1                Opinions of the Colorado Supreme Court are available to the
2            public and can be accessed through the Judicial Branch’s homepage at
3              http://www.courts.state.co.us. Opinions are also posted on the
4              Colorado Bar Association’s homepage at http://www.cobar.org.
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6                                                                ADVANCE SHEET HEADNOTE
7                                                                             April 17, 2017
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9                                            2017 CO 25
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1   No. 15SA330, People v. Simpson—Searches and Seizures—Warrantless Blood
2   Draw—Consent to Search.
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4          Colorado’s Expressed Consent Statute (“the Statute”), section 42-4-1301.1, C.R.S.

5   (2016), provides that any motorist who drives on the roads of the state has consented to

6   take a blood or breath test when requested to do so by a law enforcement officer with

7   probable cause to suspect the motorist of driving under the influence.

8          In this interlocutory appeal, the supreme court reviews the trial court’s ruling

9   that an advisement accurately informing the defendant of the Statute amounted to

0   coercion that rendered his consent to a blood test involuntary and required suppression

1   of the test result.    The supreme court explains that by driving in Colorado, the

2   defendant consented to the terms of the Statute, including its requirement that he

3   submit to a blood draw under the circumstances present in this case. The supreme

4   court concludes that the defendant’s prior statutory consent satisfied the consent

5   exception to the warrant requirement under the Fourth Amendment; therefore, the

6   blood test conducted in this case was constitutional. Consequently, the supreme court

7   reverses the trial court’s suppression of the test result.
1

2                        The Supreme Court of the State of Colorado
3                          2 East 14th Avenue • Denver, Colorado 80203


4                                          2017 CO 25

5                            Supreme Court Case No. 15SA330
6                         Interlocutory Appeal from the District Court
7                      Arapahoe County District Court Case No. 15CR212
8                            Honorable F. Stephen Collins, Judge

9                                     Plaintiff–Appellant:
0                              The People of the State of Colorado,
1                                               v.
2                                     Defendant–Appellee:
3                                    William Paul Simpson.

4                                       Order Reversed
5                                           en banc
6                                         April 17, 2017
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9   Attorneys for Plaintiff–Appellant:
0   George H. Brauchler, District Attorney, Eighteenth Judicial District
1   Jennifer Gilbert, Deputy District Attorney
2   Richard Orman, Senior Deputy District Attorney
3     Centennial, Colorado
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5   Attorneys for Defendant–Appellee:
6   Douglas K. Wilson, Public Defender
7   Elsa Archambault
8   Lucienne Ohanian
9    Centennial, Colorado
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1   Attorneys for Amici Curiae Denver District Attorney’s Office and Colorado District
2   Attorneys’ Council:
3   Mitchell R. Morrissey, District Attorney, Second Judicial District
4   Katherine A. Hansen, Deputy District Attorney
5    Denver, Colorado
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1   JUSTICE HOOD delivered the Opinion of the Court.
2   JUSTICE EID concurs in the judgment, and CHIEF JUSTICE RICE and JUSTICE
3   COATS join in the concurrence in the judgment.


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¶1     Colorado’s Expressed Consent Statute provides that any motorist who drives on

the roads of the state has consented to take a blood or breath test when requested to do

so by a law enforcement officer with probable cause to suspect the motorist of driving

under the influence. In this interlocutory appeal, we review the trial court’s ruling that

an advisement accurately informing the defendant, William Paul Simpson, of this law

amounted to coercion that rendered his consent to a blood test involuntary and

required suppression of the test result.

¶2     By driving in Colorado, Simpson consented to the terms of the Expressed

Consent Statute, including its requirement that he submit to a blood draw under the

circumstances present here. That prior statutory consent eliminated the need for the

trial court to assess the voluntariness of Simpson’s consent at the time of his interaction

with law enforcement. Simpson’s prior statutory consent satisfies the consent exception

to the warrant requirement under the Fourth Amendment. Therefore, the blood draw

at issue here was constitutional. Accordingly, we reverse the trial court’s suppression

of the blood-draw evidence.

                           I. Facts and Procedural History

¶3     On January 25, 2015, Officer Mason MacDonald saw a pickup truck bounce off a

curb four times, turn across a median, and then oversteer into oncoming traffic while

entering an apartment complex parking lot. Officer MacDonald turned on his overhead

lights and followed the truck into the parking lot. The truck initially stopped but then

slowly crept forward.




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¶4     Eventually, the truck came to a full stop. Officer MacDonald approached and

found Simpson in the driver’s seat. Officer MacDonald immediately smelled alcohol on

Simpson’s breath and saw that Simpson’s eyes were red and watery.                He asked

Simpson whether he had been drinking, and Simpson replied in the affirmative. He

asked Simpson to get out of the truck, but Simpson was unable to comply without

assistance. Simpson was ultimately transported to the hospital for medical attention.

¶5     At the hospital, Officer MacDonald read Simpson an expressed consent

advisement form titled “Colorado Express Consent Law Information.” In relevant part,

the form stated:

       1. By driving a motor vehicle in Colorado, you have agreed to submit to a
          blood or breath test to determine the alcohol content of your blood or
          breath if a police officer has probable cause to believe you have been
          driving a motor vehicle while under the influence of, or impaired by,
          alcohol.

       ....

       5. A refusal to sign any release or consent forms required by a person
          authorized to take or withdraw specimens is a refusal to submit to the
          required tests.

       6. The results of the test, or your refusal to take the test, can be used
          against you in court.

       7. If you refuse to submit to a test, your driving privilege will be revoked
          for one year. This revocation would be in addition to any penalties
          resulting from the charges filed against you.

The bottom of the form asked, “Which test do you choose to submit to?” and instructed

the reader to initial the appropriate line, with one line for blood and one for breath.

¶6     Officer MacDonald explained that because breath tests were unavailable in the

hospital, he would be able to offer Simpson a blood test only. He gave Simpson the


                                             4
expressed consent form to read. Simpson reviewed the form and then initialed it on the

line labeled “BLOOD.” Simpson also signed the “Officer’s signature” line, instead of

the line designated for the test-taker’s signature. A nurse completed the blood draw,

which revealed that Simpson had a blood-alcohol content of 0.448, more than five times

the level necessary by statute to permit an inference of driving under the influence of

alcohol (“DUI”), § 42-4-1301(6)(a)(III), C.R.S. (2016).

¶7     Simpson was charged with DUI, among other offenses related to the incident.

Before trial, he filed a suppression motion claiming that the blood draw was an

unconstitutional search. In support of that motion, Simpson claimed he was too drunk

to give valid consent to a search and that at his level of intoxication, even the slightest

police direction amounted to coercion.

¶8     At a motions hearing, the trial court found that the reading of the expressed

consent advisement, due to its “express threats and statements that [the driver has]

already consented to submit to a blood and breath test to determine alcohol content,”

was coercive. The court concluded that any consent given after the reading of this

advisement could not be voluntary, so it determined that Simpson’s consent was

invalid and the search was unconstitutional. Accordingly, the trial court suppressed the

blood-draw evidence.

¶9     The next day, supplementing its oral ruling, the trial court published a written

order concerning Simpson’s motion to suppress the blood test results. First, the court

revisited its voluntariness determination, explaining that the expressed consent form

and Officer MacDonald’s statement that only a blood test was available “would cause


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any reasonable person (and certainly a person in Defendant’s highly inebriated

condition) to conclude that they had no choice but to submit to the blood test and,

thus, . . . rise to the level of undue influence exercised against Defendant which renders

his alleged consent involuntary.”

¶10    The court later expressed concern that it had neglected to address all issues

related to the constitutionality of the search at the hearing and examined whether,

despite the absence of voluntary consent, the blood draw might nevertheless be justified

as reasonable due to exigent circumstances.         The court concluded that no such

circumstances existed. It therefore reaffirmed its suppression ruling.

¶11    The People filed this interlocutory appeal pursuant to section 16-12-102(2), C.R.S.

(2016), and C.A.R. 4.1.

                                II. Standard of Review

¶12    Review of a trial court’s suppression order presents a mixed question of law and

fact. People v. Munoz-Gutierrez, 2015 CO 9, ¶ 14, 342 P.3d 439, 443. We defer to the

trial court’s findings of fact that are supported by the record, but we assess the legal

effect of those facts de novo. Id.; see also People v. Chavez-Barragan, 2016 CO 66,

¶¶ 33–35, 379 P.3d 330, 338 (examining the standards of review this court has

historically applied to questions of voluntariness); People v. Matheny, 46 P.3d 453, 459

(Colo. 2002) (“[W]hen a constitutional right is implicated . . . appellate courts should not

defer to a lower court’s judgment when applying legal standards to the facts found by

the trial court.”).




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                                      III. Analysis

¶13    We begin by describing Colorado’s Expressed Consent Statute. Next, we review

relevant Fourth Amendment principles, including the consent exception to the warrant

requirement.    We then explain that by choosing to drive in Colorado, Simpson

consented to the terms of the Expressed Consent Statute, including its requirement that

he submit to a blood draw under the circumstances present here. We conclude that this

statutory consent satisfied the consent exception to the warrant requirement. Therefore,

the blood draw was constitutional.          Accordingly, we reverse the trial court’s

suppression order.

                     A. Colorado’s Expressed Consent Statute

¶14    Colorado’s Expressed Consent Statute (“the Statute”), section 42-4-1301.1,

C.R.S. (2016), provides that “[a]ny person who drives any motor vehicle . . . throughout

[the] state shall be deemed to have expressed such person’s consent to the provisions of

this section.” § 42-4-1301.1(1). The Statute further declares:

       A person who drives a motor vehicle upon the streets and highways and
       elsewhere throughout this state shall be required to take and complete,
       and to cooperate in the taking and completing of, any test or tests of the
       person’s breath or blood for the purpose of determining the alcoholic
       content of the person’s blood or breath when so requested and directed by
       a law enforcement officer having probable cause to believe that the person
       was driving a motor vehicle in violation of the prohibitions against
       DUI . . . .

§ 42-4-1301.1(2)(a)(I). The driver may choose between a blood or breath test, but a

blood test will be administered if the driver is receiving medical treatment at a location

where a breath testing instrument is unavailable. § 42-4-1301.1(2)(a)(II).




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¶15    The statutory scheme spells out the procedures to be followed if a driver refuses

to submit to a test.    If the driver subsequently stands trial for driving under the

influence, the “refusal to take or to complete, or to cooperate with the completing of,

any test or tests shall be admissible into evidence at the trial.” § 42-4-1301(6)(d), C.R.S.

(2016). The individual’s driver’s license will also be revoked for at least one year.

§ 42-2-126(3)(c)(I), C.R.S. (2016). These provisions do not create a statutory right to

revoke consent.

                              B. The Fourth Amendment

¶16    The Fourth Amendment to the United States Constitution prohibits unreasonable

governmental searches. U.S. Const. amend. IV; Colo. Const. art. II, § 7; Eddie’s Leaf

Spring Shop & Towing LLC v. Colo. Pub. Utils. Comm’n, 218 P.3d 326, 333 (Colo. 2009)

(“The Colorado and U.S. Constitutions are generally coextensive with regard to

warrantless searches and seizures.”).

¶17    A blood draw is a search implicating the Fourth Amendment. Birchfield v.

North Dakota, 136 S. Ct. 2160, 2173 (2016); see also Missouri v. McNeely, 133 S. Ct. 1552,

1558 (2013) (referring to a blood draw as “an invasion of bodily integrity” that

“implicates an individual’s ‘most personal and deep-rooted expectations of privacy’”

(quoting Winston v. Lee, 470 U.S. 753, 760 (1985))).

¶18    A warrantless search is reasonable only if it falls within a recognized exception to

the Fourth Amendment warrant requirement. People v. Schaufele, 2014 CO 43, ¶ 19,

325 P.3d 1060, 1064 (plurality opinion) (quoting McNeely, 133 S. Ct. at 1558).




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¶19    The subject’s voluntarily given consent is one such exception. See Birchfield,

136 S. Ct. at 2185 (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)). “Consent

to search is voluntary if it is ‘the product of an essentially free and unconstrained choice

by its maker,’ and not the result of circumstances which overbear the consenting party’s

will and critically impair his or her capacity for self-determination.”          People v.

Magallanes-Aragon, 948 P.2d 528, 530 (Colo. 1997) (quoting Schneckloth, 412 U.S. at

225). But if a search is “the result of duress or coercion, express or implied, or any other

form of undue influence exercised against the defendant,” it is involuntary. Id. at 531

(quoting People v. Cleburn, 782 P.2d 784, 787 (Colo. 1989)).

                      C. The Blood Draw Was Constitutional

¶20    The trial court concluded that Simpson’s consent to the blood draw was

involuntary based on the language of the expressed consent advisement that Officer

MacDonald read to Simpson. But Simpson had already consented to a blood draw

before his encounter with Officer MacDonald, when he agreed to the terms of the

Expressed Consent Statute by driving in Colorado. Because Simpson never revoked

that consent, the blood draw was constitutional.

¶21    In People v. Hyde, 2017 CO 24, ¶ 3, __ P.3d __, which we announce today, we

explain that a driver’s consent to the Expressed Consent Statute, demonstrated by

driving in the state of Colorado, satisfies the consent exception to the Fourth

Amendment warrant requirement and renders a warrantless blood draw conducted

under the Statute constitutional. This analysis applies to Simpson’s case as well. By

choosing to drive in Colorado, Simpson consented to the terms of the Expressed


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Consent Statute, including its requirement that a driver “shall be required to take and

complete” a blood-alcohol test if a law enforcement officer has probable cause to

suspect him of a drunk-driving offense.            § 42-4-1301.1(2)(a)(I).   Simpson therefore

consented to the blood draw.1

¶22    The trial court nevertheless appeared to believe it was required to find Simpson’s

consent invalid due to unresolved questions about the constitutionality of warrantless

blood draws after Missouri v. McNeely, 133 S. Ct. 1552 (2013). In that case, the United

States Supreme Court declined to create a per se rule justifying warrantless blood tests

of all drunk-driving suspects on the basis of exigent circumstances created by the

natural dissipation of alcohol from the bloodstream. Id. at 1563. Instead, the Court

explained, the reasonableness of conducting a warrantless blood draw based on

exigency must be assessed case by case based on the totality of the circumstances. Id.

Then, in People v. Schaufele, 2014 CO 43, 325 P.3d 1060, a plurality of this court

declined to adopt the People’s proposed rule evaluating exigent circumstances based

solely upon the length of time required to secure a search warrant in a drunk-driving



1 In reaching this conclusion, we do not intend to suggest that a law enforcement officer
may forcibly conduct a blood draw on an unwilling driver who has revoked his or her
consent—in fact, the Expressed Consent Statute forbids such a practice, except when the
driver is suspected of a limited number of enumerated crimes. § 42-4-1301.1(3) (“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 [a test] . . . .”).
Whether a forcible blood draw could be conducted under a broader statute lacking the
current statute’s protections is a question not before this court.


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case, concluding instead that McNeely requires a totality-of-the-circumstances test.

Schaufele, ¶¶ 2–3, 325 P.3d at 1062 (plurality opinion).

¶23     McNeely and Schaufele merely clarified that there is no per se exigency

exception to the warrant requirement based on the natural dissipation of alcohol from a

suspect’s blood. See McNeely, 133 S. Ct. at 1563; Schaufele, ¶¶ 2–3, 325 P.3d at 1062.

These cases did not impose new requirements for justifying a warrantless blood draw,

nor did they call into question the Expressed Consent Statute’s clear statement that a

driver consents to its provisions—including a potential blood-alcohol test—by driving

in Colorado. McNeely and Schaufele therefore should not have affected the trial court’s

reasoning, and do not alter our analysis.

¶24     After oral argument before us in Simpson’s case, the Supreme Court underscored

its conclusion that implied consent laws2 are constitutional. In Birchfield v. North

Dakota, 136 S. Ct. 2160 (2016), the Court primarily addressed the search-incident-to-

arrest exception to the warrant requirement, but it also discussed state implied consent

laws.   It explained: “Our prior opinions have referred approvingly to the general

concept of implied-consent laws that impose civil penalties and evidentiary

consequences on motorists who refuse to comply.            Petitioners do not question the

constitutionality of those laws, and nothing we say here should be read to cast doubt on

them.” Id. at 2185 (emphasis added) (citations omitted). The Court invalidated only

2 Though Colorado’s statute is phrased in terms of “expressed consent,” its language
and effect are similar to “implied consent” laws in other states. Compare § 42-4-1301.1
(Colorado’s Expressed Consent Statute), with Mo. Rev. Stat. § 577.020 (2016) (Missouri’s
implied consent law), and Conn. Gen. Stat. § 14-227b (2016) (Connecticut’s implied
consent law).


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laws that impose criminal penalties on a driver’s refusal to submit to a blood test. Id. at

2185–86. Colorado’s Expressed Consent Statute imposes only civil, and not criminal,

penalties for refusal. Therefore, as we explain in Hyde, ¶ 26, Birchfield sanctions rather

than forbids justifying a warrantless blood draw on the basis of statutory consent.

                                    IV. Conclusion

¶25    By driving in Colorado, Simpson consented to the terms of the Expressed

Consent Statute, including its requirement that he submit to a blood draw under the

circumstances present here. That prior statutory consent eliminated the need for the

trial court to assess the voluntariness of Simpson’s consent at the time of his interaction

with law enforcement. Simpson’s prior statutory consent satisfies the consent exception

to the warrant requirement under the Fourth Amendment. Therefore, the blood draw

at issue here was constitutional. Accordingly, we reverse the trial court’s suppression

of the blood-draw evidence.

JUSTICE EID concurs in the judgment, and CHIEF JUSTICE RICE and JUSTICE
COATS join in the concurrence in the judgment.




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JUSTICE EID, concurring in the judgment.

¶26   For the reasons I set forth in People v. Hyde, 2017 CO 24, __ P.3d __, I concur

only in the judgment reached by the majority.

      I am authorized to state that CHIEF JUSTICE RICE and JUSTICE COATS join in

this concurrence in the judgment.




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