CO: DUI generally is serious enough offense to justify an exigent circumstance entry, but state has to show defendant would have been tested

DUI is a sufficiently grave offense that a warrantless entry might be justified. Here, however, it was not because the state could not show that defendant would consent to a taking of his breath or blood to test it. People v. Wehmas, 246 P.3d 642 (Colo. 2010):

Consistent with Welsh [v. Wisconsin], [Illinois v.] McArthur, and Mendez, we conclude that DUI is a sufficiently grave offense to potentially justify a warrantless home entry. In light of McArthur v. Illinois, it was legal error for the county court and district court to conclude otherwise.

As those cases suggest, however, this is not the end of the inquiry. Simply concluding that an underlying offense is grave does not create sufficiently exigent circumstances to justify warrantless entry. See Commonwealth v. Williams, 483 Pa. 293, 396 A.2d 1177 (Pa. 1978) (finding warrantless home arrest for murder invalid after balancing the relevant factors and finding insufficient exigent circumstances, cited in Welsh, 466 U.S. at 752). We must proceed to review the circumstances surrounding the warrantless entry into Wehmas’s apartment.

. . .

In this case, even before we reach the factors unique to the destruction of evidence, the circumstances suggest that the prosecution has failed to show sufficiently exigent circumstances to justify a warrantless entry. Although there was probable cause that a grave offense had been committed and it was likely that Wehmas was in the apartment, there was no evidence or objectively reasonable belief that he was armed or that he would escape if he was not quickly apprehended. There was also no evidence that obtaining a warrant was problematic because it was late at night; instead, the night-time entry weighs against considering the officers’ actions to be reasonable under the circumstances because of the highly intrusive nature of making the entry. The alleged offense had ended, no weapons were involved, and the defendant had not reemerged from his apartment. Moreover, the prosecution already had evidence of Wehmas’s intoxication based on reports from two eyewitnesses.