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Riley v. People12/20/2004
JUDGMENT REVERSED
EN BANC
In this case, the defendant was pulled over by an Arapahoe County Sheriff's Officer for failure to stop at a stop sign.
The arresting officer suspected that he was driving under the influence of alcohol and requested testing -- thereby invoking Colorado's "express consent" law under section 42-4-1301(7), 11 C.R.S. (2000). The express consent law provides that anyone who drives on the streets and highways of Colorado is deemed to have consented to a chemical test for purposes of determining the alcohol content of their blood or breath. The statute gives to the driver the right to chose between a blood test and a breath test. The defendant here elected a blood test rather than a breath test. The officer notified the usual service provider, but that provider was not able to respond in time to take an accurate sample. The defendant refused the officer's subsequent request to take a breath test instead of the blood test. The defendant later moved to dismiss the charge against him of driving under the influence, on the basis that the arresting officer had failed to comply with the express consent statute. The county court denied the motion, holding that exceptional circumstances amounted to good cause for noncompliance with the statute. The defendant was ultimately convicted of driving while ability impaired, and appealed his conviction to the district court, again contending that the charge should have been dismissed for failure to comply with the statute. The district court affirmed the conviction.
We granted certiorari to review the decision of the Arapahoe County District Court. We now hold that our precedent in People v. Gillett, 629 P.2d 613, 619 (Colo. 1981), established the remedy of dismissal of charges as a sanction for an officer's denial of a driver's right to select a chemical test to measure sobriety, except when such denial occurred under circumstances amounting to good cause. Here, the circumstances accompanying the denial did not comprise good cause. Accordingly, we reverse the judgment of the district court and vacate the defendant's conviction for driving while ability impaired.
I. Facts and Proceedings Below
On October 22, 2000, the defendant, Andrew Riley, was pulled over by an officer from the Arapahoe County Sheriff's Office for failure to stop at a stop sign. Riley's eyes were watery and bloodshot and his speech was slurred. Suspecting Riley was driving under the influence of alcohol, the officer requested that he perform a roadside sobriety test. Following those maneuvers, the officer explained the express consent law and asked Riley to submit to a chemical test. Riley elected a blood test. However, when the officer called dispatch he was informed that American Medical Response (AMR), the ambulance service the sheriff's office used to perform blood draws, was unable to respond within the required two hour period. The officer informed Riley of AMR's unavailability and asked Riley to take a breath test, which he declined. Riley was then transported to Aurora Detox. The facility was not equipped to perform a blood test and Riley again declined a breath test. A chemical test was never performed.
Following these events, Riley was charged in Arapahoe County with driving under the influence, driving under restraint, and careless driving. During a motions hearing on June 1, 2001, Riley moved to dismiss the charges based on the arresting officer's failure to comply with the express consent statute. At the hearing, the officer testified that he did not know why AMR was unavailable on the night of the arrest. He also testified that he had never experienced a situation where AMR was unavaila
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