The Colorado Supreme Court considered on Wednesday whether an Arapahoe County judge improperly permitted prosecutors to share a misleading account of a drunk driving suspect’s arrest – making jurors believe Glen Gary Montoya categorically refused a blood alcohol test when, in reality, he changed his mind and ultimately agreed to one.

However, some members of the court noted the case likely required the answer to a more fundamental question first: Do drivers even have the ability to agree to an alcohol test after they initially turn it down?

“In looking at whether this created an unfair representation or somehow this misled the jury, it depends, right?” said Justice Carlos A. Samour Jr. during oral arguments. “It’s like, if the defendant can change their mind, then yeah, I think this created a misimpression because the jury was left with the impression that he just refused.”

Underlying Montoya’s case is Colorado’s “expressed consent” law, in which motorists have automatically consented to taking a blood or breath test if an officer has probable cause to suspect them of impaired driving. If drivers refuse to test within two hours of being stopped, the refusal can be used against them at trial and is grounds for revoking their driver license.

Montoya rear-ended a vehicle and the responding officer believed him to be drunk. After hearing about the expressed consent law, Montoya agreed to take a blood test for his alcohol level.

At the detox facility, Montoya wavered about whether to take the test, before saying, “I don’t think I’m gonna.”

Approximately 90 minutes after the accident, the officer recorded Montoya on his body-worn camera saying he refused the blood test, and that was what Montoya’s jury saw. Jurors convicted him of driving under the influence.

What they did not know, however, was that Montoya changed his mind again shortly after the refusal, and within the two-hour testing window. Then-District Court Judge Phillip L. Douglass allowed prosecutors to redact that portion of the body-worn camera footage, believing once Montoya turned down the blood draw, “he no longer has the right to take a test. That is no longer an option.”

Douglass also speculated that Montoya, who had previous DUI convictions, “may have been counseled to refuse and then say that ‘I will do it’ to make himself look good.”

The Court of Appeals reversed Montoya’s DUI conviction. The panel synthesized multiple elements of the expressed consent law to conclude that drivers are not allowed to change what type of test they choose, but changing their mind on whether to cooperate is still possible. Looking to cases that dealt with driver license revocations, the panel determined a refusal to take a test within the two-hour window depends on whether the test can still be administered in time.

The panel also deemed it wrong to shield the jury from Montoya’s final statement indicating he would cooperate after all.

“Redacting the video allowed the prosecution to stop it at the refusal,” wrote Judge Sueanna P. Johnson, “and relieved it of its responsibility to present evidence as to why Montoya’s later change of mind still nonetheless constituted refusal.”

On appeal, both the prosecution and defense agreed the Court of Appeals’ reliance on the standards for driver license revocations was inappropriate in a criminal case. However, they disagreed about whether the “rule of completeness” required jurors to know about Montoya’s final agreement to get his blood drawn.

“Defendant was welcome to get up there (on the witness stand) and testify he was actually wiling to take the test,” said Assistant Attorney General Brenna A. Brackett. 

But it is the prosecution’s burden to “not present a misleading picture to the jury,” responded Justice Richard L. Gabriel. “Why do they get to put on half the video and then say it’s the defendant’s job to put on the rest of the story?”

Members of the court acknowledged Colorado’s expressed consent law permits juries to hear evidence of refusal to show the defendant may believe he is guilty based on what the alcohol test will show. To that end, a defendant’s last-minute agreement to take a test – beyond the point when it is feasible to draw blood – could distort the reality, as well.

“If we have a repeated offender who knows about this two-hour window,” suggested Justice Monica M. Márquez, they could decline to take a test “then recant two minutes before the two-hour window closes. I worry about that kind of rule enabling some gaming of the system.”

Public defender Mackenzie R. Shields responded that the appropriate move would be for juries to weigh the credibility of the defendant’s statement, not to redact it altogether.

Samour noted Colorado’s expressed consent law explicitly prohibits drunk driving suspects from switching from a blood test to a breath test or vice versa once they make their choice. But lawmakers did not specify whether suspects were similarly barred from changing their mind about whether to take a test in the first place.

“Why wouldn’t we infer that the legislature didn’t mean to prohibit that?” he asked.

Regardless of the Supreme Court’s decision, Montoya’s felony DUI conviction will likely not stand. After his trial, the justices issued a landmark ruling altering the way in which misdemeanor DUI convictions could be enhanced to felonies based on prior offenses, as was the case with Montoya. Based on that decision, Montoya would either be retried under the new protocol or stand convicted of only a misdemeanor.

The case is People v. Montoya.