CO: Forced blood test unreasonable and suppressed; remedy is to prosecute for refusal

Under Colorado statute, anyone who drives a motor vehicle in the state is deemed to have consented to take a blood or breath test when requested by a law enforcement officer having probable cause to believe the driver is under the influence of alcohol, drugs, or both. The driver may refuse to take such a test, but is subject to penalties for that refusal. Even if a driver refuses testing, however, a law enforcement officer may require the driver to submit to a blood test if the officer has probable cause to believe the driver has committed criminally negligent homicide, vehicular homicide, assault in the third degree, or vehicular assault. The court determines, as a matter of first impression, that if a driver refuses testing and an officer lacks probable cause that the driver has committed one of the four enumerated offenses, the officer may not require the driver to submit to testing by obtaining a search warrant. The court therefore determines that the forced test of the defendant, pursuant to a warrant but without probable cause that the defendant had committed one of the enumerated offenses, was illegal. The court also determines that the appropriate remedy for the illegal forced test is suppression of the test results and remands for a new trial. People v. Raider, 2021 COA 1, 2021 Colo. App. LEXIS 1 (Jan. 7, 2021) (largely quoting court’s summary).