Colorado Criminal Law – Obtaining Blood Samples From Suspects In Colorado Criminal Cases – Including DUI, Vehicular Assault and Vehicular Homicide

Introduction – Because of the intrusive nature of blood tests – the piercing of the skin – the taking into custody of the subject – they are considered “searches” under Colorado law and can only be administered under carefully regulated circumstances. Here is the law.

The Law:

Blood tests cannot be administered automatically in criminal cases. Blood tests are “searches” within the scope of the Fourth Amendment and require either consent or probable cause to believe that a crime, whose elements include being under the influence of alcohol/controlled substances, has been committed.

DUI Traffic Cases

Under the DUI statute, an officer can only request a blood test when the officer has “probable cause” to believe the person was driving a vehicle while impaired by alcohol/drugs. [42-4-1301 (7)(b)(I)]

Probable cause to suspect the presence of alcohol is usually fairly straightforward (e.g., odor of alcohol, beverage containers, lack of coordination, etc.). Probable cause to suspect the presence of controlled substances is usually more difficult. Officers have to build their probable cause by observations of such things as coordination, slurred speech, presence of drug containers, lack of odor of alcohol, admissions, statements of witnesses, etc.

Observations of these types of characteristics will usually give an officer good faith probable cause to take a blood sample. Mere admissions to the use of alcohol/controlled substances are not enough. Officers must have some corroboration that the person is under the influence. In People v. Reynolds, 895 P.2d 1059 (Colo. 95), a driver involved in a one- car accident admitted to consuming three beers more than six hours before the accident. The court held that this alone, without evidence of any of the “familiar signs of intoxication,” did not constitute probable cause to involuntarily take a blood sample from the driver.

These probable cause requirements apply to unconscious/dead suspects also[42-4-1301 (7) (c)]. The fact that a party is unconscious does not excuse the officer from the requirement of having probable cause to believe that the suspect’s blood contains alcohol or controlled substances. In traffic situations, samples can be obtained from unconscious suspects pursuant to the Express

Consent Law.

Under the DUI express consent law, an arrestee has a statutory right to refuse to provide a sample of his/her blood or breath [42-4-1301 (7) (a) (11)]. Such refusal can then be used in an administrative license revocation hearing.

Criminal Code Traffic Cases

In certain specified DUI cases that involve charges under the Criminal Code, the statutes permit officers to forcibly restrain a driver to obtain a blood test, when the officer has probable cause to believe the person was driving under the influence of alcohol/drugs. Involuntary blood samples can be obtained in cases involving the following charges:

Criminally Negligent Homicide [18-3-105];

Vehicular Homicide [18-3-106 (1) (b)];

Vehicular Assault [18-3-205 (1)(b)].

42-4-1301.1(3) – Any person who is required to take and to complete, and to cooperate in the completing of, any test or tests shall cooperate with the person authorized to obtain specimens of such person’s blood, breath, saliva, or urine, including the signing of any release or consent forms required by any person, hospital, clinic, or association authorized to obtain such specimens.

If such person does not cooperate with the person, hospital, clinic, or association authorized to obtain such specimens, including the signing of any release or consent forms, such noncooperation shall be considered a refusal to submit to testing. No law enforcement officer shall physically restrain any person for the purpose of obtaining a specimen of such person’s blood, breath, saliva, or urine for testing except when the officer has probable cause to believe that the person has committed a violation of section 18-3-105, 18-3- 106 (1) (b), 18-3-204, or 18-3-205(1)(b), C.R.S., and the person is refusing to take or to complete, or to cooperate in the completing of, any test or tests, then, in such event, the law enforcement officer may require a blood test.

42-4-1301(6)(e) – Evidence acquired through such involuntary blood test shall be admissible in any prosecution for a violation of subsection (1) or (2) of this section and for a violation of section 18-3- 105, 18-3-106 (1) (b), 18-3-204, or 18-3-205 (1) (b), C.R.S.

Non-Traffic Criminal Cases

People v. Williams [557 P.2d 399 (1979)] was a case involving a shooting death. Investigating officers had taken blood and urine samples from the suspect, over her objections, shortly after the incident. The tests were conducted because witnesses had seen the suspect in a bar earlier on the day of the shooting and an officer noted a “faint smell of liquor about her” after the shooting. The Colorado Supreme Court suppressed the results of the tests because the officers lacked any “clear indication” that the suspect was intoxicated.

The court said that there was no evidence as to what she drank in the bar, how much she drank, and how long before the shooting. The court held that “the slight liquor smell on her breath may have indicated that alcohol had been consumed, but, by itself, did not clearly indicate intoxication.” Noted by the court was the fact that the officer made no observations of her demeanor that would indicate that she was intoxicated. A quote from Schmerber was cited by the court:

“The Fourth Amendment forbids such intrusions (beneath the body’s surface) on the mere chance that desired evidence may be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search.”

Considerations of US And Colorado Law In This Area

(1) Sometimes, in major felonies, two blood tests are conducted several hours apart. The famous case known generally as the Schmerber case allowed a warrantless blood test only because the alcohol soon disappears from the blood stream.

(2) In non-traffic cases, in building probable cause to take a blood test, police officers sometimes give a suspect a built in intoxication defense that he would not otherwise have had if the officer had not overstated his observations of the suspect’s demeanor.