By a 6-1 decision on Monday, the Colorado Supreme Court determined state law permits police officers to obtain a warrant and forcibly draw blood from motorists who are suspected solely of driving drunk.

Although the law currently enables law enforcement to draw blood in the absence of a warrant and without motorists expressing their consent if they are suspected of four specific, serious offenses, the justices concluded the law did not need to mention what happens when police obtain a search warrant. Warrants, explained Chief Justice Brian D. Boatright, override a suspect’s lack of consent.

“Hence, the reason that the Expressed Consent Statute doesn’t mention warrants is that warrants are irrelevant to the statutory issue of consent; by definition, a valid warrant functions as an entirely independent constitutional ground for conducting a search,” Boatright wrote in the Sept. 12 opinion.

Justice Richard L. Gabriel was the lone member of the court who disagreed, arguing the legislature had clearly directed that no officer shall restrain “any person” for a forcible blood draw except in limited circumstances. He does not believe the court should disregard lawmakers’ intent, he said. 

Colorado’s “expressed consent law” deems 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 driver may refuse to take the test, but the legislature has established consequences for doing so: revocation of the driver’s license and the ability for prosecutors to tell jurors at trial how the defendant refused a test.

In addition, if officers have probable cause to suspect a motorist of having committed criminally negligent homicide, vehicular homicide, assault or vehicular assault, they may physically restrain the driver in order to get a blood, breath, saliva or urine sample.

The law only authorizes physical restraint in those four circumstances. There is no mention of what happens if the officer wants to draw blood forcibly for a different crime, and obtains a warrant to do so.

In April 2017, a Fort Collins police officer encountered Charles Raider Jr. in a parking lot with the key in the vehicle’s ignition and the engine running. Raider appeared visibly intoxicated and declined to perform roadside sobriety maneuvers. Police learned Raider was eligible for a felony DUI charge based on his history of drunk driving, and one officer obtained a search warrant to draw Raider’s blood.

Once at the hospital, and after a judge signed off on the warrant, multiple officers held Raider down to draw his blood, which revealed an alcohol concentration twice the legal limit. A jury convicted him of DUI.

But in January of last year, a three-judge panel of the Court of Appeals overturned Raider’s conviction. The legislature, it determined, had carved out exceptions that permit forced blood draws for the specific crimes listed in the expressed consent law, but nothing more.

“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, the driver may be motivated to cooperate with testing by threatened punishments but may not be forced to undergo such testing,” wrote Judge Christina F. Gomez.

The government appealed to the Supreme Court, where the justices heard oral arguments in the case earlier this year.

“If drunk drivers are placed into an exalted class of criminal suspects, which is the result of the Court of Appeals’ decision here,” warned Assistant Attorney General Brian M. Lanni, “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.”

Several members of the court shared Lanni’s view that DUI suspects should not have immunity from a search warrant. Gabriel countered that if police officers could apply for a warrant to draw the blood of every drunk driving suspect, the four exceptions in the expressed consent law would become “meaningless.”

“I fear we’re undermining what the legislature has told us,” he said.

In the majority opinion, Boatright acknowledged blood draws implicate a person’s constitutional expectation of privacy. Courts presume a warrantless search is unreasonable pursuant to the Fourth Amendment unless it falls within an established exception. Otherwise, a search based on a judicially-approved warrant is generally acceptable under the Fourth Amendment.

The expressed consent law is an exception to the Fourth Amendment’s warrant requirement because drivers have consented to a blood or breath test, the court reasoned. If they withdraw their consent and refuse a test, a search warrant is merely a different means for police to comply with the Fourth Amendment.

When police have a warrant, “consent is immaterial,” Boatright wrote.

In contrast, Gabriel believed the language of the expressed consent law is clear, and forbidding forced blood draws outside of the listed exceptions “does not result in drunk drivers receiving a free pass.” To him, the legislature had recognized the seriousness of homicide or assault by drunk drivers and had accordingly authorized the more extreme consequence of forced blood draws. For simply driving while intoxicated, lawmakers created a different set of penalties, including license suspension.

“In my view, the only conclusion to be drawn from this is that the legislature, in fact, meant to limit forced specimen draws to the four enumerated scenarios and to preclude circumventing those limits by obtaining a warrant,” wrote Gabriel.

Timothy Bussey, a criminal defense and DUI attorney in Colorado Springs, believed that unless the General Assembly changes the law, the use of warrants to obtain the blood of suspected drunk drivers will now increase.

“It remains to be seen if the prosecutors will advise officers to request warrants in refusal cases,” he said. “My best guess is that prosecutors will advise police to reserve the warrant process for felony DUI allegations.”

A representative of the Colorado District Attorneys’ Council agreed any increase in warrant use would likely be limited to felony DUIs, and that the Supreme Court majority’s interpretation aligned with prosecutors’ existing view of the law. 

The case is People v. Raider.