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People v. Hedrick10/25/1976
Certiorari to the district court of Jefferson County to review a ruling concerning the constitutionality of the Colorado statute and Department of Health rules and regulations dealing with the Implied Consent Law, section 42-4-1202, C.R.S. 1973.
At a hearing in the Jefferson county court, defendant's motion to suppress the results of a breath test was granted. The court held that defendant wrongfully had been denied an opportunity to secure an independent test of the breath sample. On appeal by the district attorney, the Jefferson County district court affirmed the ruling, holding that the failure to preserve the breath sample was a denial of due process. We reverse.
Defendant was stopped by an Arvada police officer, arrested, and charged with driving under the influence of intoxicating liquor, in violation of section 42-4-1202(1)(a), C.R.S. 1973. Defendant elected to take a breath test. Nearly three months later, he made a motion to produce the breath sample, alleging that such evidence was vital to the preparation of a proper defense. This motion requested that in the event the prosecution was unable to produce the sample, all evidence and testimony derived therefrom be suppressed. The district attorney did not produce the
requested breath sample, and a suppression hearing was held. Neither defendant nor the prosecution presented any evidence of the type of machine used in administering the test. The only testimony was from the defendant, who stated he had freely chosen the breath test and testified, inter alia : "Well, I don't feel 1.28 was under the influence. I don't feel like I was under the influence, so I don't think the test was right."
I.
The option of tests offered to defendant was made pursuant to the statute, the relevant section of which reads, as follows:
"(3)(a) Any person who drives any motor vehicle upon a public highway in this state shall be deemed to have given his consent to a chemical test of his breath, blood, or urine for the purpose of determining alcoholic content of his blood, if arrested for any misdemeanor offense arising out of acts alleged to have been committed while the person was driving a motor vehicle while under the influence of, or impaired by, alcohol. If such person requests that the said chemical test be a blood test, then the test shall be of his blood but, if such person requests that a specimen of his blood not be drawn, then a specimen of his breath or urine shall be obtained and tested, the election to be made by the arresting officer."
It can be seen from the statute that the people have no duty to give the defendant any chemical test. This court held in People v. Culp, 189 Colo. 76, 537 P.2d 746 (1975), that "due process principles do not require the State to offer a chemical test to the defendant." This court quoted from State v. Reyna, 92 Idaho 669, 674, 448 P.2d 762, 767 (1968):
"'To hold otherwise would be to transform the accused's right to due process into a power to compel the State to gather in the accused's behalf what might be exculpatory evidence. In this case, the State produced testimonial evidence of intoxication, but it had no obligation to obtain for appellant what he speculates might have been more scientific evidence of sobriety. The state may not suppress evidence, but it need not gather evidence for the accused.'"
Pursuant to section 42-4-1202(3)(b), C.R.S. 1973, the Colorado Department of Health issued rules and regulations relat
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