Can a Blood Draw Be Forced in a DUI Case?

When you get behind the wheel of a motor vehicle or a motorcycle and you drive on a road in Colorado, you are giving what is known as “expressed consent” to have your blood alcohol concentration tested if you are suspected of driving under the influence (DUI) or driving while ability impaired (DWAI). The language of “expressed consent” that is used in Colorado is often known as “implied consent” in other states’ statutory language, but the end result is the same. There is language in Colorado’s “expressed consent” statute that says forced specimen collections generally cannot occur unless circumstances suggest that the driver caused serious bodily injury or death to another person.

Yet a Colorado Supreme Court case, People v. Raider (2022), ruled that the statutory language only applies to warrantless searches. This case is important for anyone who has been arrested on suspicion of a DUI or DWAI in Colorado and has had a forced blood draw or any other forced specimen collection. Our Denver DUI defense lawyers can explain in more detail.

Language of “Expressed Consent” Under Colorado Law 

The “expressed consent” statute in Colorado says:

“No law enforcement officer shall physically restrain any person for the purpose of obtaining a specimen of such person’s blood, breath, saliva, or urine for testing except when the officer has probable cause to believe that the person has committed criminally negligent homicide…, vehicular homicide…, assault in the third degree…, or vehicular assault…, and the person is refusing to take or to complete, or to cooperate in the completing of, any test or tests, then, in such event, the law enforcement officer may require a blood test.”

Statute Only Applies to Warrantless Searches

The language of the statute suggests that a forced blood draw cannot occur in DUI or DWAI cases in which nobody is injured. However, in People v. Raider, the Colorado Supreme Court clarified that law enforcement officers can force blood draws when they have a warrant permitting them to use reasonable force to do so.

In that case, the defendant was arrested for a DUI and refused a breath or blood test. Then, law enforcement officers applied for a search warrant to draw the defendant’s blood. The warrant authorized the officers “to use reasonable force as necessary” to conduct the blood draw. The defendant argued that the forced blood draw violated his rights under the “expressed consent” statute. The case eventually got to the Colorado Supreme Court, which “concluded that the statute only contemplates warrantless searches.” Accordingly, the Court ruled, the statute’s “prohibition against forced specimen collection has no bearing on searches executed pursuant to a valid warrant.”

What this means is that, if you refuse a evidentiary breath or blood test following arrest for a DUI/DWAI, you can be forced to have your blood drawn if law enforcement obtains a warrant.

Contact a Denver DUI Defense Lawyer 

If you have questions about your rights when you are stopped for or arrested on suspicion of a DUI, it is important to seek legal advice as soon as possible. One of the experienced Denver DUI defense attorneys at DeChant Law can speak with you today about your case and about building a strong defense against any charges you are facing.

Sources:

courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/Opinions/2021/21SC119.pdf

codes.findlaw.com/co/title-42-vehicles-and-traffic/co-rev-st-sect-42-4-1301-1/