It can’t be denied that the Supreme Court of the United States’ decision in McNeely is making an impact in Colorado, even if that impact is slight and apparent in only the rarest and most serious of cases. This June, the Supreme Court of Colorado announced its decision in People v. Schaufele, which affirmed a trial court’s order suppressing evidence of a defendant’s involuntary, warrantless, blood draw. In doing so, the Court found (by a plurality of three Judges) that the trial court correctly followed McNeely when it considered the totality of the circumstances and decided that exigent circumstances were not present to justify this blood draw. The same three Judges also declined to adopt the modified per se rule proposed by Chief Justice Roberts in his concurring and dissenting opinion in McNeely. In other words, the Supreme Court of Colorado made it clear that they are going to adopt the holding in McNeely , much to the chagrin of local prosecutor’s offices, who would prefer that Colorado adopt the modified per se rule proposed by Chief Justice Roberts yet rejected by a plurality of this nation’s highest court.
Great news, right? Yes…and no. McNeely established that the natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases. Id. In Schaufele, the defendant was alleged to have been operating a motor vehicle, under the influence of alcohol, which was involved in an accident, causing injuries to both himself and other people. While the defendant was at the hospital, unresponsive, an involuntary (as defendant was unable to respond to requests for a test) blood draw was conducted, by a nurse, without a search warrant. The problem with Schaufele lies in the fact that injuries were present, and the defendant was charged with vehicular assault. Colorado Appellate Courts and lawmakers have long been proponents of involuntary blood draws in cases involving death or injury. C.R.S. 42-4-1301.1(3), as currently written, gives law enforcement permission to institute a forced blood draw on a driver when they have probable cause to believe the driver committed criminally negligent homicide, vehicular homicide, assault in the third degree, or vehicular assault. Recently (but prior to McNeely and Schaufele), in People v. Smith, a Supreme Court of Colorado case from 2011, the Court held that law enforcement was permitted to perform a forced blood draw on a driver when probable cause existed to charge the driver with vehicular assault-alcohol. Id., 254 P.3d 1158. The Court in Smith did, however, point out that when performing a warrantless forced blood draw on a suspect, the constitutional limitations outlined in Schmerber v. California (exigent circumstances must exist that make obtaining a search warrant before the blood draw impractical) still applied. Schmerber 384 U.S. 757 (1966). In other words, the ruling in Schaufele, a case involving an injured victim, affirms the policy already set in Smith and does nothing to recognize the majority of Colorado drivers suspected of being under the influence who are pulled over, fully conscious, told of the Colorado Express Consent Law, and are eventually coerced into waiving their Fourth Amendment rights and submitting to a test that could ultimately lead to their conviction. In determining if exigent circumstances existed that justified the blood draw in Schaufele, the trial court noted that the Fourth Amendment of the United States Constitution prohibits blood draws unless (1) a warrant is present, (2) exigent circumstances exist that would make the obtaining of a search warrant impractical, or (3) a warrant is waived because the subject of a search provides express consent. Therein lies the rub.
The majority of Colorado drivers suspected of being under the influence of alcohol and/or drugs will submit to a test of their blood alcohol/drug content after being read, or told of (or, more accurately put, warned of) the Colorado Express Consent Law. Colorado’s express consent statute provides, in pertinent part, “A person who drives a motor vehicle upon the streets and highways…shall be required to take and complete… any test…of the person’s breath or blood for the purpose of determining the alcoholic content of the person’s blood or breath when so requested and directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of…DUI, DUI per se, DWAI, habitual user, or UDD.” C.R.S. § 42-4-1301.1(2)(a)(I). In other words, consent to a test is presumed (as the express consent advisement is usually phrased as a choice between two tests) unless a driver outright refuses to complete a test. If that is the situation, law enforcement officers will politely inform the driver (if they haven’t already warned him) of the consequences associated with refusing to ‘choose’ a test, such as the fact that a refusal will result in a driver’s license being suspended for one year for a first violation, in an attempt to ‘convince’ a driver to ‘choose’ a test.
When a Colorado driver suspected of being under the influence is given the express consent advisement and ‘agrees’ to take a breath or blood test to determine his blood alcohol content, waiving his right to refuse a search under the Fourth Amendment, that ‘agreement’ is rarely, if ever, consensual. Rather, it’s a compelled search. A compelled search that, we argue must be supported by a warrant (that rarely, if ever gets applied for) or exigent circumstances (that rarely exist) in order to be valid.
For anyone to consent to a search, including a search of their blood or breath, the consent must be unambiguous and voluntarily given. People v. O’Hearn, 931 P.2d 1168 (Colo. 1997). Coercion or duress, whether express or implied, eliminates a suspect’s consent to search. Schneckloth v. Bustamonte, 412 U.S. 218 (1973). Whether someone’s consent to search is voluntarily given depends on whether the consent “was the product of an essentially free and unconstrained choice” and not the result of circumstances that “over[bore] the consenting party’s will and critically impair[ed] his or her capacity for self-determination.” People v. Magallanes-Aragon, 948 P.2d 528, 530-32 (Colo. 1997).
In Colorado, the very nature of the express consent statute establishes a system in which drivers are required to take a breath or blood test when they are directed by law enforcement. Officers warn drivers that under the Colorado Express Consent Law, if they don’t comply with the officer’s request (often times phrased as a demand or order) for evidence, their licenses will be suspended for a year (for a first violation). The express consent advisement is given after drivers suspected of being under the influence are arrested, placed into custody, and at times after they have been transported from the scene of their arrest to a police station or holding area, not exactly like talking to an officer on one’s front porch. As such, law enforcement is conducting compelled searches under the express consent statute, compelling drivers to waive their Fourth Amendment rights and be subjected to searches without warrants or exigent circumstances. Compelled blood testing “implicates an individual’s most personal and deep-rooted expectations of privacy.” McNeely (internal citations omitted) yet runs rampant in Colorado.
If the ‘consent’ given by a driver to test his breath or blood under the express consent statute is, in fact, nonconsensual or the product of coercion, then an officer must have a warrant, or exigent circumstances must be present, to justify this search. Tragically, these coerced waivers of one’s rights via express consent almost always hold up in Court, and have for several years. In 1971 the Supreme Court of Colorado issued its ruling in People v. Brown, which held that the implied consent law (as it was in 1971) is not unconstitutional and does not enforce warrantless searches and seizures. Id., 485 P.2d 500, 504. In making their decision, the Court reasoned that, although the taking of blood is an intrusion of a person and a search within the meaning of the Constitution, such a search is not so unreasonable that it rises to a violation of the Fourth Amendment. Id. The Courts holding in Brown, which is still ‘good’ law, has found ample support over the years and continues to have an impact today. See People v. Bowers, 716 P.2d 417 (Colo. 1986)(holding that the constitutional prohibition of unlawful searches and seizures and the constitutional privilege against self-incrimination are not violated when a police officer requires a driver to submit to an alcohol or breath test, effectively separating express consent from consent under the Fourth Amendment)(emphasis added).
McNeely held that the natural reduction of alcohol in the bloodstream over time does not provide a per se exigent circumstance “that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.” Id. at 1556. In other words, the taking of a driver’s blood or breath for use in a driving under the influence of alcohol proceeding constitutes a search under the Fourth Amendment and the individual being requested to submit to the search has a Constitutional right to refuse (without being forced or threatened in anyway), absent a warrant or exigent circumstances. Defense attorneys throughout Colorado are optimistic that the above language from McNeely, which expressly states that the warrant requirement under the Fourth Amendment applies to blood testing in DUI cases, will start the process of overturning the precedent set regarding express consent in Brown and Bowers.
The holdings in McNeely, Schaufele, and Riley v. California (a very recent Supreme Court of the United States decision holding that the police generally may not, without a warrant, search digital information on a cell phone seized from an individual who has been arrested) provide hope for the future. The highest courts in this land are making it clear that law enforcement needs to change the ‘perform a search now, apply for a warrant later (if ever)’ policy that has become so prevalent and start getting warrants before instituting searches. Further, the dicta in McNeely, discussing advances in technology and how obtaining a warrant today if far easier than it was years ago, is very promising. When push comes to shove, the McNeely dicta is correct. In this day and age, with the resources law enforcement has, what constitutes an exigent circumstance? Search warrants can be typed out on a computer in a squad car (using a boiler-plate search warrant form) emailed/faxed to an on-call judge, and then returned to a law enforcement officer the same way. What, outside of possibly law enforcement incompetence, implied in Schaufele, (“after admitting their lack of experience with expedited warrants, the officers speculated that obtaining an expedited warrant would have taken anywhere from one to four hours. Id. at paragraph 11) constitutes ‘exigent circumstances?’ Only time will tell.
The average Colorado driver accused of being under the influence, and nothing more serious, will probably never be subjected to a forced blood draw (in the literal sense). He will either be warned about the Colorado Express Consent Law and subsequently be ‘persuaded’ to submit to a test, or refuse to submit to a test, an action that WILL be used against him in Court. In order to perform a warrantless blood draw in a driving under the influence case, either exigent circumstances must be present preventing the completion of a warrant, or a valid waiver (absent any coercion) must be given by the suspected intoxicated driver. As stated above, the very nature of the Colorado Express Consent Law promotes invalid waivers of Fourth Amendment rights by the use of coercive actions. While McNeely and Schaufele were no doubt victories for fans of the Constitution, the Colorado Express Consent Law and its propensity to compel driver’s to waive their Fourth Amendment rights through less than genuine means presents a daunting obstacle that looms large. We have yet to see a case that applies the standard set in McNeely to a driver coerced into a blood draw/breath test via express consent, but we anxiously await one. It’s been said that coercion at all is coercion indeed, a phrase that rings true time and time again when express consent is read to a Colorado driver. If you or someone you know has been charged with a DUI in Colorado, it is imperative that you seek counsel immediately. The Orr Law Firm is Colorado’s Premier DUI Defense Firm and is here to help you in this difficult time. Please give our office a call to obtain a Free Consultation and to discuss how we can help defend you and protect you from overzealous prosecution.