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People v. Kokesh6/21/1971
This is an interlocutory appeal from an adverse ruling by the trial court on Defendant-Appellant's motion to suppress as evidence a urine sample taken from her without her consent.
The defendant has been charged with two felonies: Causing a Death While Driving Under the Influence , C.R.S. 1963, 40-2-10; and Vehicular Homicide, 1965 Perm. Supp., C.R.S. 1963, 13-5-155. At the scene of the collision where the investigating officers had opportunity to observe
the actions of the defendant they made a determination -- amply supported -- that defendant was under the influence of alcohol. The officers had probable cause to arrest the defendant who appeared groggy, glazed-eyed, and had an odor of alcohol about her.
Because the defendant had sustained some injury, she was taken to the hospital in the patrol car. En route she was advised of her constitutional rights. The officer testified that subsequent to his arrival at the hospital, he asked one of the doctors in the emergency room for permission to obtain a urine sample from the defendant. The doctor directed a nurse to take the specimen. The defendant was not present at the time the officer spoke with the doctor and the doctor did not discuss the request with the defendant, nor was her consent solicited. The officer testified that he had read the implied consent form to the defendant both prior to making the request of the doctor for the sample and also after the specimen was taken but that he was unable to obtain the defendant's consent.
I.
The defendant first contends that the urine specimen was illegally seized without her consent at a time when she was not under arrest. This, she alleges, constitutes a violation of her constitutional rights as guaranteed by the Fourth, Fifth, Sixth and Fourteenth Amendments to the United States Constitution, and Article II, Section 7 of the Colorado constitution. We disagree.
In a very recent decision of this court, People v. Fidler, 175 Colo. 90, 485 P.2d 725, we fully treated a similar argument and held that under the authority of Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), there is no compulsion that there be an arrest, so long as the facts establish probable cause to make such arrest at the time the sample was taken:
"The record here does not disclose when Fidler was arrested. This is not a controlling fact under the circumstances
of this case. The patrol officer, given the facts as to the collision, the smell of alcohol on defendant's breath and the finding of the two half-emptied wine bottles in defendant's vehicle had probable cause to direct the withdrawal of the blood." Fidler, supra.
In the instant case, we conclude that the facts known to the officer and reviewed above were sufficient to constitute probable cause to require the specimen of urine from the defendant.
II.
The defendant next contends that the specimen constituted privileged information between doctor and patient under C.R.S. 1963, 154-1-7(5). This argument was likewise answered in Fidler :
"The issue raised by injecting C.R.S. 1963, 154-1-7(5) into the ruling on the motion to suppress was wholly irrelevant. * * * Whether or not the statute is a bar to the admission into evidence at the trial of the analysis of the urine sample by the doctor is purely a matter of statutory application and involves the breadth of the doctor-patient privilege as s
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