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The Involuntary Taking of Blood on Suspicion of DUI, DWAI or Vehicular Assault

I am often asked whether police have authority to forcefully take blood upon suspicion of the commission of certain traffic and felony offenses such as DUI, DWAI or Vehicular Assault and or Vehicular Homicide when the person is dead or unconscious.

We begin with Colorado’s Express Consent Law – Consent to Blood Draw – Statute:

Section 42-4-1301.1, C.R.S. 2010, Provides in Pertinent Part
  1. Any person who drives any motor vehicle upon the streets and highways throughout this state shall be deemed to have expressed such person’s consentto the provisions of this section.
      1. A person who drives a motor vehicle upon the streets and highways… 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, DUI per se, DWAI, [or similar crimes]….
  1. Any person who is dead or unconscious shall be tested to determine the alcohol or drug content of the person’s blood or any drug content within such person’s system as provided in this section.

The police are required to have probable cause to believe defendant had been driving a motor vehicle in violation of any of the laws enumerated in section 42-4- 1301.1(2)(a)(I) before they can draw blood from him while he – she is unconscious.

“The probable cause determination rests on all of the facts and circumstances known to the police at the time of the arrest.” People v. Schall, 59 P.3d 848, 851 (Colo. 2002).

Probable cause to draw blood exists when the facts and circumstances known to the police support the reasonable belief that the defendant committed an alcohol-related offense.

What is Probable Cause?

“The police have probable cause to arrest when the facts and circumstances known to the police are sufficient to warrant the belief by a reasonable and prudent person that the defendant committed an alcohol-related offense.”.

“Probable cause may be based on circumstantial evidence, and the police are entitled to draw appropriate inferences from the circumstantial evidence, even though the evidence might also support other inferences.”

Under section 42-4- 1301.1(2)(a)(I), police need probable cause to believe that a person was driving a motor vehicle in violation of the prohibitions against DUI, DWAI, or other similar crimes before they may require that person to submit to testing.

Because DWAI has a lower proof threshold than DUI, the probable cause determination for DWAI has a lower proof threshold as well.

When you compare DUI – § 42-4-1301(1)(f) , C.R.S. 2010 (“‘[d]riving under the influence’ means driving a motor vehicle… when a person has consumed alcohol… that affects the person to a degree that the person is substantially incapable… to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle”),

with DWAI § 42-4-1301(1)(g) , C.R.S. 2010 (“‘[d]riving while ability impaired’ means driving a motor vehicle… when a person has consumed alcohol… that affects the person to the slightest degree so that the person is less able than the person ordinarily would have been… to exercise clear judgment, sufficient physical control, or due care in the safe operation of a vehicle”).

The Probable Cause standard for each of these crimes is different because of the nature of the elements of the crimes. The threshold for probable cause to arrest for the crime of DWAI is – by definition – lower than that for the crime of DUI.

The probable cause determination rests on all of the facts and circumstances known to the police at the time of the arrest.

Probable cause to draw blood exists when the facts and circumstances known to the police support the reasonable belief that the defendant committed an alcohol-related offense.

The police have probable cause to arrest when the facts and circumstances known to the police are sufficient to warrant the belief by a reasonable and prudent person that the defendant committed an alcohol-related offense.

Probable cause may be based on circumstantial evidence, and the police are entitled to draw appropriate inferences from the circumstantial evidence, even though the evidence might also support other inferences.

Our Denver, Colorado based firm at the Steinberg Colorado Criminal Defense Law Firm is known for our effective legal strategies, which we customize to each case so that we can secure the best outcome possible. Depending on the specifics of your criminal case, there may be motions that we can file to suppress certain evidence or get the charges against you reduced or dismissed. If warranted, we may be able to reach a plea agreement with prosecutors. We will aggressively defend you in court if your case goes to trial.

Do NOT talk to anyone in law enforcement until you’ve retained the services of a Colorado criminal defense lawyer. Call the Steinberg Colorado Criminal Defense Law Firm at 303-627-7777 or contact us online.

Steinberg Colorado Criminal Defense Law Firm serves criminal defendants in the Greater Denver area and in other cities and counties throughout Colorado. Our law offices are located on I-25 at Arapahoe Road – adjacent to an RTD Light Rail stop.

H. Michel is available for consultation after hours and on weekends.

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