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Unless police have probable cause to suspect a drunk driver also committed assault or homicide, the law does not allow them to obtain a warrant to forcibly draw and test the driver’s blood, the Colorado Court of Appeals has decided.

“This language is clear and unequivocal,” wrote Judge Christina F. Gomez in the Jan. 7 opinion. If the General Assembly intended forced blood draws using warrants, “it could have expressly said so.”

Jeffrey A. Wolf, a criminal defense attorney in Denver, said that the practice of obtaining a warrant became more common after the U.S. Supreme Court ruled in 2013 that the Fourth Amendment’s prohibition on unreasonable searches also applies to evidence of driving under the influence.

“Not having a chemical sample does not remove the ability to apprehend a suspected drunk driver in any way,” said Wolf. “Law enforcement regularly arrest and charge suspected drunk drivers who refuse testing on a daily basis.”

Under Colorado law, anyone who drives a motor vehicle has already consented to a blood or breath test from law enforcement upon request. The officer must have probable cause to believe the driver is under the influence of drugs or alcohol. Drivers who refuse will have their licenses revoked, and that refusal may become evidence in their trial for driving under the influence.

Police may forcibly restrain motorists for the purpose of performing a test, but only if they believe the person has committed four types of crimes: homicide, vehicular homicide, assault or vehicular assault.

In the case under consideration, a Fort Collins police officer encountered Charles Raider, Jr. sitting in his parked car, with the keys in the ignition and the engine running. Raider showed signs of intoxication and the officer asked him to participate in a roadside sobriety test. However, Raider refused.

Police learned he had at least three previous DUI convictions, making him eligible for a felony DUI charge. Officers then obtained a search warrant to draw Raider’s blood. The warrant permitted the use of force on Raider, who remained uncooperative. 

Officers had to restrain him during the blood draw, which resulted in a blood alcohol content of 0.188, above the legal limit, and felony DUI charges. A jury convicted Raider, even though the defense tried to suppress the evidence from the blood draw by arguing Colorado’s expressed consent law for drivers does not allow for blood draw warrants outside of the four listed crimes.

Noting the Fort Collins Police Department’s warrant request form included the four crimes plus a check box for felony DUI, Laura Harvell, Raider’s attorney, told the appellate judges at oral argument that this was “a way of essentially circumventing those provisions of the expressed consent statute.”

“I do challenge the appropriateness and necessity of a warrant following the refusal of chemical testing that allows the government to forcibly extract blood from a citizen that it can then use in addition to a number of other pieces of evidence against him,” she added.

Judge Gilbert M. Román wondered if a person “really has a right to refuse if you just go get a warrant.” Brian Lanni, assistant attorney general arguing for the prosecution, said they did not.

In response to a question about whether curtailing the use of warrants would undermine the goals of the felony DUI law, Harvell contended that responsibility lies with the legislature to give law enforcement expanded authority to deal with suspected DUI offenders.

The three-member appellate panel agreed with her interpretation.

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

Wolf, the defense attorney, said the court’s decision instills confidence in public safety, rather than undermining it.

“If law enforcement can get a warrant to intrude so far into one's privacy as to take blood from their body, it is a bridge too far that could lead to widespread abuses of privacy rights,” he explained. “Therefore, I do not believe the public should be concerned about law enforcement being deprived of a tool to apprehend drunk drivers, but rather heartened that privacy rights are being respected and protected.”

Jennifer Knudsen, traffic safety resource prosecutor at the Colorado District Attorneys' Council, countered that the decision could have a significant impact on the collection of evidence for intoxicated driving.

"We will never know the true picture of devastation that impaired driving creates without more complete toxicology results in more cases," she said. "Thus, this is a hot topic countrywide. More evidence would allow everyone involved additional benefits in the truth-seeking process our justice system affords.

The Fort Collins Police Department did not immediately respond to an inquiry about their warrant request form in light of the decision.

The Court of Appeals panel reversed Raider’s convictions, finding the trial court should have suppressed evidence of the illegally-obtained blood test. The judges ordered a new trial.

The case is People v. Raider.

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