 |
 |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|
|
|
|
Riley v. People12/20/2004
BR>
The present statute allocates the choices and burdens somewhat differently. In the first instance, the officer has the right to invoke the express consent law by requesting the driver to submit to a chemical test. At that point, the driver has the right to request and receive a blood test or a breath test. Once the driver has elected either a blood or a breath test, the officer has a corresponding duty to comply with the driver's request. See § 42-4-1301(7)(a)(II)(A). The issue before us today requires us to apply the language of the statute in light of our own precedent in Gillett.
Of course, our primary task in construing a statute is to ascertain and give effect to the intent of the general assembly. People v. Dist. Court, 713 P.2d 918, 921 (Colo. 1986). We first look to the language of the statute itself. Words are given their plain and ordinary meaning unless they have acquired a technical or particular meaning. § 2-4-101, C.R.S. (2004). If the clear intent of the legislature appears with reasonable certainty, we need not resort to other rules of statutory construction. Dist. Court, 713 P.2d at 921.
The plain language of this statute provides that if a person requests a blood test, "then the test shall be of his or her blood"; but if the driver requests that his blood not be drawn, then "a specimen of such person's breath shall be obtained and tested." § 42-4-1301(7)(a)(II)(A) (emphasis added). There is a presumption that the word "shall" when used in a statute is mandatory.
See Dist. Court, 713 P.2d at 921. That presumption applies even in the negative -- to wit: the driver "shall not be permitted to change such election."
§ 42-4-1301(7)(a)(II)(B) (emphasis added); see also Dike v. People, 30 P.3d 197 (Colo. 2001) (finding the express consent law does not allow a driver to change his election of a test); People v. Shinaut, 940 P.2d 380 (Colo. 1997) (holding defendant's selection of blood test irrevocable but erroneous accommodation did not justify suppression); Lahey v. Dep't of Revenue, 881 P.2d 458 (Colo. App. 1994) (holding that arresting officer has duty to implement driver's election without allowing driver to change such election). There is no language on the face of the statute that permits or contemplates an exception to the authorized procedure. Rather, the statute creates a mandatory requirement that the arresting officer comply with the driver's choice of test.
We have previously held in this context that there is no exception that allows an arresting officer to change the driver's choice of test under the express consent statute. See, e.g., Shinaut, 940 P.2d at 382-83; Lahey, 881 P.2d at 459.
Here, the language of the statute contains only one exception to compliance with the driver's election. If the driver is unable to cooperate in a breath test due to "injuries, illness, disease, physical infirmity, or physical incapacity, or if such person is receiving medical treatment at a location at which a breath testing instrument . . . is not available, the test shall be of such person's blood." § 42-4-1301(7)(a)(II)(B) (emphasis added). The presence of one exception is generally construed as excluding other exceptions. People v. Campbell, 885 P.2d 327, 329 (Colo. App. 1994).
We turn then to Gillett, a case in which the defendant had elected to undergo a blood test to determine his blood alcohol content. 629 P.2d at 618. The officer then informed the defendant that facilities were not available to perform a blood test, because two of the contract providers had sent written notice to the police department withdrawing their services several months earlier. Id. The district court dismissed the charges, findi
Page 1 2 3 4 Colorado DUI Attorneys
DUI Lawyers
|
| |
to fill out a simple form to connect to DUI Lawyers in your area.
|
|