Colorado Criminal Law – Involuntary Blood Draws In Colorado Vehicular Assault 18-3-205 – Vehicular Homicide Cases 18-3-106
Colorado Criminal Law – Involuntary Blood Draws In Colorado Vehicular Assault 18-3-205 – Vehicular Homicide Cases 18-3-106
Colorado Criminal Law – Involuntary Blood Draws In Colorado Vehicular Assault – Vehicular Homicide Cases – One of the most powerful pieces of evidence in any Colorado Felony Vehicular Assault – Homicide case – is the blood alcohol or blood drug result.
The law in this area is complex. Essentially the police, as a result of Colorado and United States Appellate case law, must obtain a warrant before they can take your blood forcibly in the investigation of Colorado Vehicular Assault and Vehicular Homicide Cases.
Here is the law as of 2015:
If the police do not have “exigent circumstances” they cannot take your blood without a search warrant. To do otherwise would be an involuntary, warrantless blood draw that is contrary to the protections of the Fourth Amendment’s prohibition against “unreasonable searches and seizures.”
The Law In Colorado On Warrantless Blood Draws
The Fourth Amendment to the United States Constitution and article II, section 7 of the Colorado Constitution – BOTH – protect a citizen’s right to “be free from unreasonable searches and seizures.” U.S. Const. amend. IV; Colo. Const. art. II, § 7;
Since a blood draw is an intrusion into the body that is the equivalent of a search of the body it is “‘subject to the protections of the Fourth Amendment.’
If the blood draw violates the Fourth Amendment, (no search warrant and no exigent circumstances (see below) then the result of a test of that illegally obtained blood is known as the “fruit of the poisonous tree” and must therefore be suppressed. The rule that requires the exclusion of the blood is called the “exclusionary rule.”
There Are FOUR Criteria That Are Applied To Determine Whether An Involuntary Blood Draw Passes Muster Under The 4th Amendment
There are FOUR criteria that are applied before such evidence can be introduced absent a search warrant… that is – where a blood draw is involuntary and warrantless.
Known as the Sutherland Tests – these FOUR tests are applied to determine when an involuntary, warrantless blood draw is justified under the Fourth Amendment based on exigent circumstances.
To summarize the Sutherland criteria – they are:
1. Probable Cause – there must be probable cause for the arrest of the defendant on an alcohol-related driving offense.
2. Relevance – there must be a clear indication that the blood sample will provide evidence of the defendant’s level of intoxication.
3. Exigent Circumstances – exigent circumstances must exist which make it impractical to obtain a search warrant, and
4. Reasonableness – the test must be a reasonable one and must be conducted in a reasonable manner.
Numbers two and four are easily established in most cases. Usually (2) the blood sample will provide important and relevant evidence of the presence or absence of a crime (exigent circumstances exist in a drunk driving accident with injuries or death case because the suspected drunk driver’s blood-alcohol content dissipates over time).
As for (4) – It is accepted that the procedures for taking blood are well established and safe.
Was There Probable Cause and Did Exigent Circumstances Exist That Justify An Involuntary, Warrantless Blood Draw?
Probable cause is very common and almost always exist.
What then are exigent circumstances?
In analyzing a search and seizure claim in this situation (an involuntary, warrantless blood draw) the issue is whether “under the totality of the circumstances” there is a justification of the blood draw based on “exigent circumstances.”
Put differently,
“the determination that a warrantless search or seizure is justified under the exigent circumstances doctrine must be based on a consideration of the totality of circumstances confronting the police officers at the time the warrantless search or seizure is made.”
The doctrine of exigent circumstances is “a flexible exception that is measured by a fact-specific reasonableness inquiry.” This covers many different fact patterns.
There are three recognized types of exigent circumstances that will justify a warrantless search.
The three situations occur when:
(1) the police are engaged in a ‘hot pursuit’ of a fleeing suspect;
(2) there is a risk of immediate destruction of evidence; or
(3) there is a “colorable claim of emergency threatening the life or safety of another.”
Colorado Criminal Law – Involuntary Blood Draws In Colorado Vehicular Assault 18-3-205 – Vehicular Homicide Cases 18-3-106
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ABOUT THE AUTHOR: H. Michael Steinberg – Email The Author at [email protected] – A Denver Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277. Attorney H. Michael Steinberg is passionate about criminal defense. His extensive knowledge and experience of Colorado Criminal Law gives him the edge you need to properly handle your case.
You must make a responsible choice for a Colorado Criminal Defense Lawyer – we encourage you to look at our firm. Over the last 40 plus years – H. Michael has mastered nearly every area of criminal law, procedure and trial and courtroom practice and he is passionate about getting you the best result in your case. He has written and continues to write extensively on Colorado criminal law and he hopes this article – – helps you in some small way. H. Michael hopes you found this page helpful – Colorado Criminal Law – Involuntary Blood Draws In Colorado Vehicular Assault 18-3-205 – Vehicular Homicide Cases 18-3-106.
Other Articles of Interest:
- Colorado State DUI and Traffic Criminal Issues
- Colorado Criminal Law – Obtaining Blood Samples From Suspects In Colorado Criminal Cases – Including DUI, Vehicular Assault and Vehicular Homicide
- Colorado State Felonies
- Colorado State Felonies – Colorado Felony Vehicular Homicide (18-3-106) and Vehiclular Assault (18-3-205)
- A Close Look At The Colorado Crimes Of Assault – First Degree -18-3-202, Second Degree – 18-3-203, Third Degree -18-3-204, and Vehicular Assault – 18-3-205
