

Charles Raider Jr., the defendant in the case who was subjected to a forced blood draw and subsequently convicted of DUI, found a sympathetic ear from Justice Richard L. Gabriel.

“They took Mr. Raider to the hospital, put him in four-point restraints, held him down and took his blood, for a guy who basically was asleep in a parking lot,” Gabriel observed. “That seems to be inconsistent with what the legislature said.”

One night in April 2017, a Fort Collins police officer came across Raider parked in a parking lot with the key in the vehicle’s ignition and the engine running. Raider had bloodshot eyes, slurred speech and smelled of alcohol. He refused to perform roadside sobriety maneuvers or take a blood alcohol test, even after being told of the expressed consent law.

Police learned that Raider had multiple prior DUI convictions and took him to a hospital. Simultaneously, one officer obtained a warrant for a blood draw, writing that there was probable cause of a felony DUI offense and that the evidence would be “in the defendant’s blood stream.”

After a Larimer County judge approved the warrant, hospital staff and officers restrained Raider, held him down and drew his blood. His blood alcohol content was 0.188, more than twice the legal limit. A jury convicted him of DUI and the trial judge found he had at least three prior DUIs, which elevated his conviction to a felony. 

In January 2021, a three-judge panel for the Court of Appeals overturned Raider’s conviction and ordered a new trial. The forced blood draw, the panel found, violated the expressed consent statute because the law “unambiguously prohibits” police from taking a suspect’s blood unless there is probable cause for the four specific crimes listed in the law.

“This means that, even if officers obtain a warrant, if they lack probable cause to believe a driver suspected of DUI or DWAI has committed one of the four listed offenses (criminally negligent homicide, vehicular homicide, third degree assault, or vehicular assault), they cannot force a blood draw,” wrote Judge Christina F. Gomez in the panel’s opinion.

The government appealed the decision and asked the Supreme Court to reverse. Lanni predicted dire consequences for public safety if police could not obtain evidence of intoxication from repeat DUI offenders, even with a valid warrant.

“If drunk drivers are placed into an exalted class of criminal suspects, which is the result of the Court of Appeals’ decision here, then absolutely drunk drivers are not going to have any incentive to cooperate, especially the most serious offenders, which are the drivers who are extremely intoxicated and drivers who are recidivist offenders,” he said.

Laura Harvell, a Grand Junction attorney representing Raider, countered that this was the first instance she had seen of a warrant for a DUI-related blood draw. In reality, she explained, a refusal to take a blood or breath test is damning for a defendant at trial.

“The legislature specifically spoke to the circumstances in which a law enforcement officer may physically restrain a person and extract blood. And they have not provided any sort of qualifying language, such as ‘unless a warrant is obtained’,” Harvell argued.

Several members of the court pushed back against Harvell’s assertions that the legislature intended to prohibit warrants from playing a role in DUI cases. Justice Maria E. Berkenkotter, echoing a point from Lanni, observed that when the legislature enacted the expressed consent law nearly four decades ago, it was not possible to quickly obtain a search warrant.

“Unless you crashed into the courthouse and had a typewriter with you, you couldn’t get a search warrant. Doesn’t that matter?” she asked.

Justice Carlos A. Samour Jr. asked Harvell point-blank why a DUI case would be exempt from a search warrant, in terms that also paralleled the government’s argument.

“What is it about DUI or DWAI suspects that you think entitles them to be immunized from a court order, including a search warrant?” he said. “No other suspect would be entitled to that.”

Gabriel appeared to be the lone member of the court who was inclined to believe Raider’s argument, based on the strong language in the expressed consent law prohibiting physical restraint.

“How is it not the case then that in every case, police officers just get a warrant and completely eradicate that provision? It is extremely easy to do a forced blood draw in every case,” he said. “Just get an electronic warrant in five minutes, ten minutes and have at it.”

The law’s list of four specific crimes in which a forced blood draw is acceptable would become “meaningless,” Gabriel added. He also addressed Lanni’s characterization that a decision in Raider’s favor would insulate drunk drivers from criminal consequences if they refuse to take a blood test.

“You said it’s ‘exalted status’ for DUI offenders. I respectfully disagree. The legislature has said what happens to a DUI offender when they don’t cooperate,” Gabriel said, referencing the loss of a driver license and the use of a refusal as evidence. “I fear we’re undermining what the legislature has told us.”

Other states’ courts have interpreted similar drunk driving laws, some of which specifically mention search warrants. The rulings have produced a mixture of directives forbidding or endorsing forced blood draws.

Justice Monica M. Márquez pointed out that the Fourth Amendment, which generally prohibits warrantless searches and seizures, allows for blood draws with a warrant, even given the Colorado legislature’s chosen method of enforcing DUI laws.

“You’re encouraging drivers to cooperate by setting up these disincentives – loss of a license, admission of refusal evidence. But none of that seems to take away the backdrop of the availability of a warrant to conduct the same search,” she said. “That opportunity existed before this statute ever existed. I don’t understand why it doesn’t continue to exist even against the backdrop of this statute.”

Because, answered Harvell, the legislature has not specifically allowed for the use of a warrant.

“Why would it need to? The whole scheme concerns warrantless searches,” Márquez said. “Why would it need to refer to warrants?”

The case is People v. Raider.