Right to Choose a Test Under Colorado's DUI Law

The Nechleba Law Firm handles many kinds of cases, and DUI is no exception. Recently, I was retained as co-counsel and as a ghostwriter for various firms to help fight out a particularly persistent legal issue born from the decision by a select handful of Colorado law enforcement agencies to discontinue the option of breath testing for suspects arrested under suspicion of DUI.

Traditionally, Colorado's laws provide that once an individual is arrested under suspicion of DUI, that individual is given a choice of tests--a blood test, or a breath test. Whatever test chosen is the test police must provide. However, like all things legal, there are certain times where that is not strictly correct. For example, if you choose a breath test, but then change your selection to blood afterward, there is no harm in the police accommodating that request even though they're not supposed to. Another example is when you select a breath test, but you're simply not capable of taking one because of individual physical limitations (injuries, illness, disease, physical infirmity/incapacity, etc.). Another example would be selecting one of the testing options, but there are "extraordinary circumstances" that preclude its availability at that time. In each of these scenarios, your test selection can be changed without issue or harm. There are also instances built into the law where you have but one option to begin with instead of a choice between blood or breath testing. This would include times where you were taken to a hospital to have injuries looked at; you would be required to do a blood test because hospitals don't house breath testing devices. If the police reasonably suspect you're under the influence of drugs or a combination of drugs and alcohol, for example (we call that "polysubstance" theories of impairment), you can only do a blood test. If you are involved in an accident that seriously injures someone else or kills another person, then the police can force a blood draw on you. Finally, if you're dead or unconscious, the police MUST draw your blood.

When COVID-19 first hit, I candidly felt like it'd be nothing more than a very long tornado drill (we don't get many tornadoes out in Colorado, but growing up in Illinois, it was kind of a way of life). In my mind, I couldn't conceive beyond a couple days out of the office. But as days turned into weeks and weeks turned into months, I was summarily proven wrong. The fear of infection spread as fast as, if not faster than actual infection. Personally, I grew very concerned for the health of my family--some of whom suffered from major lung issues that could actually prove fatal.

In the end, we all had fears, we were operating with a bit of limited information, and we all looked to adapt in order to protect ourselves. While anecdotally it seems that the frequency of DUI's went down (bars closed, everyone hunkered down rather than hung out with friends and family), a number us in the criminal defense bar started noticing something peculiar: law enforcement agencies decided that they were not going to do breath tests for an unspecified period of time. I say 'peculiar' because whenever anything departs from the ordinary course of things, we attorneys always want to examine why that is, and if it is allowed--that's our job. What we know with absolute certainty is that the Colorado Department of Health and Environment (the CDPHE) regulated the operation and safety standards of the breath testing machines used by the police. In fact, (and as its title advises), CDPHE is THE authority regarding Colorado's matters of public health and environment, including containing infectious disease. Looking into matters, the lot of us found that CDPHE did not take the breath machines offline; they actually went as far as to release a memo in March of 2020 that advised law enforcement agencies that the machines were safe, and some additional steps they could take just in case to protect their own health and welfare. To reiterate, this was memo from the agency that regulates the standards and conditions of breath testing, and is responsible for addressing matters of public health. Despite this declaration of policy, however, a plethora of Colorado law enforcement agencies still decided, unilaterally, to stop providing breath tests out of fear of their officers' health and the welfare of the people kept in their custody. Legal positions aside, this is both sad and scary when the implications are unpacked. It's sad because it's clear that law enforcement agencies (or at least, those who run them), do not have confidence or faith in the expertise of CDPHE, despite it being the point and purpose of that department. It's scary because at the end of the day, law enforcement agencies are literally picking and choosing what laws they want to follow.

It may not seem like this is a big deal, but inter-agency and intra-agency obedience is critical to a functioning government. There is a reason why the IRS doesn't regulate what foods are safe to eat. There is a reason why the nuclear regulation commission doesn't act as meter maids. There is a reason why the Secret Service doesn't arbitrate union labor disputes. Each agency has a purpose and scope; when the U.S. Patent and Copywrite Office decides its mission is to run the Coast Guard, well... we can say the wheels are well off the wagon at that point. The purpose of law enforcement is to pull alleged law breakers off the street and place them into the judicial system in order to stand accountable for their actions. To hold someone accountable truly depends on how the investigation unfolded. Though it may not occur to the layperson, whether you're subject to a chemical test actually implicates your constitutional right to be free from an unreasonable searches under the 4th Amendment.

Historically, the Colorado Supreme Court was blunt about there not being any rights to refuse testing or choose which test you're subject to; in a 1986 decision, it boldly declared that the option of refusing or choosing were just statutory rights--and therefore weren't rights at all. Brewer v. Motor Vehicle Div., Dep't of Revenue, 720 P.2d 564, 569. However, that position has not remained static in the 35 years following the decision. The Colorado Supreme Court determined in 2007 that trial courts could not be permitted to use chemical test results which were obtained through erroneous statements of the law and consent that was otherwise coerced from suspects. Turbyne v. People, 151 P.3d 563. The idea of 4th amendment protections found its way into the civil administrative realm in 2007 as well--finding direct application to administrative cases brought forth by the DMV. Bradt v. Colo. Dep’t. of Revenue, Motor Vehicle Div., 178 P.3d 1250 (Colo. App. 2007). The Colorado Supreme Court reconfirmed its position regarding suppression of tests that were not consented to voluntarily approximately three years later. People v. Null, 233 P.3d 670. The Supreme Court of the United States eventually weighed in six years after that, explicitly ruling that chemical testing did in fact implicate federal rights under the 4th amendment. Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). The Colorado Supreme Court used that decision to support rulings in two cases the following year. People v. Hyde, 2017 CO 24; People v. Simpson, 2017 CO 25. Beyond just "staying in your lane" and respecting the authority and expertise each regulatory body possesses, there are individual rights that cannot be ignored--that, ultimately, is where I see practical problem for most decision-makers.

It goes without saying that the police mustn't stop policing and fighting DUI, and it's understandable that they have their reservations about the safety of breath testing. But that doesn't mean they have the authority, by law or regulation, to scrap one-half of the investigation and prosecution process. It doesn't raise their level of scientific expertise on pathogens and contamination to rival the scientists that populate the CDPHE. And it doesn't mean that police can, whether knowingly or ignorantly, threaten the sanctions associated with refusing a chemical test when a person simply doesn't want to submit to blood testing, or agrees to one erroneously believing that a blood test is their only option.

One of the Court's primary purposes is to ensure that when the government takes adverse action against an individual, they did not do so by means that either violate the law or the rights every individual possesses. They correct the course of the ship to ensure it isn't veering off course. What that means on a practical level is (depending on the situation) dismissal of the case for failure to gather evidence that could have demonstrated innocence, or throwing out the evidence that the State wants to use to prove a person's guilt. Those are difficult orders to issue as a judge, and I can tell you that none are comfortable with mass dismissals or suppression orders, but once in a blue moon when the error is big enough, that's what has to happen. For over half a decade, I've had a hand in shaping DUI decisions either as a former administrative law judge or as a defense attorney. It's not often that something bigger like this rears its head, but when it does, it's important to fight out the issue. I am doing my part through my own firm, as a ghostwriter/co-counsel for other firms, and as an elected member of the board of directors for the Colorado Criminal Defense Bar. If you're facing a DUI out of Colorado, consider giving the Nechleba Law Firm a call. We are ready, willing, and able to assist you through every stage of your proceedings and provide the absolute best legal defense you can find.