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Warrantless Blood Draws in CO DUI Cases

The United States Supreme Court in the 1966 case of Schmerber v. California held that it was reasonable for a police officer to require medical staff to conduct a blood draw of an injured and visibly intoxicated driver at a hospital after a one-car accident in which the driver’s passenger had been injured.  The Court reasoned that in such a situation where alcohol was leaving the driver’s body and time had to be taken to transport him to a hospital and to investigate the accident “there was no time to seek out a magistrate and secure a warrant.”  Thus, the warrantless draw of the driver’s blood in that case was reasonable.

In the 1984 case of People v. Sutherland the Colorado Supreme Court approved a warrantless blood draw from a driver suspected to be drunk who was involved in a fatal accident.  In approving the warrantless blood draw the Court ruled that such draws were constitutional when prosecution could satisfy the following four-factor test:

  1. There must be probable cause for the arrest of the defendant relative to an alcohol-related driving offense;
  2. There must be a clear indication that the blood sample will provide evidence of the defendant’s level of intoxication;
  3. Exigent circumstances must exist making it impractical to obtain a search warrant; and
  4. The test must be a reasonable one and must be conducted in a reasonable manner.

The Colorado vehicular assault statute and the express consent law provide that when an officer has probable cause to believe that a person driving under the influence has seriously injured someone, the officer may compel that person to give a blood sample without their consent or cooperation.  The applicable language of the express consent statute states that in such a case an officer “shall physically restrain the person for the purpose of taking a blood specimen” when the person refuses to cooperate and the officer has probable cause that the driver committed criminally negligent homicide, vehicular homicide, assault in the third degree, or vehicular assault.  In a routine driving under the influence case in Colorado, i.e. one which does not involve death or serious physical injury, the police may not physically force a suspect to submit to a warrantless blood draw.

Under Colorado law a drunk driver who has injured or killed someone does not get the choice of whether to provide a breath or blood sample.

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