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                                                        ADVANCE SHEET HEADNOTE
                                                                     April 17, 2017

                                       2017 CO 24

No. 15SA291, People v. Hyde—Searches and Seizures—Warrantless Blood Draw—
Consent to Search.

      In this interlocutory appeal, the supreme court considers whether a warrantless

blood draw conducted on an unconscious driver pursuant to Colorado’s Expressed

Consent Statute (“the Statute”), section 42-4-1301.1, C.R.S. (2016), violated the Fourth

Amendment’s prohibition on unreasonable searches. The supreme court explains that

by driving in Colorado, the driver consented to the terms of the Statute, including its

requirement that “[a]ny person who is dead or unconscious shall be tested to determine

the alcohol or drug content of the person’s blood.” § 42-4-1301.1(8). The supreme court

concludes that the driver’s prior statutory consent satisfied the consent exception to the

warrant requirement under the Fourth Amendment; therefore, the blood draw

conducted in this case was constitutional. Consequently, the supreme court reverses

the trial court’s order suppressing the blood-draw evidence.
                     The Supreme Court of the State of Colorado
                       2 East 14th Avenue • Denver, Colorado 80203


                                       2017 CO 24

                          Supreme Court Case No. 15SA291
                       Interlocutory Appeal from the District Court
                   Arapahoe County District Court Case No. 15CR1230
                        Honorable Frederick T. Martinez, Judge

                                  Plaintiff–Appellant:
                           The People of the State of Colorado,
                                            v.
                                  Defendant–Appellee:
                                  Oliver Benton Hyde.

                                    Order Reversed
                                        en banc
                                      April 17, 2017


Attorneys for Plaintiff–Appellant:
George H. Brauchler, District Attorney, Eighteenth Judicial District
Jennifer Gilbert, Deputy District Attorney
  Centennial, Colorado

Attorneys for Defendant–Appellee:
Graf & Associates, P.C.
Gregory C. Graf
 Greenwood Village, Colorado




JUSTICE HOOD delivered the Opinion of the Court.
JUSTICE EID concurs in the judgment, and CHIEF JUSTICE RICE and JUSTICE
COATS join in the concurrence in the judgment.
¶1      The defendant, Oliver Hyde, was involved in a single-vehicle accident that left

him unconscious. The police suspected that he might have been driving under the

influence of alcohol. Hyde was transported to the hospital, and, in accordance with

Colorado law, a sample of his blood was taken to establish his blood-alcohol

concentration (“BAC”).

¶2      Hyde was charged with driving under the influence of alcohol (“DUI”). He

sought to have the result of the blood test suppressed as evidence obtained through an

illegal search in violation of the Fourth Amendment to the United States Constitution.

The trial court granted his motion to suppress, and the People filed this interlocutory

appeal.

¶3      In this opinion, we consider whether this warrantless blood draw violated the

Fourth Amendment’s prohibition on unreasonable searches. By driving in Colorado,

Hyde consented to the terms of the Expressed Consent Statute, including its

requirement that he submit to blood-alcohol testing under the circumstances present

here.     Hyde’s statutory consent satisfied the consent exception to the Fourth

Amendment warrant requirement. We therefore conclude that in the circumstances

presented here, the blood draw was constitutional. Accordingly, we reverse the trial

court’s suppression order.

                             I. Facts and Procedural History

¶4      On February 10, 2015, just after midnight, Aurora Police Department (“APD”)

officers responded to an accident at Iliff Avenue and I-225, where the defendant had

driven his pickup truck into a light pole, despite seemingly safe driving conditions.


                                            2
One of the first officers to arrive on the scene found Hyde unconscious, pinned in the

driver’s seat, with blood gurgling from his mouth. She got within a few inches of Hyde

to determine whether he was breathing and smelled alcohol. Passengers in the truck

explained that they had attended a basketball game earlier that evening; one passenger

stated that Hyde had consumed three beers. After fire personnel extracted Hyde from

the truck, an ambulance crew took him to a nearby hospital. En route, Hyde regained

consciousness and became combative. Therefore, the ambulance crew sedated him.

¶5    APD requested that hospital staff perform a blood draw, which revealed that

slightly less than two hours after the accident, Hyde’s BAC was 0.06. That BAC level

permits an inference that Hyde drove while impaired by the consumption of alcohol.

See § 42-4-1301(6)(a)(II), C.R.S. (2016). Because Hyde was unconscious, APD did not

ask for his consent before ordering the blood draw. APD also did not seek a search

warrant.

¶6    The People charged Hyde with DUI. Hyde sought to suppress the blood-draw

evidence, arguing that the police lacked probable cause to request a blood-alcohol test

and that, by conducting a warrantless draw without his contemporaneous consent, the

police violated his Fourth Amendment right to be free from unreasonable searches.

¶7    The trial court found there was probable cause to believe Hyde was driving

under the influence, but it agreed with Hyde that the warrantless blood draw,

administered while he was unconscious and had no opportunity to refuse, violated the

Fourth Amendment. Relying primarily on Missouri v. McNeely, 133 S. Ct. 1552 (2013),

and the plurality opinion in People v. Schaufele, 2014 CO 43, 325 P.3d 1060, the trial


                                          3
court reasoned that while Colorado’s Expressed Consent Statute, section 42-4-1301.1,

C.R.S. (2016), deems drivers to have consented to a blood or breath test, this statutory

consent did not satisfy the consent exception to the warrant requirement because it did

not afford the unconscious driver the chance to return to consciousness and revoke his

consent. The trial court therefore granted Hyde’s motion to suppress the blood-draw

result.

¶8        The People filed this interlocutory appeal under section 16-12-102(2),

C.R.S. (2016), and C.A.R. 4.1. They ask this court to determine whether the trial court

erred in concluding that the warrantless blood draw violated the Fourth Amendment.

                                  II. Standard of Review

¶9        Review of a trial court’s suppression order presents a mixed question of fact and

law. 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.”).

                                       III. Analysis

¶10       We begin with an overview of the relevant provisions of Colorado’s Expressed

Consent Statute and the Fourth Amendment to the United States Constitution. We then


                                              4
consider whether the blood draw conducted in this case was permissible under the

Fourth Amendment. By driving in Colorado, Hyde consented to the terms of the

Expressed Consent Statute, including its requirement that he submit to blood-alcohol

testing under the circumstances present here. Hyde’s statutory consent satisfied the

consent exception to the Fourth Amendment warrant requirement.          We therefore

conclude that in the circumstances presented here, the blood draw was constitutional.

Accordingly, we reverse the trial court’s suppression order.

                               A. The Legal Backdrop

¶11      With the rise of motor vehicle usage in the twentieth century, states found

themselves confronting a grave problem: the devastating consequences of drunk drivers

on the nation’s roadways. Birchfield v. North Dakota, 136 S. Ct. 2160, 2167 (2016). In

response, states enacted laws making it illegal to drive while intoxicated. Id. But a

prohibition on drunk driving was not enough to conquer the problem. In order to

obtain evidence necessary for securing convictions under the new laws, states began to

enact implied consent laws designed to encourage drivers to submit to blood-alcohol

tests.   See Comment, The Theory and Practice of Implied Consent in Colorado,

47 U. Colo. L. Rev. 723, 724 (1976); Colo. Legis. Council, Research Pub. No. 123,

Highway Safety in Colorado 43 (1966) (“Advocates of implied consent argue that a

much greater conviction rate could be obtained against persons charged with driving

while under the influence than at present through adoption of implied consent

legislation.”).   These laws “require motorists, as a condition of operating a motor

vehicle within the State, to consent to BAC testing if they are arrested or otherwise


                                           5
detained on suspicion of a drunk-driving offense.”            McNeely, 133 S. Ct. at 1566

(plurality opinion).

¶12    Colorado first enacted an implied consent statute in 1967.           Ch. 356, sec. 2,

§ 13-5-30(3), 1967 Colo. Sess. Laws 753, 753–55. The current version of the law is the

Expressed Consent Statute (“the Statute”),1 codified at section 42-4-1301.1. The Statute

provides that any person who drives in the state is required to submit to a test to

determine the alcoholic content of the person’s blood or breath when requested to do so

by a law enforcement officer who has probable cause to believe the person was driving

under the influence of alcohol. § 42-4-1301.1(2)(a)(I). The Statute also states 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).

¶13    A conscious driver who refuses to submit to a test is subject to certain

administrative and evidentiary consequences spelled out in the statutory scheme. See

§ 42-2-126(3)(c)(I), C.R.S. (2016) (refusal leads to revocation of driver’s license);

§ 42-4-1301(6)(d), C.R.S. (2016) (refusal admissible at trial to prove guilt of DUI).

¶14    An unconscious driver, on the other hand, “shall be tested to determine the

alcohol or drug content of the person’s blood.” § 42-4-1301.1(8). In other words, under

the Expressed Consent Statute, the police need not wait until a drunk-driving suspect

returns to consciousness, in order to afford that suspect an opportunity to refuse.

1 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).


                                              6
¶15   A blood draw conducted pursuant to the Statute must comport with the Fourth

Amendment to the United States Constitution, which prohibits unreasonable searches

and seizures. U.S. Const. amend. IV; see also 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.”); McNeely, 133 S. Ct. at 1558 (majority opinion)

(explaining that a blood draw is a search).

¶16   Before the government may conduct a search, the Fourth Amendment generally

requires a warrant. See Kentucky v. King, 563 U.S. 452, 459 (2011). Still, “the ultimate

measure of the constitutionality of a governmental search is ‘reasonableness.’”

Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652 (1995). A warrantless search is

reasonable if it falls within one of certain recognized exceptions to the warrant

requirement. King, 563 U.S. at 459; see also People v. Rodriguez, 945 P.2d 1351, 1359

(Colo. 1997) (“Generally, warrantless searches and seizures are per se unreasonable

unless they satisfy one of the specifically established and clearly articulated exceptions

to the warrant requirement.”).

¶17   From time to time, the United States Supreme Court has been presented with

cases questioning whether warrantless blood tests are nevertheless reasonable under

the Fourth Amendment. In Schmerber v. California, 384 U.S. 757, 758–59 (1966), law

enforcement arrested the petitioner for DUI and ordered a blood test conducted despite

the petitioner’s refusal to consent. The petitioner claimed the blood-test result was the

product of an unconstitutional search and sought to have it excluded from evidence. Id.


                                              7
at 766–67. The Court explained that “the Fourth Amendment’s proper function is to

constrain, not against all intrusions . . . , but against intrusions which are not justified in

the circumstances, or which are made in an improper manner.” Id. at 768. In the

specific circumstances presented in the petitioner’s case, the Court concluded that the

need to procure BAC evidence before it was naturally eliminated from the petitioner’s

blood justified the warrantless test. Id. at 770–71 (“Particularly in a case such as this,

where time had to be taken to bring the accused to a hospital and to investigate the

scene of the accident, there was no time to seek out a magistrate and secure a

warrant.”).

¶18    More recently, in McNeely, the Supreme Court clarified that the body’s natural

metabolization of alcohol does not create an exigency in all circumstances. 133 S. Ct. at

1563 (“[W]hile the natural dissipation of alcohol in the blood may support a finding of

exigency in a specific case, as it did in Schmerber, it does not do so categorically.”).

However, while the Court rejected a per se exigency justification for warrantless blood

tests, the plurality spoke approvingly of implied consent laws such as Colorado’s as

alternate means for states to enforce their drunk-driving laws and secure BAC evidence.

Id. at 1566 (plurality opinion).

¶19    The Supreme Court’s latest examination of warrantless blood tests in the drunk-

driving context occurred last term, when the Court decided Birchfield v. North Dakota,

136 S. Ct. 2160.   In that case, a trio of petitioners challenged state laws imposing

criminal—rather than merely administrative or evidentiary—penalties on lawfully

arrested drivers who refuse to submit to blood or breath testing. See id. at 2185. On its


                                              8
way to reaching a determination on the validity of those laws, the Court considered

whether the search-incident-to-arrest exception to the Fourth Amendment warrant

requirement can justify warrantless chemical testing.     The Court concluded that a

warrantless breath test is constitutionally permissible as a search incident to a lawful

arrest for drunk driving, but a blood test, which it found more intrusive, is not. Id. at

2184–85.

¶20   Although the Birchfield Court ruled out justifying warrantless blood tests on the

basis of the search-incident-to-arrest exception, it expressed approval for justifying

them on the basis of still another exception: consent. The consent exception to the

warrant requirement may justify a warrantless search if it is “the product of an

essentially free and unconstrained choice by its maker.” People v. Licea, 918 P.2d 1109,

1112 (Colo. 1996) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 225 (1973)).

Consent is involuntary if it is “the result of duress or coercion, express or implied, or

any other form of undue influence exercised [by the police] against the defendant.”

Munoz-Gutierrez, ¶ 17, 342 P.3d at 444 (alteration in original) (quoting People v.

Magallanes-Aragon, 948 P.2d 528, 531 (Colo. 1997)).

¶21   In Birchfield, the Court endorsed the use of implied consent laws like Colorado’s

Expressed Consent Statute to secure BAC evidence in compliance with the Fourth

Amendment. The Court explained: “It is well established that a search is reasonable

when the subject consents, and that sometimes consent to a search need not be express

but may be fairly inferred from context.” 136 S. Ct. at 2185 (citation omitted). The

Court went on to affirm the constitutionality of implied consent laws that impose civil


                                           9
penalties and evidentiary consequences on drivers who refuse to comply with blood-

alcohol testing, id., as the Expressed Consent Statute does.

¶22   With this legal backdrop in mind, we now consider whether the warrantless

blood draw conducted while Hyde was unconscious violated the Fourth Amendment.

                      B. The Blood Draw Was Constitutional

¶23   By choosing to drive in the state of Colorado, Hyde gave his statutory consent to

chemical testing in the event that law enforcement officers found him unconscious and

had probable cause to believe he was guilty of DUI.2 § 42-4-1301.1(1) (“Any person who

drives any motor vehicle . . . throughout this state shall be deemed to have expressed

such person’s consent to the provisions of [the Expressed Consent Statute].”).

¶24   Hyde’s statutory consent also satisfied the consent exception to the Fourth

Amendment warrant requirement.3 This conclusion flows from recent Supreme Court


2 We recognize that section 42-4-1301.1(8) does not explicitly mention probable cause.
But it mandates that “[a]ny person who is dead or unconscious shall be tested to
determine the alcohol or drug content of the person’s blood . . . as provided in this
section.” § 42-4-1301.1(8) (emphasis added). We read “as provided in this section” to
incorporate the probable cause requirement contained in section 42-4-1301.1(5), which
states: “The tests shall be administered at the direction of a law enforcement officer
having probable cause to believe that the person had been driving a motor vehicle in
violation of [the prohibitions on DUI] . . . .” The People do not dispute the existence of
this probable cause requirement. Hyde does not now challenge the trial court’s factual
determination that there was probable cause to believe that he was driving under the
influence.
3 While we reach this conclusion in the unconscious-driver situation presented here, we
do not intend to suggest that a law enforcement officer may forcibly conduct a blood
draw on any driver who has revoked his or her statutory consent by refusing to submit
to a blood-alcohol test—in fact, the Expressed Consent Statute forbids forced draws,
except when there is probable cause to believe the driver has committed one 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


                                            10
precedent. As discussed above, in McNeely, 133 S. Ct. at 1563 (majority opinion), the

Supreme Court held that there is no categorical, per se exigency exception to the

warrant requirement based on the natural dissipation of alcohol in the bloodstream.

While Hyde suggests that this means that all warrantless, non-exigent, forced blood

draws are unconstitutional, McNeely was not so broad.                 McNeely concerned the

exigent-circumstances exception exclusively. And the McNeely plurality underscored

the utility of implied consent laws such as Colorado’s Expressed Consent Statute. See

id. at 1566 (plurality opinion).

¶25    The Supreme Court reaffirmed its approval of implied consent laws in Birchfield.

The respondents in that case argued that warrantless blood draws “are justified based

on the driver’s legally implied consent to submit to them.” Birchfield, 136 S. Ct. at 2185.

In response, the Court 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. (emphasis added) (citations omitted).

¶26    True, the Court’s approval extended only to implied consent laws that impose

civil penalties if a driver refuses to take a blood test; the Court considered laws that

impose criminal penalties on a driver’s refusal to be going a step too far. See id. But


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] . . . .”).


                                                11
Colorado’s Expressed Consent Statute falls into the former category—the Statute

imposes only civil, and not criminal, penalties on drivers who refuse to submit to a

blood test.   Birchfield therefore sanctions the warrantless blood draw that was

conducted here on the basis of statutory consent.4

¶27    So, any hope for Hyde’s claim that the blood draw was unconstitutional relies on

the premise that drivers have a right to refuse a chemical test. But that premise is

faulty: there is no constitutional right to refuse a blood-alcohol test. South Dakota v.

Neville, 459 U.S. 553, 560 n.10 (1983) (“[A] person suspected of drunk driving has no

constitutional right to refuse to take a blood-alcohol test.”); Cox v. People, 735 P.2d 153,

155 n.3 (Colo. 1987) (“[T]here is no constitutional right to refuse to submit to a chemical

test for blood alcohol content.”); Brewer v. Motor Vehicle Div., 720 P.2d 564, 568 (Colo.

1986) (same). To the contrary, any opportunity to refuse chemical testing is “simply a

matter of grace bestowed by the [state] legislature.” Neville, 459 U.S. at 565.

¶28    The plain language of the Expressed Consent Statute indicates that the Colorado

legislature did not intend to bestow that grace upon unconscious drivers. Section

42-4-1301.1(8) provides that an unconscious driver “shall be tested to determine [blood-

alcohol content].” (Emphasis added.) The legislature’s use of the word “shall” in a


4In Birchfield, the Court briefly touched on the problem of securing BAC evidence from
unconscious drivers, noting that “the police may apply for a warrant if need be.” Id. at
2184–85. But this statement was made in the context of the Court’s discussion of
whether blood draws may be justified under the search-incident-to-arrest exception to
the warrant requirement. The Court concluded that they may not. Id. at 2185. The
Court approved of the use of implied consent laws to secure BAC evidence, id., and the
Birchfield opinion does not call into question the constitutionality of section
42-4-1301.1(8).


                                            12
statute generally indicates its intent for the term to be mandatory. See, e.g., Pearson v.

Dist. Court, 924 P.2d 512, 516 (Colo. 1996); People v. Dist. Court, 713 P.2d 918, 921 (Colo.

1986). Thus, Hyde had neither a constitutional nor a statutory right to refuse the blood

draw.

¶29     Hyde relies on Schaufele, which, like this case, involved an unconscious driver

and a warrantless blood draw suppressed by the trial court. But in Schaufele, the

People sought—and were denied—a rule that would justify the warrantless blood draw

based on the exigent-circumstances exception to the warrant requirement.                See

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

waived exigent circumstances as a justification for the blood draw. Because exigent

circumstances are not at issue, Schaufele is inapposite.5

¶30     Finally, we respond to Hyde’s argument that allowing a blood test on an

unconscious driver violates the Equal Protection Clause of the Fourteenth Amendment

to the United States Constitution, U.S. Const. amend. XIV, by treating an unconscious

driver differently from a conscious driver, who is given the opportunity to refuse a test.

Because section 42-4-1301.1(8) does not involve a suspect class or abridge a fundamental

right, we analyze Hyde’s challenge under the rational basis standard of review. See

Higgs v. W. Landscaping & Sprinkler Sys., Inc., 804 P.2d 161, 164 (Colo. 1991). Under

this standard, “a statutory classification will stand if it bears a rational relationship to

5 Furthermore, we do not see any conflict with the plurality’s statement in Schaufele
that “Colorado’s express consent statute does not abrogate constitutional
requirements.” Id. at ¶ 28, 325 P.3d at 1066. Our holding today makes clear that
Colorado’s Expressed Consent Statute complies with constitutional requirements by
satisfying the consent exception to the warrant requirement.


                                            13
legitimate governmental objectives and is not unreasonable, arbitrary, or capricious.”

HealthONE v. Rodriguez ex rel. Rodriguez, 50 P.3d 879, 893 (Colo. 2002).              A

classification analyzed under the rational basis standard is presumed to be

constitutional, and the party challenging the classification bears the burden of proving

its unconstitutionality beyond a reasonable doubt. Id.

¶31    Hyde has not met that burden. When drivers are unconscious, law enforcement

officers are deprived of the evidence they typically rely on in drunk-driving

prosecutions: unlike conscious drivers, unconscious drivers cannot perform roadside

maneuvers, display speech or conduct indicative of alcohol impairment, or admit to

alcohol consumption. In order to effectively combat drunk driving, the state needs

some means of gathering evidence to deter and prosecute drunk drivers who wind up

unconscious.    Section 42-4-1301.1(8) satisfies that need.     Therefore, Hyde’s equal

protection challenge, like his Fourth Amendment claim, fails.

                                    IV. Conclusion

¶32    By driving in Colorado, Hyde consented to the terms of the Expressed Consent

Statute, including its requirement that he submit to blood-alcohol testing under the

circumstances present here. Hyde’s statutory consent satisfied the consent exception to

the Fourth Amendment warrant requirement.           We therefore conclude that in the

circumstances presented here, the blood draw was constitutional. Accordingly, we

reverse the trial court’s suppression order.

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



                                               14
JUSTICE EID, concurring in the judgment.

¶33   I agree with the majority’s ultimate disposition in this case and in the two

companion cases before the court, People v. Simpson, 2017 CO 25, __ P.3d __, and

Fitzgerald v. People, 2017 CO 26, __ P.3d __. I write separately, however, to explain

why I believe the results reached today are consistent with the rationale adopted in

Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). Specifically, Birchfield holds that

traditional implied consent statutes such as Colorado’s—which deem drivers to have

consented to BAC testing as a condition of driving upon the state’s roads and impose

administrative and evidentiary consequences upon refusal to test—meet the dictates of

the Fourth Amendment.       In Birchfield, the Court reasoned that “inferr[ing]” such

consent to search is reasonable, essentially as a matter of law, from the statutory

“context.” Id. at 2185. This rationale easily disposes of the cases before us today. In

Hyde, the defendant is deemed by statute to have consented to BAC testing by virtue of

driving on the roads, making irrelevant his inability to consent (due to his unconscious

state) at the scene. In Simpson, there is no impermissible coercion in informing the

defendant that he has been deemed to have consented to testing as a result of driving,

with administrative and evidentiary consequences for refusal, given that he was not

threatened with criminal sanctions for refusal (the problem in Birchfield). And in

Fitzgerald, there is no Fourth Amendment violation in imposing evidentiary sanctions

for refusal to take a test to which the defendant was deemed to have impliedly

consented. Because the majority does not fully embrace and apply this rationale, I

respectfully concur only in the judgments it reaches.


                                            1
¶34    As the majority points out, under Colorado’s Expressed Consent law—what

other states call “implied consent”—anyone who drives in Colorado “shall be deemed

to have expressed such person’s consent” to the provisions of section 42-4-1301.1,

including taking a BAC test, either of breath or blood, when required to do so by a law

enforcement officer. § 42-4-1301.1(1), (2)(a), C.R.S. (2016). If the driver refuses to submit

to such testing, his or her driver’s license is revoked for a year or more,

§ 42-2-126(3)(c)(I), C.R.S. (2016), and evidence of such refusal is admissible at a

subsequent trial for certain driving-related offenses. § 42-4-1301(6)(d), C.R.S. (2016). If

the driver is unconscious, he or she “shall be tested” through administration of a blood

test. § 42-4-1301.1(8), C.R.S. (2016). In this instance, Hyde was unconscious; once at the

hospital, his blood was drawn and tested.

¶35    Hyde argued before the trial court that the results of his blood test should be

suppressed because he was given no opportunity to refuse the test due to his

unconscious state. The trial court agreed. The court relied on the plurality opinion of

this court in People v. Schaufele, 2014 CO 43, ¶ 28, 325 P.3d 1060, 1066 (plurality

opinion), which appeared to cast doubt on the validity of implied consent as an

adequate justification under the Fourth Amendment.             Specifically, the Schaufele

plurality stated, in a passage cited by the trial court in this case, “[T]he trial court [in

Schaufele] correctly noted that, notwithstanding Missouri’s implied consent statute, the

Supreme Court presumed in [Missouri v. McNeely, 133 S. Ct. 1552 (2013) (plurality

opinion)] that the Fourth Amendment requires a search warrant before a blood draw,

absent exigent circumstances. And it correctly noted that our own case law makes clear


                                             2
that Colorado’s express consent statute does not abrogate constitutional requirements.”

Schaufele, ¶ 28, 325 P.3d at 1066 (emphasis added) (citation omitted). This passage

from the Schaufele plurality seems to suggest that implied consent was not sufficient to

justify a warrantless blood draw, and that instead the police would have to rely on

exigent circumstances. See also id. at ¶ 22, 325 P.3d at 1065 (“Like Schaufele, the

defendant [in McNeely] was subject to a statutory implied consent law due to his

operation of a motor vehicle. Yet he successfully moved to suppress his blood draw

results [on the ground that] . . . the police officer who ordered it did not attempt to

secure a warrant.” (citation and footnote omitted)). But see id. at ¶ 42, 325 P.3d at 1068

(stating that the plurality “[did] not mean to imply that a warrant is always necessary in

involuntary blood draw cases”).

¶36   Today, the majority implicitly—and correctly, in my view—rejects this

implication from Schaufele, recognizing that “[i]n Birchfield, the Court endorsed the use

of implied consent laws like Colorado’s Expressed Consent Statute to secure BAC

evidence in compliance with the Fourth Amendment.” Maj. op. ¶ 21; see also id. at ¶ 29

n.5 (noting that there is no conflict between the result it reaches and the Schaufele

plurality’s statement that the expressed consent statute does not abrogate constitutional

requirements, as those requirements are met by the statute). But the majority goes no

further in analyzing Birchfield’s rationale for its approval of implied consent statutes

like Colorado’s. See, e.g., maj. op. ¶¶ 21, 25 (noting Birchfield’s approval of implied

consent laws).




                                            3
¶37    The Court in Birchfield reasoned that traditional implied consent laws like

Colorado’s—namely, laws that deem a person to have consented to BAC testing by

virtue of driving, with administrative and evidentiary consequences for refusal to test—

are reasonable under the Fourth Amendment. The initial question before the Court was

whether a blood or breath test could be performed consistent with the Fourth

Amendment as a search incident to arrest.       See 136 S. Ct. at 2174 (“We therefore

consider how the search-incident-to-arrest doctrine applies to breath and blood tests

incident to such arrests.”).    The Court stated that breath tests do not implicate

significant privacy concerns, emphasizing that “the physical intrusion [of the breath

test] is almost negligible.” Id. at 2176. Blood tests, by contrast, are significantly more

intrusive, and “place[] in the hands of law enforcement authorities a sample that can be

preserved and from which it is possible to extract information beyond a simple BAC

reading.” Id. at 2178. The Court went on to consider the need for BAC testing, which it

determined to be “great.” Id. at 2184. “Having assessed the effect of BAC tests on

privacy interests and the need for such tests,” the Court concluded that a warrantless

breath test, but not a warrantless blood test, could be conducted as a search incident to

arrest. Id. at 2184–85.

¶38    Because the warrantless blood test could not be justified by the search-incident-

to-arrest doctrine, the Court moved on to consider the state’s alternate argument: that

the test was justified by the driver’s implied consent.     Id. at 2185. In considering

whether the driver’s implied consent could justify the warrantless blood draw in

question, the Court stated that “[i]t is well established that a search is reasonable when


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the subject consents.” Id. (citing Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973)).

Further, the Court stated that “sometimes consent to a search need not be express but

may be fairly inferred from context.” Id. For this proposition, the Court cited, inter

alia, Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978), which involved implied consent

principles as applied to highly regulated industries.6

¶39   From here, the Birchfield Court emphasized: “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. See, e.g., [McNeely

and South Dakota v. Neville, 459 U.S. 553 (1983)]. Petitioners do not question the

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

them.” 136 S. Ct. at 2185 (emphasis added). The problem with using implied consent in

the case before it, however, was that North Dakota—unlike Colorado—“impose[d]

criminal penalties on the refusal to submit to such a test.” Id. According to the Court,

“[t]here must be a limit to the consequences to which motorists may be deemed to have

consented by virtue of a decision to drive on public roads,” id., and North Dakota had

exceeded that limit by imposing a criminal sanction on refusal.

¶40   Importantly for the cases before us today, the Birchfield Court reaffirmed the

validity of implied consent statutes that “infer[]” consent from the “context” of the

search. Id. For example, the Court cited to Marshall, where the question was whether

implied consent could justify an OSHA search of a plumbing business. OSHA pointed

6The Birchfield Court also cited Florida v. Jardines, 133 S. Ct. 1409, 1415–16 (2013); the
context there involved the front porch, where one implicitly consents to visitors
knocking on the door, but not to visitors conducting a dog sniff.


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to cases involving highly regulated industries where there is “such a history of

government oversight that no reasonable expectation of privacy . . . could exist for a

proprietor over the stock of such an enterprise.” Marshall, 436 U.S. at 313 (citation

omitted). The Court recognized that “[t]he businessman in a regulated industry in

effect consents to the restrictions placed upon him.” Id. (citation omitted). The Court

rejected OSHA’s reliance on this rationale, however, reasoning that a plumbing

business would fall outside the category of highly regulated businesses in which

consent to a search is implied. Id.

¶41    In both Birchfield and Marshall, the Court looked at the overall statutory regime

in which the search was to take place, not the individual facts at the time the search was

conducted, to determine whether implied consent would apply. To use Birchfield’s

terminology, the Court essentially “inferred” consent as a matter of law from the

“context.” Driving on the roads and being engaged in a highly regulated industry are

two such contexts from which consent can be inferred. Reinforcing this point, the

Birchfield Court remanded the case involving the North Dakota defendant for further

proceedings to determine whether his consent was voluntary under the totality of the

circumstances. 136 S. Ct. at 2186. Because implied consent could not support the search

given the impermissible threat of criminal sanction, the Court left it to the state court on

remand “to reevaluate [the defendant’s] consent given the partial inaccuracy of the

officer’s advisory.” Id.

¶42    Applying this reasoning here, the defendants’ arguments in the three cases

before us must fail. In this case, Hyde emphasizes that he was unconscious at the time


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and was incapable of consenting to the blood draw at the time it was performed. But in

light of Birchfield, his consent is implied from the context of driving. In particular,

section 42-4-1301.1(2)(a)(I) states that “[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 . . . when so requested and directed by a law enforcement

officer.” (Emphasis added). Further, in the case of the unconscious driver such as

Hyde, the driver is not “requested and directed” to take the test, but rather “shall be

tested.” § 42-4-1301.1(8). Therefore, when the officers arrived at the scene, Hyde had

already been deemed to have consented to a blood draw by virtue of the fact that he

drove on the roads of Colorado. Under Birchfield, nothing more was necessary to

comport with the Fourth Amendment. Thus, contrary to the trial court’s ruling in this

case, it was of no consequence that Hyde was not in a position to consent at the scene,

nor was it necessary for the police to obtain a warrant. Accordingly, the trial court’s

suppression order should be reversed.

¶43   This rationale similarly disposes of the companion cases we address today. In

Simpson, for example, the trial court’s suppression order was based on the same

misunderstanding as the trial court’s ruling in this case—namely, that implied consent

is insufficient to satisfy the dictates of the Fourth Amendment. The trial court reasoned

that Simpson’s consent could not be voluntary because he was presented with a form

stating that, by driving in Colorado, he had consented to taking a BAC test, and would

face administrative and evidentiary consequences for refusal. Hearing Tr. 89 (finding


                                           7
that the form contained “express threats and statements that [Simpson] already

consented to submit to a blood and breath test” and stating that “[u]nder those

circumstances, . . . [the court] [has] to find that this does not constitute valid consent for

[constitutional purposes]”).

¶44    The trial court’s reasoning is misguided because there can be no coercion in a

form that accurately summarizes the relevant provisions of Colorado’s implied consent

statute—namely, one that informs the defendant that a driver is deemed to have

consented to a BAC test by virtue of driving, and will face evidentiary and

administrative consequences for refusing to be tested.           Under Birchfield, implied

consent is permissible here because, as noted above, the Colorado statute, unlike North

Dakota’s, does not impose criminal sanctions for refusal to test, and Simpson makes no

claim that he was threatened with criminal sanctions. Therefore, the majority should

reverse the trial court’s suppression order on the ground that, because the form

accurately summarized the relevant (and constitutionally sufficient) provisions of

Colorado’s implied consent statute, it could not be coercive. Instead, the majority holds

that there was no need for the trial court to assess Simpson’s consent at the time of his

encounter with law enforcement, Simpson, 2017 CO 25, ¶ 25, __ P.3d __, which is true,

but only because the form was not coercive. See, e.g., Birchfield, 136 S. Ct. at 2186

(remanding case for voluntariness determination where implied consent could not

support search given threat of criminal sanction).

¶45    Finally, in Fitzgerald, Fitzgerald argues that the introduction of evidence of his

refusal to test at his trial for driving while ability impaired violated the Fourth


                                              8
Amendment. Fitzgerald’s argument must be rejected because, as noted above, the

Birchfield Court held that statutes that imply consent to BAC testing from the act of

driving, as well as impose evidentiary consequences for refusal, are reasonable under

the Fourth Amendment. Therefore, the Supreme Court has more than “all but said” as

much, as the majority concludes, Fitzgerald, 2017 CO 26, ¶ 26, __ P.3d __; it has said it.

Accordingly, I would, on this ground, affirm the district court’s opinion affirming the

county court’s disposition of the case.

¶46    In the end, these three cases raise the same question: does Colorado’s statute

providing for implied consent satisfy the dictates of the Fourth Amendment under the

circumstances of these cases. All three should be resolved with the same answer: yes. I

therefore concur only in the judgment reached by the majority in the three cases.

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

this concurrence in the judgment.




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