Because a woman accused of driving drunk planned to argue that any intoxication she experienced was involuntary, the Colorado Supreme Court agreed on Monday that Arapahoe County prosecutors are entitled to see her post-accident medical records.

Noelle Dawn Kelley appealed directly to the state’s highest court after a trial judge ruled Kelley had “injected her physical condition” into the case by raising involuntary intoxication as a defense to her DUI and vehicular assault charges. Kelley claimed prosecutors would gain confidential doctor-patient information about her, simply for exercising her right to plead not guilty.

The Supreme Court saw otherwise. Kelley was not simply denying guilt, but asserting an affirmative defense that would justify the charged crimes. Consequently, Kelley’s claims about her physical or mental state meant she relinquished any confidentiality she had in the post-accident documentation.

“We acknowledge,” wrote Justice Maria E. Berkenkotter on June 5, “that our conclusion leaves Kelley with a difficult choice – whether to assert the affirmative defense of involuntary intoxication and disclose her records related to involuntary intoxication or, instead, to protect her physician-patient privilege by foregoing the affirmative defense.”

Although the Supreme Court handed the prosecution a potential tool for proving Kelley’s guilt, it declined to weigh in on a second question Kelley presented: Whether jurors could learn Kelley also refused an officer’s request that she release her medical records.

Officer Lloyd Johnson responded to a two-vehicle crash in Aurora on Sept. 7, 2021. Kelley was the at-fault driver, and Johnson first encountered her receiving treatment in an ambulance. He did not notice anything amiss about her condition.

At the hospital, Johnson spoke with Kelley again and noticed the odor of a “fruity-type substance” along with Kelley’s slurred speech. The signs were “consistent with what you might expect to see from somebody who was intoxicated,” he later testified.

Kelley mentioned she wanted a lawyer. Johnson then asked if Kelley would sign a form to release her medical records to Aurora police. She refused.

The prosecution charged Kelley with four counts related to driving under the influence. At a hearing, District Court Judge Eric White found Kelley’s statements to Johnson were voluntary, but ruled that jurors would not hear about Kelley’s refusal to release her records. He believed Johnson’s question, after Kelley invoked her constitutional right to counsel, was more than an “administrative” matter and was instead “improperly asked.”

The district attorney’s office requested that White reconsider, and they succeeded. In November, White issued an order siding with the prosecution on two key matters. First, he now agreed Johnson’s question about Kelley’s medical records was not an “interrogation” that is generally prohibited when a suspect invokes her constitutional right to counsel. Consequently, a jury could hear that Kelley withheld her consent.

Second, because Kelley was planning to raise involuntary intoxication – meaning an intoxicating substance was introduced into her body, affecting her capabilities, against her knowledge or pursuant to medical treatment – she could not shield relevant evidence from the hospital.

“Her own medical records following the accident are almost certainly a source of that information,” White wrote.

Kelley appealed directly to the Supreme Court. She claimed the legislature never authorized a forfeiture of doctor-patient confidentiality simply when a defendant claims they were involuntarily intoxicated. Further, just as prosecutors may not suggest defendants are guilty for exercising their constitutional rights to silence or to counsel, nor may they imply a defendant’s refusal to allow a warrantless search of their medical records means they are guilty.

The prosecution responded that any evidence supporting or rebutting the idea that Kelley was involuntarily intoxicated lies in her hospital records, so it was imperative that they be disclosed. As for the brief exchange in which Johnson asked Kelley for her records, there is “no misconduct in merely requesting a suspect’s consent to a search.”

The Supreme Court agreed with the prosecution that it was entitled to Kelley’s medical records that directly related to her potential involuntary intoxication. However, it did not consider the second issue relating to the propriety of Johnson’s further questioning after Kelley said she wanted a lawyer.

While prior precedent “might suggest that this type of evidence is inadmissible,” Berkenkotter wrote, White needed to address the defense’s precise argument first.

The case is People v. Kelley.