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Colorado DUI – DWAI Investigations – Can The Police Come Into My House To Arrest Me?

By Colorado DUI – DWAI – DUID – Criminal Defense Lawyer – H. Michael Steinberg

Colorado DUI – DWAI Investigations – Can The Police Come Into My House To Arrest Me? This is a question that arises constantly in the context of intoxicated individuals who “make it home” after drinking and driving.. The Colorado Supreme Court answered the question in the 2010 Case of People v.Wehmas – decided on November 22, 2010. The answer is most likely – NO they can’t ..but read on.

Colorado DUI - DWAI Investigations - Can The Police Come Into My House To Arrest Me?

Colorado DUI – DWAI Investigations – Can The Police Come Into My House To Arrest Me?

The Legal Issues In Wehmas

Is a warrantless home entry justified where the criminal investigation is for DUI? Is A Colorado DUI investigation the kind of “grave offense” that would justify such a home invasion because of “dissipating blood alcohol levels” in the body of a DUI suspect?

Is the loss or “destruction” of this evidence sufficient to constitute the kind of emergency or “exigent circumstance” to legally permit such an entrance?

The Answer in Wehmas was  – NO

A Colorado DUI Police Investigation – The Facts Of Wehmas

Arnold Wehmas was alleged to have been driving drunk – hitting a parked car in the parking lot of his apartment complex and then going to his apartment without exchanging information with the owner of the car he hit.

Arresting officers entered Wehmas’s apartment without obtaining a search or arrest warrant first. At trial – Wehmas demanded that the judge suppress all evidence that was obtained as a result of the warrantless entry.

At around 3 a.m. in the morning – two witnesses testified they observed Wehmas drive his van into a parked vehicle in the parking lot of his apartment complex. Police arrived – interviewed the two witnesses, saw the damage- identified Wehmas as being drunk – and then identified Wehmas’s apartment.

The police knocked on Wehmas’s door – received no answer – then contacted the property owner, who opened the apartment door – and arrested a sleeping – and drunk Wehmas.

Colorado DUI – DWAI Investigations – Can The Police Come Into My House To Arrest Me? – The Legal Issues

The Fourth Amendment of the United States Constitution and article II, section 7 of the Colorado Constitution makes unlawful all “unreasonable searches and seizures.” A physical entry of a persons home was the primary location that was behind the wording of the Fourth Amendment.

Because entry into a citizen’s home without a warrant is UNCONSTITUTIONAL unless the entry is supported by both probable cause AND falls within one of the narrowly defined exceptions to the arrest or search warrant requirement.

The key here is a legal concept know as “exigent (or emergency) circumstances.”

To admit the evidence at trial against the defendant – the Colorado Supreme Court had face the issue of whether the RISK of the IMMEDIATE DESTRUCTION OF EVIDENCE (in the form of the alcohol “dissipating” in this Defendant’s blood – justified warrantless entry into Wehmas’s home.

The Law After People v Wehmas

It is clear from the facts that the police DID have probable cause to arrest Wehmas. The reason why this case is important is for the second issue – whether – in the is situation – the police had exigent circumstances that would permit them involuntary entry into the home.

“Gravity of the Offense” Analysis

While the prosecution argued that a “first time” DUI was the kind of “serious offense,” that always permits a warrantless entry into a person’s home where there is probable cause top believe that a DUI has occurred.

“The degree of gravity and its influence on our analysis will vary with the severity of the DUI charged.”.. The more severe “DUI crimes” under Colorado law that give the police a basis for physically compelling the defendant to undergo chemical testing are much more serious – are such crimes as criminally negligent homicide, vehicular homicide, assault in the third degree, or vehicular assault)…§ 42-4-1301.1(3), C.R.S.

Under Colorado law a police officer cannot physically require submission to a chemical test unless there is probable cause to believe that the person has committed criminally negligent homicide, vehicular homicide, assault in the third degree, or vehicular assault)

Here is the Law – § 42-4-1301.1(3), C.R.S.

3) Any person who is required to take and to complete, and to cooperate in the completing of, any test or tests shall cooperate with the person authorized to obtain specimens of such person’s blood, breath, saliva, or urine, including the signing of any release or consent forms required by any person, hospital, clinic, or association authorized to obtain such specimens. If such person does not cooperate with the person, hospital, clinic, or association authorized to obtain such specimens, including the signing of any release or consent forms, such noncooperation shall be considered a refusal to submit to testing.

  • 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 pursuant to section 18-3-105, C.R.S., vehicular homicide pursuant to section 18-3-106 (1) (b), C.R.S., assault in the third degree pursuant to section 18-3-204 , C.R.S., or vehicular assault pursuant to section 18-3-205 (1) (b), C.R.S., 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.

The Court concluded that under these facts – this first-time DUI offense was NOT a sufficiently grave offense such that warrantless home entry was valid. But the analysis did not end there.

DUI Is A Sufficiently Grave Offense But Exigent Circumstances Not Present – NO Admission Into Home Without Warrant Or Consent

The Court suggested that in SOME CASES – a certain more severe kind of DUI could be the kind of grave offense that might justify a warrantless home entry. Every case will turn on a review of the circumstances surrounding the specific warrantless entry in question.

Were There Exigent Circumstances In This Case?

To ascertain whether exigent circumstances justify a warrantless entry into a person’s home requires a close review of the totality of the circumstances of the particular emergency at issue.

What is needed then are the following:

(1) a grave offense must be involved, (such as a crime of violence);

(2) the suspect is reasonably believed to be armed;

(3) there exists a clear showing of probable cause to believe that the suspect committed the crime;

(4) there is a strong reason to believe that the suspect is in the premises being entered;

(5) the likelihood exists that the suspect will escape if not swiftly apprehended;

and

(6) the entry can be made peaceably.

(7) is the warrantless entry to be made at night?

In Possible Destruction Of Contraband Cases (Such As Drug Crime Cases) There Are Additional Factors That Are Then Added To The Analysis

(1) the degree of urgency and the time required to obtain a warrant;

(2) reasonable belief that evidence or contraband would be removed or destroyed;

(3) information that those in possession of the evidence or contraband are aware that the police are closing in;

and

(4) the ease of destroying the evidence or contraband and the awareness that narcotics dealers often try to dispose of narcotics and escape under the circumstances.

There are strong constitutional protections against warrantless home entry, “so there must be a significant showing of urgency before concluding that it was reasonable for officers to make a home entry without first obtaining a warrant. This high burden properly protects the sanctity of the home in accord with the federal and state constitutions.”

The Court’s Decision – No Exigent Circumstances Exist To Justify Entering Home

In this case – the State of Colorado failed to show sufficiently exigent circumstances to justify a warrantless entry.

Blood Alcohol Dissipation In Colorado DUI Cases Different Than Drug Crime Cases

The Court found that – unlike drug contraband cases – drugs can be quickly be flushed or burned in the home, evidence of blood alcohol content in DUI cases — is “an ever-changing characteristic that is wholly internal to a defendant — and cannot be actively “destroyed.”

Further there is no guarantee that even if the police gained entry -” the suspect will assent to a chemical test and that such a test, though mandatory in Colorado, cannot be physically compelled for driving offenses not involving violence or harm to a victim. (§ 42-4-1301.1(3), C.R.S.)

Since this was NOT a case involving criminally negligent homicide, vehicular homicide, assault in the third degree, or vehicular assault) – a suspect in a basic DUI – can refuse a chemical test.

For that reason – the argument supporting the destruction of evidence claim which is in the context of blood alcohol content testing failed.

Blood alcohol test results are just one type of evidence that is available in a DUI – DWAI prosecution.

Unlike drug crime prosecutions – other evidence that a person is intoxicated is often available and blood alcohol tests are not essential to prosecuting DUI cases.

THEREFORE – the State of Colorado’s need to obtain BAC evidence does not create the kind of “imminency required to override the constitutional protection against warrantless entry.”

The officers had plenty of time to obtain a warrant and “no evidence was presented showing an inability to secure the premises while waiting for a warrant” thus the prosecution could not meet their burden of proof to show that exigent “emergency” circumstances existed to jusify the warrantless entry.

H. Michael Steinberg’s Take

I read this case to mean that the police CANNOT enter your home in a routine DUI investigation without a search or arrest warrant or your or another authorized person’s consent to enter. This is a victory for those accused of DUI under the circumstances of this case.. circumstances that are very common indeed.

Some Thoughts (see ACLU Site – as well):

The police can search your home only if they have a warrant or your consent or the consent of your roommate or a guest if the police reasonably believe that person has the apparent authority to consent.

If the police come to your home to investigate you for a Colorado DUI and they are at the door instead of opening the door, ask through the door if they have a search or arrest warrant. If the answer is no, do not let them into your home and do not answer any questions or say anything. You should say only “I do not want to talk to you.”

If the police do have a warrant – tell them to slip it under the door (or show it to you through a peephole, a window in your door, or a door that is open only enough to see the warrant).

Then call your lawyer as soon as possible – if you don’t have a Colorado criminal lawyer – call me – anytime – 720-220-2277

If the police do not have a search or arrest warrant – do NOT interfere with the search in any way because you could get arrested. Make it clear that you have not given your consent and that the search is against your wishes. Ask anyone present to act as a witness to the fact that you are not giving permission for the search.

Some Important Colorado DUI Laws To Read – (Here Is A LINK To Get And Review These Laws

42-4-1301. Colorado Driving under the influence – driving while impaired – driving with excessive alcoholic content – penalties.

42-4-1301.2. Refusal of test – effect on driver’s license – revocation – reinstatement.

42-4-1301.1. Expressed consent for the taking of blood, breath, urine, or saliva sample – testing.

42-2-132.5. Mandatory and voluntary restricted licenses following alcohol conviction.

42-2-127. Authority to suspend license – to deny license – type of conviction – points.

42-2-126. Revocation of license based on administrative determination.

42-2-125. Mandatory revocation of license and permit.

42-2-132. Period of suspension or revocation.

Colorado DUI – DWAI Investigations – Can The Police Come Into My House To Arrest Me?

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H. Michael Steinberg Esq.
Attorney and Counselor at Law
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