Colorado’s second-highest court on Thursday agreed that a police department’s decision not to offer suspected drunk drivers the choice of a breath test at the outset of the COVID-19 pandemic did not violate state law.

Although it was not the first Court of Appeals ruling to address the issue, it was the first to set a precedent addressing the practice by some law enforcement agencies of suspending breath testing in 2020 due to health concerns.

Under Colorado’s “expressed consent” law, 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.

While the law permits drivers to choose the type of test, police may limit which test they can take under “extraordinary circumstances.” Those circumstances may include power outages, malfunctioning equipment or weather, but they must always be factors beyond the control of law enforcement.

Shannon Christopher Young rear-ended a car in June 2020 and an Aurora police officer asked him to perform a field sobriety test. Afterward, the officer determined she had probable cause to arrest Young and she notified him of the expressed consent law.

The Aurora Police Department had consulted with a medical professional and determined breath testing posed a COVID-19 transmission risk. Consequently, the officer asked Young to take a blood test. He refused. A jury found him guilty of driving under the influence.

On appeal, Young argued no extraordinary circumstances existed to permit Aurora to eliminate the option of a breath test. Therefore, the government violated his right under the expressed consent law to choose his test.

A three-judge panel for the Court of Appeals disagreed.

Case: People v. Young

Decided: January 4, 2024

Jurisdiction: Arapahoe County

Ruling: 3-0

Judges: Rebecca R. Freyre (author)

David H. Yun

W. Eric Kuhn

Background: Appeals court says pandemic justified denying DUI breath test to driver

“Considering the enormous toll the COVID-19 pandemic had on our society, we conclude that it constituted an exceptional circumstance,” wrote Judge Rebecca R. Freyre in the Jan. 4 opinion. “The COVID-19 pandemic was not created by, or within the control of, the DUI officer or the APD.”

The ruling was the first precedent-setting decision in a criminal case to address whether COVID-19 amounted to an extraordinary circumstance that justified the withholding of breath tests. However, a different Court of Appeals panel issued a non-precedent-setting decision in 2022 agreeing the state could revoke a person’s driver license for refusing a blood draw when breath testing was similarly unavailable.

In the first months of the pandemic, when multiple agencies opted to halt breath tests, “there had been no scientific studies about whether the risk of transmitting COVID-19 could be safely mitigated while a law enforcement officer administered a breath test,” observed Judge W. Eric Kuhn, who also sat on the panel that decided Young’s appeal.

The case is People v. Young.