A new trend in Colorado DUI cases is police applying for and obtaining a warrant for a blood draw when a driver refuses testing. Previously, police obtained warrants in vehicular assault and vehicular homicide cases where a death or serious bodily injury occurred in a DUI accident. Based on the Colorado Supreme Court’s holding in People v. Raider, 2022 CO 40 (Colo. 2022), police are now obtaining warrants in all DUI cases where a person refuses the breath or blood test, regardless of whether an accident occurs.
Not all agencies and counties are obtaining search warrants at the time of publication. Douglas County and Arapahoe County law enforcement agencies commonly obtain blood draw warrants in misdemeanor DUI cases, while Adams County and Jefferson County usually do not. Obtaining a warrant requires the arresting officer to write up a probable cause statement detailing why the driver was contacted and how the officer believes he or she established cause to arrest the driver for DUI or DWAI and request a chemical test. The on-call judge then receives and reviews the application for the search warrant and determines whether there is probable cause to believe the driver was driving impaired by alcohol or drugs. If the judge makes this probable cause determination, he or she signs the warrant authorizing the police officer to obtain the driver’s blood sample.
People v. Raider – Expanding the State’s Right to a Driver’s Blood
In People v. Raider, the Colorado Supreme Court addressed a significant conflict between Colorado’s Express Consent law (C.R.S. 42-4-1301.1) and police’s ability to obtain a DUI suspect’s blood with a search warrant. The Raider case raised the legal issue of whether a blood draw obtained through physical restraint pursuant to a search warrant violated the statutory protections of Colorado’s Express Consent law. The Court ultimately ruled that a search warrant authorizing a forced blood draw does not violate a driver’s statutory protection afforded by Colorado’s Express Consent statute.
Raider’s Larimer County Felony DUI trial
On March 31, 2018, Charles Raider was stopped by the Fort Collins Police Department on suspicion of DUI. Upon contact, officers noted signs of impairment such as bloodshot eyes and the odor of an alcoholic beverage coming from the driver’s breath. Raider was arrested and advised to choose a chemical test based on Colorado’s Express Consent law. He refused the test but was still transported to a hospital for blood testing. At the hospital, Raider declined to submit to the blood draw. The arresting officer applied for and obtained a search warrant from a judge authorizing the search to obtain Raider’s blood. The warrant permitted using “reasonable force” to obtain a blood draw. Raider physically obstructed the blood draw, so the hospital staff placed him in restraints, and officers held him down while a phlebotomist drew his blood. Ultimately, his blood was tested and over the legal limit, and Raider was charged with felony DUI due to his criminal history.
At his trial in the Larimer District Court, Raider’s attorneys moved to suppress the blood results, arguing the use of physical restraint to obtain the sample violated Colorado’s Express Consent law. The trial court denied the motion, ruling the warrant was constitutionally valid and authorized the use of force. A jury ultimately convicted Raider of felony DUI.
The Court of Appeals Agrees with Raider’s Suppression Argument
On appeal, the Colorado Court of Appeals reversed the trial court’s ruling and held that the forced blood draw violated Express Consent because the statute prohibits police from using physical restraint to compel a blood test except in DUI cases involving serious bodily injury or death under C.R.S. 42-4-1301.1(3). The Court of Appeals reasoned that this limitation remained applicable even when a warrant was obtained. The People petitioned for certiorari to the Colorado Supreme Court.
The appellate issue before the Colorado Supreme Court was whether Colorado’s Express Consent law prohibits law enforcement from using physical force to execute a search warrant for a driver’s blood in cases not involving vehicular assault or homicide.
The Colorado Supreme Court Holds Express Consent Does Not Apply to Blood Draw Warrants
The Colorado Supreme Court reversed the Court of Appeals’ decision. In its opinion, Justice Márquez reasoned that the Express Consent law does not prohibit police from using reasonable physical measures to obtain a blood sample when under the authority of a valid judicial warrant. Justice Márquez reasoned that the Express Consent statute does not mention warrants and thus does not supersede them.
The Raider decision focused on the distinction between statutory rights and constitutional rights. While the legislature may enact procedural safeguards like Colorado’s Express Consent law, it may not rescind constitutional rights or judicially authorized procedures absent a clear intent. A valid search warrant, based on probable cause and issued by a neutral judge, carries constitutional weight that the Express Consent Statute cannot override unless the statute explicitly says so. Allowing the Express Consent law to override a search warrant would produce an inconsistent result. Police officers could not execute a constitutional search because the offense did not fall within a statutorily defined category. The Supreme Court concluded this would be inconsistent with constitutional principles and statutory interpretation.
Ultimately, the Colorado Supreme Court held that the Express Consent law does not apply to blood draws conducted under a valid search warrant. Thus, police officers may use reasonable force to execute a blood draw authorized by a search warrant, even when the DUI does not involve an accident resulting in death or serious bodily injury. The decision ordered Raider’s felony DUI conviction to be reinstated.
The influence of the Raider decision has changed the landscape of Colorado DUI law. By distinguishing Colorado’s Express Consent law and the judicial authority of search warrants, the Supreme Court gave law enforcement a new tool in its box to prosecute DUI suspects. Now, a DUI driver may refuse a chemical test and face the administrative driver’s license consequences of a refusal, while still having the blood results used against them in the court case.