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Riley v. People12/20/2004
ble for a blood draw and was unaware of alternative procedures for performing a blood test. The trial court denied Riley's motion to dismiss, holding that the officer's noncompliance was excused by good cause. On January 28, 2002, a jury convicted Riley of driving while ability impaired and careless driving. Riley appealed to the Arapahoe County District Court. The district court affirmed the convictions, finding that AMR's inability to perform a blood test was a circumstance beyond the officer's control and satisfied the exceptional circumstances test set forth in Gillett. Riley sought reconsideration, arguing that there is no good faith exception to compliance with the Colorado statute. Riley's motion for reconsideration was denied.
We granted certiorari to decide whether the district court erred in affirming the county court's determination that exceptional circumstances justified the arresting officer's failure to comply with the defendant's request for a blood test, under section 42-4-1301(7), 11 C.R.S. (2000) (the "express consent statute").
II. Analysis of Colorado's Express Consent Statute
Any right to choose a particular type of chemical sobriety test by a driver on Colorado's highways is a function of statute. Stanger v. Colo. Dep't of Revenue, 780 P.2d 64 (Colo. App. 1989). Colorado's express consent law grants the driver the right to select one type of test from two alternatives.
§ 42-4-1301(7)(a)(II). The statute provides:
Any person who drives any motor vehicle upon the streets and highways and elsewhere throughout this state shall be required to take and complete, and to cooperate in the taking and completing of, any test or tests of such person's breath or blood for the purpose of determining the alcoholic content of the person's blood or breath when so requested and directed by a law enforcement officer having probable cause to believe that the person was driving a motor vehicle in violation of subsection (1) or (2) of this section.
Except as otherwise provided in this section, if a person who is twenty-one years of age or older requests that said test be a blood test, then the test shall be of his or her blood; but, if such person requests that a specimen of his or her blood not be drawn, then a specimen of such person's breath shall be obtained and tested except as provided in subsubparagraph (B) of this subparagraph (II).
§ 42-4-1301(7)(a)(II)(A). The goal of the statute is to facilitate cooperation in the enforcement of highway safety. DeScala v. Motor Vehicle Div., 667 P.2d 1360, 1362 (Colo. 1983). To that end, the statute creates mutual rights and responsibilities for both the driver and the arresting officer. Gillett, 629 P.2d at 616.
Relying on Davis v. Colo. Dep't of Revenue, 623 P.2d 874 (Colo. 1981), the People argue that the mutual responsibilities inherent in the statute mean that a driver has a responsibility to exonerate himself by submitting to an alternative test if the test he requests is not available. The holding in Davis was premised on an earlier version of the implied consent law that allowed the driver to elect a blood test. If the driver did not wish his blood to be drawn, then the officer could choose between a breath or urine test. After his arrest, Davis insisted he would only submit to a urine test despite the unavailability of a local facility equipped to test urine. Id. at 876. In accordance with the plain language of the statute, we held that the choice between a breath or urine test belonged to the officer -- not to Davis. Id. at 877. Therefore, we agreed that Davis's refusal to submit to a breath test was sufficient grounds for revocation of his license. Id.
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