In a previous blog entry we covered the topic of Colorado’s Express Consent – basically, a driver’s already-stated approval to submit to a chemical test if an officer has probable cause to believe the vehicle operator is driving under the influence (DUI). Refusal to submit to testing can severely and adversely impact one’s ability to drive in Colorado. However, police also have another powerful tool besides Express Consent to obtain evidence against a DUI suspect. A search warrant. Even a disagreeable driver who does not want to provide anything to police to aid their DUI investigation can be compelled to produce evidence for the prosecution.
Colorado’s Express Consent statute is very clear – “[n]o 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” one of four offenses: criminally negligent homicide, vehicular homicide, third degree assault, or vehicular assault.[i] Seems pretty clear, right? Police cannot force a suspect to submit biological samples for a DUI investigation.
Not so fast. In a 2022 case called People v. Raider[ii], the Colorado Supreme Court found that the prohibition stated in § 42-4-1301.1(3) only applied to warrantless searches, such as those conducted under Express Consent. It does not apply to all searches, including those performed once police obtain a search warrant pursuant to the Fourth Amendment. In Raider, the driver (who exhibited obvious signs of impairment and had an extensive history of DUI convictions) refused all testing under Express Consent. The investigating officer obtained a search warrant from a judge, the suspect was strapped down at a hospital and his blood was forcibly withdrawn. The Supreme Court found this was permissible because Express Consent was an exception to the warrant requirement. It had no bearing whatsoever on a judicially authorized search warrant where consent was unnecessary.
Therefore, impaired drivers who refuse testing under Express Consent are not free and clear of searches of their bodies for biological proof of impairment. A determined officer can still obtain a body substance sample to detect intoxication via a search warrant. DUI evidence obtained pursuant to a search warrant will also complicate defending the case. Not only will an attorney have to challenge issues such as whether there was reasonable suspicion to stop the vehicle and conduct a DUI investigation, but he or she will have to challenge the probable cause statement laid out in the search warrant affidavit as well.
[i] § 42-4-1301.1(3), C.R.S.
[ii] People v. Raider, 2022 CO 40
