Facts: Seems Mr. Smith had a few too many libations, the police and prosecution claim he then drove, crashed, and hurt two passengers in the car, one seriously. The police ordered the nurse to draw blood from Mr. Smith but never asked Mr. Smith if he consented.
Issue: Whether Colorado’s statutory scheme requires the police to seek consent prior to ordering involuntary blood draws?
Held: No.
Reasoning: The U.S. Supreme Court in Schmerber v. California, 384 U.S. 757, 772, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), held that police can involuntarily draw blood if the police have probable cause to believe the suspect drove under the influence. Colorado codified this language and limited involuntary tests to certain crimes: “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.” C.R.S. § 42-4-1301.1.
Here, Mr. Smith never consented, but the Court highlighted in its recitation of the facts that he never complained, resisted, or attempted to prevent the tests. Justice Martinez in dissent pointed out that the officer, under the clear terms of the statute, must first get a refusal prior to initiating an involuntary blood draw. Unfortunately, only Justice Marquez concurred with his dissent.
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