Colorado’s second-highest court clarified on Thursday that the inability of medical personnel to successfully draw blood from a suspected drunk driver amounts to an “extraordinary circumstance” excusing law enforcement from completing the blood test.

The case out of Gilpin County came to the Court of Appeals in an unusual way. Jurors acquitted Craig Spencer of felony driving under the influence, but convicted him of a lesser offense. Although double jeopardy prevented prosecutors from trying Spencer again for DUI, state law enables district attorneys to appeal questions of law.

The First Judicial District Attorney’s Office sought an answer from the appellate court about when law enforcement is excused from its obligation to provide a DUI suspect with his choice of blood or breath test. The clerk for the Court of Appeals did not have an estimate of how many similar prosecution appeals are filed in a given year, but deemed it a small group of cases.

A three-judge appellate panel clarified that law enforcement does not need to continue obtaining a DUI suspect’s blood if there are abnormal circumstances preventing medical personnel from extracting the sample.

“How many pokes would be sufficient to meet such an evidentiary bar?” wondered Judge Michael H. Berger in the panel’s July 18 opinion. “How many paramedics must attempt to draw blood? Must they attempt to draw blood from all potential entry points in a driver’s body before it is deemed medically infeasible to complete the draw?”

Under Colorado’s “expressed consent” law, motorists have automatically consented to take 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.

Motorists cannot change their mind once they have selected a type of test, but law enforcement may require them to take the other type under “extraordinary circumstances.” Such circumstances must be “beyond the control of, and not created by, the law enforcement officer.”

In Spencer’s case, Trooper Colton Hernandez pulled him over late at night and became concerned about Spencer’s intoxication. Hernandez explained the expressed consent law and Spencer opted for a blood test. Medical personnel at the jail attempted to draw Spencer’s blood.

Hernandez testified the workers tried for 10 minutes to complete the draw, but they were unsuccessful. Spencer agreed to take a breath test instead, blowing slightly above the legal limit.

After prosecutors filed charges, District Court Judge Todd L. Vriesman ordered the results of the test excluded from Spencer’s trial due to a violation of the expressed consent law. He noted the medical personnel never came to court to testify about what went wrong or why the unsuccessful blood draw was extraordinary.

“All I know is that the prosecution failed to establish that these unsuccessful attempts are extraordinary circumstances to relieve law enforcement from the obligation to do something else during that timeframe,” Vriesman said. “No medical testimony, however, was presented to show that any further attempts at the blood draw would have been unsuccessful.”

Prosecutors attempted to appeal immediately to the Supreme Court, which declined to hear the issue. Following trial, the district attorney’s office asked the Court of Appeals to overturn the legal conclusion that Hernandez’s failure to administer Spencer’s choice of test violated the expressed consent statute.

Prosecutor Kevin E. McReynolds cited Hernandez’s testimony that a failed blood draw “rarely ever happens,” and argued the legislature never meant to require law enforcement to obtain a blood sample no matter what.

Further, because “the only other facilities that could have taken the blood sample were 55 minutes to an hour away, any reasonable effort would have caused the test to be completed outside the statutorily mandated window,” McReynolds wrote. “Failing to consider such circumstances would unduly burden rural communities, whose hospitals are usually further away and whose medical resources are already sparse.”

The appellate panel agreed an extraordinary circumstance did, in fact, preclude Spencer’s blood draw.

“The medical personnel’s inability to find a suitable vein was neither ‘created by’ nor within the control of law enforcement,” wrote Berger, a retired judge who sat on the panel at the chief justice’s assignment. “It didn’t result from mere ‘inconvenience’ or ‘a busy workload’ on the part of law enforcement or medical personnel: Trooper Hernandez followed the standard departmental procedure.”

The panel disapproved of Vriesman’s ruling, which has no effect on Spencer’s acquittal for felony DUI or his conviction for a lesser offense.

A spokesperson for District Attorney Alexis King said the office located other, similar cases across the state for which there was not yet a clear legal standard.

“This is part of what prompted our office to seek review, in order to get clearer guidance from Colorado’s appellate courts,” said Brionna Boatright, the office’s director of public affairs.

The case is People v. Spencer.