People v. Reynolds

Justice VOLLACK

dissenting:

The majority concludes that Officer Williams did not have probable cause to obtain a blood sample from the defendant, Ranee Randall Reynolds (Reynolds), without his consent. Relying simply on the fact that the People did not produce any evidence as to physical manifestations or behavior by Reynolds which would clearly indicate intoxication, the majority determines that there was “[nothing] independent of the fact of the accident ... that supports] a reasonable conclusion that the accident was alcohol-related,” that is, “[no] factual basis to warrant a finding of probable cause.” Maj. op. at 1062. The majority therefore affirms the trial court’s order suppressing the defendant’s blood alcohol test.

I disagree with the majority’s analysis. I believe that the majority raises the standard of probable cause in obtaining a blood sample without a defendant’s consent to a higher threshold than the law requires. In my view, the fact that a single-ear accident had occurred in which Reynolds was the driver, that Reynolds had admitted to consuming approximately three beers earlier that evening, and that the officer had extensive experience and training in investigating DUI eases, satisfies the probable cause requirement for obtaining a blood sample to determine if Reynolds was intoxicated at the time of the accident without Reynolds’ consent. Because I believe that the evidence when viewed under the totality of the circumstances satisfies the probable cause requirement, I dissent to the majority opinion and would reverse the district court’s suppression of the blood test results.

I.

Reynolds was charged with vehicular assault,¹ driving under the influence of alcohol,² driving with excessive alcohol content,³ and reckless driving.⁴

Reynolds moved to suppress several items of evidence, including, inter alia, the results of the blood alcohol test performed on him at the hospital. On November 21, 1994, the Yuma County District Court held a suppression hearing in which Officer David L. Williams of the Wray Police Department testified. A brief review of Officer Williams’ testimony which reflects the uncontroverted facts and circumstances surrounding this case, in addition to those set out in the majority opinion, is helpful.

Reynolds was the driver of an automobile involved in a single-vehicle traffic accident at approximately 3:00 a.m. The car hit the guardrail and caught fire. Reynolds and his passenger escaped from the vehicle; however, they both sustained burns requiring medical attention and were transported to the hospital.

Officer Williams was dispatched to the hospital to investigate the accident. Officer Williams had not been at the scene of the accident and therefore did not have an opportunity to conduct an on-the-scene investigation.

Officer Williams, a uniformed police officer, approached Reynolds, who was in the emergency room receiving medical treatment. Officer Williams identified himself to Reynolds as the officer investigating the accident. Officer Williams asked Reynolds if he was the driver of the car; Reynolds stated that he was. Officer Williams additionally asked Reynolds if he had consumed any alcoholic beverages prior to the accident. Reynolds stated that he had consumed approximately three beers between 6:30 and 8:30 p.m. that night. Officer Williams testified that he did not observe any slurred speech, bloodshot eyes, or incoherent behavior, and was unable to recall whether he smelled the odor of an alcoholic beverage on Reynolds’ breath. According to Officer Williams, he asked Reynolds to submit to a blood alcohol test since the officer was unable to administer a breathalyzer test given the burned and blistered condition of Reynolds’ lips. Reynolds refused to perform this test.

Officer Williams testified that in his career as a police officer he had investigated approximately nine to twelve DUI cases. Based on his experience in investigating DUI cases, Officer Williams testified that persons suspected of driving under the influence tend to minimize the amount of alcohol they have consumed and exaggerate the amount of time that has transpired since they have consumed it.

Officer Williams was advised by the emergency room doctor that blood was going to be drawn from the defendant. Officer Williams therefore ordered a medical staff member to draw Reynolds’ blood to test his blood alcohol content since the officer suspected that an alcohol-related offense may have occurred. The officer provided the staff person with a DUI blood testing kit and Reynolds’ blood was drawn approximately an hour and a half after the accident had occurred. Officer Williams testified that the test results indicated Reynolds’ blood alcohol level to have been at .129.⁵

At the conclusion of the hearing, the district court suppressed the results of the blood test performed on Reynolds at the hospital, finding that Officer Williams lacked probable cause to request that blood be drawn. Specifically, the trial court reasoned as follows:

In [People vj Sutherland, [683 P.2d 1192 (Colo.1984),] however, the defendant ... says “I was too drunk and I was in the back seat.” Had a situation in the Sutherland case where two people claimed that the other guy was driving the vehicle, but they were both observed by the officer, either by their statements or by their behaviors, to be under the influence. We don’t have that. All we have is evidence of three beers from 6 to 8 [p.m]. And I don’t think the officer had any probable cause in this case to demand blood tests.

II.

An officer, having probable cause to believe that a person was driving a motor vehicle while under the influence of alcohol and that the conduct was the proximate cause of serious bodily injury to another person, may request that the person submit to a blood test for purposes of determining the alcoholic content within his system. If the person refuses to cooperate in the implementation of such a test, the test may be performed at the direction of the police officer having probable cause, without the person’s consent. § 18-3-205(4)(a), 8B C.R.S. (1994 Supp.).

Probable cause exists when the facts and circumstances known to the officer are sufficient to warrant the belief by a reasonable and prudent person, in light of that person’s training and experience, that the blood sample will provide evidence that the defendant was driving while intoxicated. See People v. Roybal, 655 P.2d 410 (Colo.1982). “In evaluating probable cause, we have often stated that probability, not certainty, is the touchstone of reasonableness under the fourth amendment....” People v. Thompson, 793 P.2d 1173, 1175 (Colo.1990).

The purpose of a blood test, when a serious accident has occurred and a driver/suspect is in need of prompt medical attention, is to confirm or dispel suspicions of intoxication by preserving highly evanescent evidence of the blood alcohol content.

I agree with the majority that the trial court applied the correct legal standard — a probable cause standard. I dissent because in my view the fact that a single-car accident had occurred in which Reynolds was the driver, that Reynolds had admitted to consuming approximately three beers earlier that evening, and that the officer had extensive experience and training in investigating DUI cases, satisfies the probable cause requirement for obtaining a blood sample without Reynolds’ consent. I therefore would reverse the district court’s suppression of the blood test results.

The majority devalues the significance of the officer’s experience in DUI investigations that persons driving under the influence of alcohol tend to minimize the amount of alcohol they have consumed and exaggerate the length of time that has transpired since they consumed it, and instead focuses solely on the fact that the officer did not observe any physical symptoms or indications suggesting that Reynolds was intoxicated. Maj. op. at 1062-1063. In determining that the evidence merely presented a suspicion that Reynolds was involved in an alcohol-related offense, the majority reasons as follows:

[T]he occurrence of an automobile accident involving a person who had three beers more than six hours before the accident, while creating a suspicion that alcohol consumption played a role, does not alone provide a sufficient basis for a reasonable and prudent person to conclude the defendant was driving while intoxicated. Here, because there were no witnesses to the speed and direction of the pickup truck before the accident, there is no factual basis or evidence to conclude that Reynolds’ accident occurred as a result of his misconduct or due to his driving under the influence of alcohol. No evidence was presented to suggest that Reynolds had been driving recklessly or that he had engaged in any misconduct.

Maj. op. at 1062.

In my opinion, the majority raises the probable cause standard to a higher threshold than the law requires. The fact that there were no witnesses to the accident does not diminish the officer’s belief that the accident may have been alcohol-related.

Further, the majority’s reliance on People v. Williams, 192 Colo. 249, 557 P.2d 399 (1976), for the proposition that “evidence of drinking on the day of the suspected illegal conduct, alone, will not establish probable cause,” maj. op. at 1061, is misplaced since at issue in Williams was the investigation of a homicide in which the defendant was charged with manslaughter, and not with any crime directly related to alcohol. Underlying this court’s conclusion in Williams that the evidence supported “no more than a mere suspicion that she might have been intoxicated several hours later,” 557 P.2d at 407, was the fact that evidence did not exist indicating that the defendant had consumed an alcoholic beverage, the amount of alcohol that she drank, or the time lapse between the shooting and when she allegedly had several alcoholic beverages. Moreover, under the circumstances presented in Williams, no exigent circumstances existed to justify the police in taking a blood sample without first obtaining a warrant. Id. at 404, 192 Colo. 249. This is not the situation presented here, where Reynolds admitted to the police officer that he had consumed several alcoholic beverages earlier that evening and was involved in a car accident later that night and where Reynolds was in the hospital in serious condition.

In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), the defendant had been involved in an automobile accident and was taken to a hospital. Although Schmerber refused to allow his blood to be withdrawn, a sample of the defendant’s blood was withdrawn by a physician at the police officer’s request.

The Supreme Court held that the police were justified in taking the blood sample from the defendant. The Court noted that the taking of a blood sample without permission did not violate the Fourth Amendment so long as the circumstances justified taking the sample and the means and procedures used to obtain the sample were reasonable. Id. at 770, 86 S.Ct. at 1835. The Court concluded that, under the circumstances, the officers were justified in taking the sample because there was probable cause to believe that Schmerber had been driving while under the influence of alcohol and because the inevitable dissipation of alcohol in the blood created exigent circumstances. The Court reasoned as follows:

Extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol. Such tests are a commonplace in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain.

Id. at 771, 86 S.Ct. at 1836 (citation omitted).

In People v. Sutherland, 683 P.2d 1192 (Colo.1984), we adopted the four-part test set forth in Schmerber, which governs the taking of an involuntary blood sample from a putative defendant who is suspected of an alcohol-related driving offense. These requirements are: (1) probable cause for arrest of the defendant for an alcohol-related driving offense, (2) a clear indication that the blood sample will provide evidence of the defendant’s level of intoxication, (3) exigent circumstances which make it impractical to obtain a search warrant, and (4) that the test be reasonable and be conducted in a reasonable manner. Id. at 1194.

In my view, the facts set forth in the record satisfy the four-pronged test of Schmerber. First, as we concluded in Sutherland, 683 P.2d at 1196, “an arrest is not a precondition to obtaining a blood sample from a person suspected of committing an alcohol-related offense.” I therefore proceed to the second requirement. The facts before Officer Williams upon which he based his probable cause determination were: (1) a single-car accident had occurred in the city of Wray, Colorado (Yuma County), and as a result, both Reynolds and his passenger were severely injured; (2) the car carrying both Reynolds and his passenger hit the guardrail and caught fire; (3) Reynolds admitted to the Officer that he had imbibed approximately three alcoholic beverages several hours before the accident; and (4) Officer Williams had investigated approximately nine to twelve DUI cases and it was his experience that persons suspected of driving under the influence tend to minimize the amount of alcohol they have consumed and exaggerate the amount of time that has transpired since they consumed it.

In my view, these facts establish a clear indication that a blood sample would provide evidence of the defendant’s level of intoxication. Further, it is known that alcohol in the blood after drinking

begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. 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. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest.

Schmerber, 384 U.S. at 770-71, 86 S.Ct. at 1835-36.

These considerations apply to the facts presented here. In the instant case, where time had to be taken to transport Reynolds to a hospital and to investigate the scene of the accident, the dissipation of alcohol in the blood created an exigent circumstance. The exigent circumstance existing here made it impractical to obtain a search warrant, and the third part of the Sutherland test is therefore met.

Finally, as in Schmerber, the extraction of blood for a blood-alcohol test was reasonable because it “is a highly effective means of determining the degree to which a person is under the influence of alcohol.” 384 U.S. at 771, 86 S.Ct. at 1836. Reynolds’ blood extraction was performed in a hospital, according to accepted medical practices, and therefore the fourth prong of Sutherland is' also met.

In my view, there was probable cause to administer a blood alcohol test because the officer knew that a serious accident had occurred at approximately 3:00 a.m., the defendant admitted he was the driver of the car, and the defendant admitted he had been drinking earlier that evening. Although Officer Williams did not observe any physical manifestations indicative of intoxication as Reynolds lay inactive on the emergency room table, the factual circumstances known to the officer prior to his requesting Reynolds to have blood drawn, combined with his experience and training, gave the officer probable cause to believe that Reynolds was probably under the influence of alcohol. Because I believe there was probable cause and exigent circumstances sufficient to justify obtaining a blood sample to determine if Reynolds was intoxicated at the time of the accident without Reynolds’ consent, I dissent.

I am authorized to say that Chief Justice ROVIRA joins in this dissent.

1 . § 18-3-205(l)(b)(I), 8B C.R.S. (1994 Supp.).

2 . § 42-4-1202(l)(a), 17 C.R.S. (1993).

3 . § 42-4-1202(1.5), 17 C.R.S. (1993).

4 . § 42-4-1203, 17 C.R.S. (1993).

5 .Section 18-3-205(2)(c), 8B C.R.S. (1994 Supp.), provides as follows:

(2) In any prosecution for a violation of [vehicular assault], the amount of alcohol in the defendant's blood or breath at the time of the commission of the alleged offense, or within a reasonable time thereafter, as shown by analysis of the defendant's blood or breath, shall give rise to the following presumptions:

(c) If there was at such time 0.10 or more grams of alcohol per one hundred milliliters of blood, or if there was at such time 0.10 or more grams of alcohol per two hundred ten liters of breath, it shall be presumed that the defendant was under the influence of alcohol.