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Dike v. People7/2/2001
JUDGMENT AFFIRMED
EN BANC
JUSTICE KOURLIS does not participate.
In this appeal on certiorari from the district court pursuant to section 13-6-310(4), 5 C.R.S. (2000), we determine that the county court possessed jurisdiction to set aside its initial dismissal order because it did so prior to expiration of the thirty-day time period under Crim. P. 37(a) for the prosecution's appeal of the dismissal to the district court.
The county court had granted the defendant's motion to dismiss the charges because the defendant had initially elected a blood test, but then elected a breath test. The prosecution brought our decision in People v. Shinaut, 940 P.2d 380 (Colo. 1997), to the court's attention through a motion for reconsideration. Upon reviewing that case, the county court set aside its dismissal order and reconsidered the defendant's suppression motion, denying it. The defendant was subsequently convicted. We affirm the judgment of conviction.
I.
On the afternoon of October 1, 1998, petitioner Harrison William Dike (Dike) was involved in a two-vehicle accident in Steamboat Springs, when the car he was driving collided with a parked car occupied by two people. A Steamboat Springs Police Department code enforcement officer (CEO) on bike patrol saw Dike staggering toward his car just prior to the accident. The CEO noticed that Dike was having trouble with his balance and coordination. As Dike entered his car, the CEO called dispatch to inform the police that he believed he was witnessing an intoxicated driver getting into a vehicle. The collision occurred while the CEO was still on the radio.
Dike parked the car and got out right after the collision, and the CEO immediately started following Dike and calling to him to stop. He approached Dike and asked to see some identification. At that point, a Steamboat Springs police officer approached and, likewise noting the lack of coordination and balance and the smell of alcohol, gave Dike a field sobriety test, which led him to believe Dike was intoxicated. The officer then took Dike into custody.
The officer informed Dike of the Colorado express consent law, § 42-4-1301(7), 11 C.R.S. (2000), which allows a suspect to elect either a breath test or a blood test for blood alcohol content (BAC) when a police officer has grounds for believing that the suspect has been operating a vehicle while intoxicated. He further informed Dike that if Dike refused to take a test, his license would be revoked for one year. § 42-2-126(2)(a)(II), 11 C.R.S. (2000). Dike allegedly told the officer that he wanted whichever test would cause the officer the most problems. Upon being told that the officer could not choose a test for him, Dike elected to take a blood test.
The officer explained to Dike that he would have to fill out some forms before taking the blood test, both for the hospital and lab (release of liability), and for the police. On the way to the hospital for the test, Dike allegedly became recalcitrant, told the officer that he wanted to make the officer's life miserable, and told him that he was not going to sign any forms or cooperate in any way. The officer told Dike that he would consider Dike's lack of cooperation to constitute a refusal of a BAC test, which would result in Dike's driver's license being revoked. Dike said he did not care, and still insisted that he would refuse to sign the forms at the hospital. The officer, as promised, took Dike's statements as a refusal to take the blood test, and thereafter transported Dike to the Routt County Jail instead of the hospital.
At the jail, the officer again reminded Dike that he would lose his
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