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Riley v. People12/20/2004
ng that under those circumstances, the defendant had a statutory right to have his blood tested. Id. We affirmed, holding that denial of the defendant's right to establish non-intoxication through a highly reliable form of testing was a proper basis for the order of dismissal. Id. at 619. The court concluded that when the officer denies the driver his test of choice, he deprives the driver of his right to establish non-intoxication -- or stated otherwise, he denies the driver the right to produce exculpatory evidence. Accordingly, the court concluded that dismissal was an appropriate remedy, although no such remedy appeared in the statute. The court, however, modified the harsh remedy by language that appeared in a footnote to the opinion, wherein we indicated that under some circumstances, the officer's failure to comply could be excused for "good cause." Such "good cause" would generally require a substantial reason amounting in law to a legal excuse for failing to perform an act required by law, and might include circumstances beyond the officer's control. Gillett, 629 P.2d at n.9. We noted that the implied consent law "is silent on this matter and, while mentioning it in passing, we express no opinion on it at this time." Id. Since there was no evidence of good cause in that case, we declined to decide what circumstances would amount to such good cause.
We now confront another case like Gillett and we reaffirm that Gillett set forth a good cause exception to the statute.
III. Application
We now turn to the application of that exception. Under the circumstances here, Riley elected a blood test. AMR was unavailable to perform a blood draw so the officer offered Riley a breath test. Once the driver has made his choice, however, he has neither the responsibility nor the right to elect an alternative form of chemical test. The officer has discretion to change the elected test only where a breath test is impractical due to the driver's medical condition under section 42-4-1301(7)(a)(II)(B). This sole statutory exception does not apply to the circumstances of this case. Therefore, once Riley made his choice, the onus was on the officer to comply - barring extraordinary circumstances.
Riley had a statutory right to a blood test but no chemical test was ever performed. There was no evidence of extraordinary circumstances that prevented AMR from responding in a timely manner. Rather, there was merely evidence that AMR was unable to respond during the appropriate time frame, and that such inability had not occurred previously in the officer's experience. Inconvenience, a busy work load or delay do not suffice to comprise extraordinary circumstances sufficient to excuse compliance with the statute. Accordingly, the officer violated the terms of the express consent law, and the defendant's motion to dismiss was well-founded.
IV. Conclusion
In its appellate capacity, the district court affirmed Riley's conviction for driving while ability impaired, holding that Gillett established a "good cause" exception applicable to this case. We now reverse. Although we have adopted a good cause exception, it does not apply here.
Whether Riley was offered an opportunity to perform a breath test once he had elected a blood test is irrelevant. The defendant has the right to undergo the chemical testing of his choice. Riley was denied his statutory right to submit to a blood test. Accordingly, we reverse the district court's decision and remand this matter for vacation of the driving while ability impaired conviction.
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