In the wake of 2013’s Missouri v. McNeely decision, new channels have emerged for challenging state laws related to the refusal of chemical tests. McNeely overturned prior precedent by holding that the dissipation of alcohol in the bloodstream did not categorically meet the exigent circumstances exception to the Fourth Amendment’s warrant requirement. The practical effect of the case’s outcome is that police must now obtain a warrant in most situations in order to force a DUI suspect to submit to a blood draw. Citing advances in technology that have streamlined the telephonic warrant application process, the court ruled that absent other exceptional circumstances, it was not unreasonable to require law enforcement to obtain a warrant to perform a forcible chemical test.
The New Challenge: Implied Consent
Most states still have what are generally known as “implied consent” laws. In Colorado these laws are known as express consent laws, but are not substantially different than in other states. These laws declare that by using the roads in a state a person has implicitly or explicitly waived his or her right to refuse such a test and impose a range of civil and criminal penalties on persons who do refuse. In some states a refusal is deemed to establish an admissible presumption of guilt in the underlying DUI charge. In others (like Colorado), a refusal results in the immediate and automatic revocation of your driver’s license. In still others, a refusal is deemed a separate and independent crime.
What all of these laws have in common is that they impose a punishment on an individual for exercising their Fourth Amendment right, as articulated by the McNeely case. For this reason, three consolidated cases are being heard (two from North Dakota and one from Minnesota) challenging different aspects of these types of laws.
The three cases due to be heard later this term all involve DUI suspects who refused (or attempted to refuse) chemical tests. All three cases broadly frame the issue as whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test. In each case, however, the facts are slightly different, reflecting different issues.
Two cases involve convictions of the separate crime of refusing to take a test (one a breath test and the other a blood test). The third case involves the validity of the civil penalty of a driver’s license suspension for refusal.
Implications for Colorado’s Express Consent Law
Colorado’s express consent law (codified at C.R.S. 42-4-1301.1) requires all DUI suspects to submit to either a blood, breath, urine, or saliva test. In Colorado the term “express consent” is used rather than “implied consent” because the language of the statute in this state: “Any person who drives any motor vehicle upon the streets and highways and elsewhere throughout this state shall be deemed to have expressed such person’s consent to the provisions of this section.” In equating the act of driving with the granting of consent, it means the same thing as what most state laws mean when they refer to implied consent.
In Colorado failure to comply with a chemical test is not a separate criminal offense, but it does result in the suspension of driving privileges. Perhaps more importantly, a refusal is deemed admissible evidence against a person in the underlying DUI case. Per C.R.S. 42-4-1301(2)(d):
“[T]he refusal to take or to complete, or to cooperate with the completing of, any test or tests shall be admissible into evidence at the trial, and a person may not claim the privilege against self-incrimination with regard to admission of refusal to take or to complete, or to cooperate with the completing of, any test or tests.”
The same statute provides that the results of an involuntary blood test are admissible. For this reason both the 4th and 5th amendment interests addressed in the McNeely case are implicated in Colorado’s express consent laws because although refusal does not constitute a separate crime, it does constitute:
- A civil violation with the penalty of losing one’s driver’s license,
- Admissible evidence in the underlying DUI charge, and
- Has the effect of making forced chemical tests admissible regardless of the warrant requirement.
If the Supreme Court’s ruling invalidates the statutes analyzed in the cases discussed above, it will also undoubtedly call into question some of the effects of Colorado’s express consent laws. A ruling for the appellants would invalidate the driver’s license suspension provision (unless it decides to rule differently on the issue of civil penalties and criminal penalties, which is a possibility). A favorable ruling could also call into question the evidentiary presumptions created by the refusal laws. Because the court has made clear that a fourth amendment interest is at stake in these cases, if it further declares that exercising of that right cannot be a crime, one could logically argue the next step: that the exercise of that right cannot be used as evidence against the defendant. That may be another debate for another case, but it is now a very real possibility that the law could begin moving in that direction.
Contact a Colorado DUI Attorney Today
If you have been arrested for DUI, you have rights, regardless of what the government’s agents try to tell you when they arrest you. The DUI specialist attorneys at Tiftickjian are here to fight to protect your rights. We stay on the cutting edge of DUI law, including all related procedural and technical matters, so that we can build your best defense. Contact us today.