v. Raider

     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                             January 7, 2021

                                 

No. 17CA1896, People v. Raider — Regulation of Vehicles and
Traffic — Alcohol and Drug Offenses — Expressed Consent for
the Taking of Blood, Breath, Urine, or Saliva

     A division of the court of appeals considers an issue of first

impression under the Expressed Consent Statute, § 42-4-1301.1,

C.R.S. 2020. Under this statute, anyone who drives a motor vehicle

in the state is deemed to have consented to take a blood or breath

test when requested by a law enforcement officer having probable

cause to believe the driver is under the influence of alcohol, drugs,

or both. The driver may refuse to take such a test, but is subject to

penalties for that refusal. Even if a driver refuses testing, however,

a law enforcement officer may require the driver to submit to a

blood test if the officer has probable cause to believe the driver has
committed criminally negligent homicide, vehicular homicide,

assault in the third degree, or vehicular assault.

     The division determines, as a matter of first impression, that if

a driver refuses testing and an officer lacks probable cause that the

driver has committed one of the four enumerated offenses, the

officer may not require the driver to submit to testing by obtaining a

search warrant. The division therefore determines that the forced

test of the defendant, pursuant to a warrant but without probable

cause that the defendant had committed one of the enumerated

offenses, was illegal. The division also determines that the

appropriate remedy for the illegal forced test is suppression of the

test results and remands for a new trial.
COLORADO COURT OF APPEALS                                          

Court of Appeals No. 17CA1896
Larimer County District Court No. 17CR1044
Honorable Gregory M. Lammons, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Charles Raider, Jr.,

Defendant-Appellant.


                       JUDGMENT REVERSED AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division II
                          Opinion by JUDGE GOMEZ
                          Román and Fox, JJ., concur

                         Announced January 7, 2021


Philip J. Weiser, Attorney General, Brian M. Lanni, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Laura E. H. Harvell, Alternate Defense Counsel, Grand Junction, Colorado, for
Defendant-Appellant
¶1    Anyone who drives a motor vehicle in Colorado is deemed to

 have consented to the provisions of the Expressed Consent Statute.

 § 42-4-1301.1(1), C.R.S. 2020. Those provisions include consent to

 take a blood or breath test when requested by a law enforcement

 officer having probable cause to believe the driver is under the

 influence of alcohol, drugs, or both. § 42-4-1301.1(2)(a)(I), (b)(I).

 If the driver refuses such testing, that refusal is admissible into

 evidence at a trial for driving under the influence (DUI) or driving

 while ability impaired (DWAI). § 42-4-1301(6)(d), C.R.S. 2020.

 A driver’s refusal will also result in revocation of his or her driver’s

 license for at least a year — and longer for successive instances of

 refusal. § 42-2-126(2)(h), (3)(c)(I), (4)(b)(I), C.R.S. 2020.

¶2    But the Expressed Consent Statute permits a law enforcement

 officer to force a driver to take a blood test, notwithstanding the

 driver’s refusal, if the officer has probable cause to believe the driver

 has committed one of four listed offenses. The statute provides that

            [n]o 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.,


                                      1
           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.

 § 42-4-1301.1(3) (emphases added). Evidence acquired through

 such a forced blood test is admissible in a prosecution for any of

 the four listed offenses or for DUI, DUI per se, DWAI, or underage

 drinking and driving. § 42-4-1301(6)(e).

¶3    This case presents an issue of first impression under these

 provisions: whether the Expressed Consent Statute provides the

 exclusive list of circumstances under which officers may obtain

 forced blood draws of DUI or DWAI suspects, or whether officers

 may obtain forced blood draws in other circumstances so long as

 they secure a warrant. Defendant, Charles Raider, Jr., contends

 that the statute permits officers to require testing of DUI or DWAI

 suspects in only four specified circumstances, and obtaining a

 warrant is not one of those circumstances. The People, conversely,

 contend that the statute provides for searches under the consent

 exception to the Fourth Amendment’s warrant requirement and,


                                   2
 thus, that the statute’s limitations do not apply when an officer has

 secured a warrant authorizing a test.

¶4    We conclude that under the plain language of the Expressed

 Consent Statute, law enforcement officers may not force a driver

 suspected of DUI or DWAI to take a blood test except in the four

 specified circumstances — that is, when the officer has probable

 cause to believe the driver has committed criminally negligent

 homicide, vehicular homicide, third degree assault, or vehicular

 assault — even if the officers obtain a warrant authorizing the test.

 We also conclude that the trial court erred by admitting evidence of

 the results of Raider’s illegal forced blood test at his trial for DUI

 and obstructing a peace officer and that the error was not harmless.

 Accordingly, we reverse the judgment of conviction and remand for

 a new trial on both charges.

                            I.    Background

¶5    Officer Jason Lang of the Fort Collins Police Department

 responded to a call one evening about an unauthorized car in a

 handicapped parking space. When he approached the car, Raider

 was sitting in the driver’s seat with the keys in the ignition and the

 engine running. Upon interacting with Raider, Officer Lang noticed


                                     3
 that his eyes were bloodshot and watery, his speech was slurred,

 and his breath smelled of alcohol. Raider produced an expired

 handicapped placard, explained that he had come to pick up a

 friend, and, when questioned, denied having consumed any alcohol

 or taken any drugs. Officer Lang asked Raider to perform some

 roadside maneuvers, but he declined.

¶6    Officer Lang advised Raider that he was under arrest for DUI.

 Both Officer Lang and a second officer to arrive at the scene, Officer

 Kenneth Koski, advised Raider about the Expressed Consent

 Statute. Raider initially didn’t provide a definitive response, but

 ultimately he refused any testing.

¶7    After learning that Raider had several prior DUI convictions,

 Officer Koski applied for a search warrant to conduct a blood draw.1

 Meanwhile, Officer Lang transported Raider to the hospital. After

 about an hour, the officers received a signed warrant authorizing

 them to draw a sample of Raider’s blood for testing and to use


 1 The form Officer Koski used in seeking a warrant contains check
 boxes that partially track the Expressed Consent Statute (indicating
 a blood sample would be material evidence in prosecuting a charge
 of vehicular assault or vehicular homicide) but that also include
 felony DUI (indicating a blood sample would be material evidence in
 prosecuting a DUI offense with three or more prior convictions).

                                      4
 reasonable and necessary force to obtain it. Because Raider

 refused to cooperate with the blood draw, hospital personnel put

 him in four-point leather restraints and several officers held him

 down while a technician drew his blood. Testing revealed that his

 blood had an alcohol content of .188 and contained the active

 components of marijuana.

¶8    The prosecution charged Raider with felony DUI (three or more

 prior convictions) and obstructing a peace officer. Before trial,

 Raider sought to suppress evidence from the forced blood draw.

 The trial court denied the request, concluding that the Expressed

 Consent Statute doesn’t apply where, as here, a blood draw is

 authorized by a warrant. After a trial at which the prosecution

 presented evidence of Raider’s blood test results and refusal to

 cooperate with the blood draw, the jury found Raider guilty of both

 charges. The court found Raider had five prior DUI convictions,

 making his conviction a felony, and sentenced him accordingly.2




 2Raider doesn’t challenge the trial court’s resolution of the issue of
 his prior convictions. See Linnebur v. People, 

. At any
 rate, our disposition of his appeal renders that issue moot.

                                   5
                               II.   Analysis

¶9     We first consider Raider’s argument that the forced blood draw

  violated the Expressed Consent Statute. Because we conclude that

  it did, we also consider what is the appropriate remedy for the

  violation (we conclude that the test results must be suppressed)

  and whether the erroneous admission of the test results requires

  reversal of Raider’s convictions (we conclude that it does).

                         A.    Standard of Review

¶ 10   Our review of the trial court’s ruling on suppression issues

  presents a mixed question of law and fact. People v. Simpson, 

. We defer to the trial court’s findings of fact if they are

  supported by the record, but we assess the legal effect of those facts

  de novo. 

 We also review de novo the trial court’s interpretation

  of the Expressed Consent Statute. See People v. Smith, 

 (Colo. 2011).

¶ 11   We consider whether preserved nonconstitutional errors

  require reversal under the harmless error standard. Hagos v.

  People, 

; see also Crim. P. 52(a). Under this

  standard, we reverse only if an error affects the parties’ substantial

  rights — that is, if it “substantially influenced the verdict or affected


                                      6
  the fairness of the trial proceedings.” Hagos, ¶ 12 (quoting Tevlin v.

  People, 

 (Colo. 1986)).

                  B.    The Expressed Consent Statute

¶ 12   We first consider whether the Expressed Consent Statute

  provides the exclusive list of circumstances under which officers

  may obtain forced blood draws of DUI or DWAI suspects, or whether

  officers may obtain forced blood draws in other circumstances so

  long as they secure a warrant.

¶ 13   In construing a statute, our primary purpose is to ascertain

  and give effect to the General Assembly’s intent. McCoy v. People,

  

. To do so, we focus primarily on the language of

  the statute, recognizing that “‘a court should always turn first’ to

  the plain meaning rule ‘before all other[ ]’ rules because ‘courts

  must presume that a legislature says in a statute what it means

  and means in a statute what it says there.’” Cowen v. People, 

 (quoting Conn. Nat’l Bank v. Germain, 

 (1992)). Thus, we give statutory words and phrases their

  plain and ordinary meanings, read those words and phrases in

  context, and construe them according to the rules of grammar and

  common usage. McCoy, ¶ 37. We also endeavor to effectuate the


                                     7
  purpose of the legislative scheme, reading that scheme as a whole,

  giving consistent effect to all of its parts, and avoiding constructions

  that would render any words or phrases superfluous or lead to

  illogical or absurd results. Id. at ¶ 38.

¶ 14   If the statutory language is unambiguous, we effectuate its

  plain meaning and look no further. Carrera v. People, 

. But if the language is ambiguous, in that it is susceptible of

  multiple reasonable interpretations, we may consider other tools of

  statutory construction. 

¶ 15   The parties agree that the Expressed Consent Statute does not

  refer to warrants. But “[a] statute’s silence on an issue does not

  necessarily mean that the statute is ambiguous.” Hansen v.

  Barron’s Oilfield Serv., Inc., 

; see also In re

  2000-2001 Dist. Grand Jury, 

 (Colo. 2004)

  (statutory silence on an issue didn’t create an ambiguity). In fact, it

  may be prudent to refrain from finding ambiguity in silence, as

  “a statute’s silence on a particular issue easily could be used to

  manufacture ambiguity where none exists in practically any case

  involving statutory construction.” Robbins v. People, 

 (Colo. 2005) (Rice, J., dissenting).


                                     8
¶ 16   Applying these principles, we conclude that the Expressed

  Consent Statute unambiguously prohibits forced testing of DUI or

  DWAI suspects in any circumstances other than those listed in the

  statute. This means that, even if officers obtain a warrant, if they

  lack probable cause to believe a driver suspected of DUI or DWAI

  has committed one of the four listed offenses (criminally negligent

  homicide, vehicular homicide, third degree assault, or vehicular

  assault), they cannot force a blood draw.

¶ 17   The plain language of the statute — which provides that “[n]o

  law enforcement officer shall physically restrain any person” for the

  purpose of obtaining a specimen for testing “except” in four specific

  circumstances — supports this interpretation. § 42-4-1301.1(3).

  This language is clear and unequivocal. The use of the term

  “except” followed by four specific exceptions indicates that the only

  circumstances in which officers may force testing of DUI or DWAI

  suspects are those listed in the statute. See Cain v. People, 

 (interpreting “the General Assembly’s inclusion of a

  single, specific, narrow exception to mean that the General

  Assembly intended that there be no other exceptions to the rule”

  generally set forth); Riley v. People, 

 (Colo. 2004)


                                    9
  (“The presence of one exception is generally construed as excluding

  other exceptions.”).

¶ 18   If the General Assembly had intended to also except searches

  conducted pursuant to a warrant, it could have expressly said so.

  Indeed, in another statute, the General Assembly did just that: in a

  statute governing the blood testing of assault suspects to check for

  communicable diseases, one subsection allows law enforcement

  officers to ask a suspect to voluntarily consent to testing, while

  another allows officers to seek a warrant requiring testing under

  certain circumstances if the suspect refuses to consent to it.

  § 16-3-303.8(2), (3)(a), C.R.S. 2020.

¶ 19   Additionally, several other states have included provisions in

  their expressed or implied consent statutes explicitly excepting or

  authorizing searches conducted pursuant to a warrant. See, e.g.,

  

(D)(1) (2020) (“If a person . . . refuses

  to submit to the test designated by the law enforcement agency . . .

  [t]he test shall not be given, except as provided [by statute] or

  pursuant to a search warrant.”); 

(4) (West 2020) (“Nothing in [the statute] precludes a

  law enforcement officer from obtaining a person’s blood to test for


                                     10
  alcohol, marijuana, or any drug, pursuant to a search

  warrant . . . .”); 

(d) (West 2020) (“If a

  person under arrest refuses upon the request of a peace officer to

  submit to a chemical test . . . , none shall be given except in cases

  where serious bodily injury or death has resulted or upon issuance

  of a search warrant.”).

¶ 20   Had the General Assembly intended a similar result here, it

  could have included similar language. But it did not. This suggests

  that warrants do not provide an additional exception under the

  Expressed Consent Statute. See, e.g., State v. Hitchens, 

 (Iowa 1980) (concluding that a warrant couldn’t be

  used to circumvent Iowa’s implied consent statute as the legislature

  hadn’t included any “qualifying language” to that effect); State v.

  Beyor, 

 (Vt. 1993) (applying similar reasoning to

  reach the same conclusion under Vermont’s implied consent

  statute).

¶ 21   By allowing forced testing where there is probable cause to

  believe a driver suspected of DUI or DWAI has committed criminally

  negligent homicide, vehicular homicide, third degree assault, or

  vehicular assault, but not in any other circumstances, the


                                    11
  Expressed Consent Statute reflects a legislative balance between

  competing concerns.

¶ 22   On the one hand, Colorado’s Expressed Consent Statute, in

  conjunction with the license revocation provisions, “protect[s] the

  general public from drunk drivers.” Eggleston v. Dep’t of Revenue,

  

 (Colo. App. 1995); see also Turbyne v. People,

  

 (Colo. 2007) (one objective of the Expressed

  Consent Statute is to “obtain scientific evidence of the amount of

  alcohol in the bloodstream in order to curb drunk driving through

  prosecution for that offense” (quoting Zahtila v. Motor Vehicle Div.,

  

, 

 (1977))); § 42-2-126(1)(a)

  (one purpose of the revocation provisions is to “provide safety for all

  persons using the highways of this state by quickly revoking the

  driver’s license of . . . any person who has refused to submit to an

  analysis as required by section 42-4-1301.1”).

¶ 23   But, on the other hand, “[b]lood draws are ‘significant bodily

  intrusions,’” as they “require piercing the skin,” “extract a part of

  the subject’s body,” 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 [blood alcohol


                                     12
  concentration] reading.” Birchfield v. North Dakota, 

,

  ___, 

 (2016) (citations omitted).

¶ 24   Limiting the forced testing of DUI and DWAI suspects also

  minimizes potentially violent confrontations between law

  enforcement officers and drivers who are unwilling to submit to a

  test. See, e.g., Hitchens, 

 (allowing DUI suspects

  to refuse testing “avoid[s] physical confrontations between the police

  and motor vehicle drivers”); State v. DiStefano, 

  (R.I. 2000) (testing DUI suspects only with their consent “prevent[s]

  a violent confrontation between an arresting officer and a suspect

  unwilling to submit to a test”) (citation omitted); see also Combs v.

  Commonwealth, 

 (Ky. 1998) (“In a DUI

  situation, the suspect may be highly intoxicated[,] which increases

  the risk of physical confrontation with police . . . .”).

¶ 25   Several states’ implied consent statutes strike this balance like

  Colorado’s statute does — by allowing forced tests in limited

  circumstances but otherwise relying on the threat of penalties to

  persuade drivers to cooperate with testing. See, e.g., Birchfield, 579

  U.S. at ___, 

 (noting that “it is possible to extract

  a blood sample from a subject who forcibly resists” but that “many


                                      13
  States reasonably prefer not to take this step,” and citing as an

  example North Dakota, which “generally opposes this practice

  because of the risk of dangerous altercations between police officers

  and arrestees in rural areas where the arresting officer may not

  have backup” and thus allows forced testing only where an accident

  results in death or serious injury) (citations omitted); Hitchens, 

 (explaining that Iowa’s statute “recognizes a driver’s

  ‘right’ to refuse testing” but “extracts a penalty for exercising the

  right,” in an effort to “motivate[] drivers to take the test . . . without

  resorting to physical compulsion”).

¶ 26   In fact, several of those states whose implied consent laws

  expressly address warrants limit warrant-based testing to specific,

  enumerated circumstances. See, e.g., Iowa Code Ann. § 321J.10(1)

  (West 2020) (only if a traffic accident has resulted in death or

  personal injury reasonably likely to cause death); Ky. Rev. Stat.

  Ann. § 189A.105(2)(b) (West 2020) (only if a person is killed or

  suffers physical injury as a result of the incident); 

(A) (West 2020) (only with probable cause to believe the

  driver caused death or great bodily injury to another or committed a

  felony while under the influence of alcohol or drugs); R.I. Gen. Laws


                                      14
  Ann. § 31-27-2.9(a) (West 2020) (only with probable cause to believe

  the driver committed one of four listed offenses); 

(d)(6)(B), (f) (West 2020) (only if an accident results in

  death or serious bodily injury to another).

¶ 27   Ultimately, the weighing of competing interests is a task for

  the General Assembly, not for the courts. See Burnett v. State Dep’t

  of Nat. Res., 

 (“The balance between . . . two

  competing interests ‘is for the legislature alone to reach.’” (quoting

  Medina v. State, 

 (Colo. 2001))). Here, the General

  Assembly has balanced the interests by providing for temporary

  revocation of the license of a driver who refuses testing; by allowing

  evidence of the refusal to be admitted at a trial for DUI or DWAI;

  and by authorizing officers to compel blood testing, regardless of a

  driver’s refusal, if the officer has probable cause to believe the driver

  has committed criminally negligent homicide, vehicular homicide,

  third degree assault, or vehicular assault. § 42-2-126(2)(h), (3)(c)(I);

  § 42-4-1301(6)(d); § 42-4-1301.1(3). We cannot upset that balance

  by adding additional exceptions not provided in the statute. See

  Miller v. City & Cnty. of Denver, 

 (“When a statute

  announces a general rule and makes no exception to that rule, a


                                     15
  court is ordinarily not authorized to create an exception or add a

  qualifying provision not intended by the lawmakers.” (quoting 1A

  Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory

  Construction § 20:22 (7th ed. 2007))).

¶ 28   We therefore reject the People’s argument that the

  interpretation we are adopting treats suspected drunk drivers better

  than other suspected offenders, who may be subject to search

  warrants authorizing blood draws. The General Assembly has

  decided that, in the case of someone who is suspected of driving

  under the influence of alcohol or drugs but is not suspected of one

  of the four listed offenses, the driver may be motivated to cooperate

  with testing by threatened punishments but may not be forced to

  undergo such testing. See Hitchens, 

 (rejecting a

  similar argument where “the statute does not simply expand the

  rights of an allegedly drunken driver, it also extracts a price from

  the driver for recognizing the power to refuse testing”).

¶ 29   We also reject the People’s argument that the Expressed

  Consent Statute provides for searches under the consent exception

  to the Fourth Amendment’s warrant requirement and thus has no

  application where a warrant is issued. As explained previously, the


                                    16
  statutory language is unequivocal and makes no reference to or

  exception for warrants. And while the statute assumes that drivers

  impliedly consent to its provisions by driving in the state, it also

  assumes that drivers may revoke their consent. See Simpson, ¶ 21

  n.1 (recognizing that drivers may “revoke[]” their consent to testing);

  People v. Hyde, 

, ¶ 24 n.3 (same). For that revocation of

  consent — and the punishments that go with it — to mean

  anything, officers cannot override it by obtaining a warrant.

¶ 30   It is also not entirely accurate to view the Expressed Consent

  Statute as falling within an exception to the warrant requirement.

  Although the statute is based in part on a notion of implied

  consent, it still doesn’t abrogate constitutional requirements. Thus,

  for instance, if drivers revoke their implied consent to testing,

  warrants still may be required. See Missouri v. McNeely, 

 (2013) (“[W]hile the natural dissipation of alcohol in the

  blood may support a finding of exigency in a specific case, . . . it

  does not do so categorically. Whether a warrantless blood test of a

  drunk-driving suspect is reasonable must be determined case by

  case based on the totality of the circumstances.”); People v.

  Schaufele, 

 (plurality opinion) (recognizing


                                     17
  that even where the Expressed Consent Statute authorizes forced

  blood draws on drivers who revoke their consent, a warrant may be

  required absent exigent circumstances).

¶ 31   Therefore, we conclude that law enforcement officers cannot

  use a warrant to circumvent the Expressed Consent Statute, which

  limits the circumstances in which DUI or DWAI suspects may be

  forced to undergo blood testing. And because the officers in this

  case had no probable cause to believe Raider had committed one of

  the four offenses listed in the statute, their forced blood draw,

  though conducted pursuant to a warrant, violated the statute.

           C.    Remedy for Noncompliance with the Statute

¶ 32   We next consider the appropriate remedy for the statutory

  violation. Raider seeks dismissal of the criminal charges but argues

  in the alternative for suppression of the illegally obtained evidence.

  The People, however, contend that suppression is not an available

  remedy in the absence of a constitutional violation and that

  dismissal is not appropriate under the circumstances of this case.

¶ 33   Trial courts ordinarily have discretion to fashion appropriate

  remedies for violations of the Expressed Consent Statute. People v.

  Null, 

 (Colo. 2010); Turbyne, 

.


                                    18
  But where the trial court doesn’t decide the issue of remedy, or

  where an appellate court concludes that the trial court abused its

  discretion in its choice of remedy, the appellate court can decide the

  issue. See Turbyne, 

; Riley, 

.

¶ 34   Here, the trial court didn’t consider the appropriate remedy

  since it found no statutory violation had occurred. Considering the

  relevant facts, which are not in dispute, we conclude that

  suppression of the illegally obtained test results is warranted but

  dismissal of the charges is not.

¶ 35   It is true, as the People point out, that our supreme court has

  recognized that “[s]uppression of evidence is generally reserved to

  remedy violations of constitutional rights, and is not used to remedy

  statutory violations.” People v. Clayton, 

 (Colo.

  2009). Nonetheless, in the context of the Expressed Consent

  Statute, the supreme court has held that “suppression of evidence

  may be appropriate” as a sanction “to remedy improper police

  conduct.” Turbyne, 

. It also has upheld the

  suppression of evidence due to violation of the statute, even where

  there was no alleged constitutional violation. See Null, 

 (affirming suppression of a driver’s refusal to take a


                                     19
  particular test where the officer failed to provide the driver with the

  type of test he chose, as required by the statute); Turbyne, 

 (ordering suppression of test results where an officer coerced

  a driver to consent to a breath test when the blood test the driver

  had selected was unavailable); see also People v. Maclaren, 

 (Colo. App. 2010) (“[T]rial courts . . . have broad discretion

  to suppress evidence as a sanction for improper police conduct in

  implementing the express or implied consent statute.”), overruled on

  other grounds by Smith, 

.

¶ 36   More generally, the supreme court has warned that “law

  enforcement may not violate a defendant’s statutory rights with

  impunity.” Null, 

. Here, if violation of the statute’s

  prohibition on forced tests is to have any consequence, the results

  of an illegal forced test must be excluded from evidence. Indeed,

  the statute provides for admission into evidence of results from

  forced testing conducted pursuant to the four listed exceptions,

  § 42-4-1301(6)(e), suggesting that results from forced testing are

  inadmissible in other circumstances.

¶ 37   The two cases on which the People primarily rely are

  distinguishable. In Clayton, the supreme court held that any


                                    20
  potential violation of a suspect’s statutory right to call a family

  member at the earliest possible time after his arrest did not require

  suppression of the suspect’s statements, as it did not undermine

  his voluntary waiver of his Miranda rights. 

.

  And in People v. Shinaut, the supreme court held that suppression

  was not warranted where an officer permitted a driver to change his

  mind (which the Expressed Consent Statute does not permit) and

  take a blood test after initially requesting a breath test. 

 (Colo. 1997). The court reasoned that, although there

  was a technical violation of the statute, the driver “was not deprived

  of any right that would justify rendering the blood test results

  inadmissible.” 

.

¶ 38   Here, by contrast, we have concluded that the statute afforded

  Raider the right to refuse a test, which would carry the penalties of

  temporary loss of his driver’s license and admission of his refusal at

  trial, but which could not be overridden by a warrant. The forced

  blood draw — conducted while Raider was locked in four-point

  leather restraints and held down by officers — violated that right.

  Suppression of evidence from the test is therefore warranted.




                                     21
¶ 39   But while suppression is an appropriate remedy in this case,

  dismissal of the charges against Raider is not. The supreme court

  has recognized dismissal of charges as another potential sanction

  for violation of the Expressed Consent Statute. But the court has

  expressed that this remedy may be appropriate “to prevent manifest

  unfairness in governmental procedures relating to the acquisition

  and preservation of evidence potentially favorable to an accused.”

  Turbyne, 

 (quoting People v. Gillett, 

 (Colo. 1981)). In accordance with that purpose, the court has

  approved this remedy only in circumstances where the statutory

  violation resulted in a failure to obtain evidence that may have been

  favorable to the driver. See Null, 

 (officer failed

  to provide the driver with the type of test he chose); Riley, 

 (same); Gillett, 

 (same). It makes sense to

  dismiss criminal charges where officers’ actions deprive a defendant

  of potentially exculpatory evidence. But no such circumstances

  exist in this case.

¶ 40   Accordingly, we conclude that suppression of evidence from

  the illegally obtained test is warranted, but dismissal of the charges

  against Raider is not. Thus, the trial court should have excluded


                                    22
  evidence concerning the illegal test at trial. We also conclude that

  admission of the evidence substantially influenced the verdict or

  affected the fairness of the proceedings as to both counts. See

  Hagos, ¶ 12. The prosecution relied heavily on the test results to

  establish the DUI charge, and it relied heavily on Raider’s resistance

  to the forced blood draw to establish the obstructing a peace officer

  charge. It is unclear (and the parties have not addressed) what

  impact the illegality of the forced blood draw may have on the

  obstruction charge, given that “[i]t is not a defense to a prosecution

  under this [statute] that the peace officer was acting in an illegal

  manner, if he or she was acting under color of his or her official

  authority.” § 18-8-104(2), C.R.S. 2020. But, at a minimum, we

  conclude that the admission of the inculpatory test results

  substantially influenced the jury’s verdict on this charge.

  Therefore, both convictions must be reversed.

                             III.   Conclusion

¶ 41   The judgment of conviction is reversed, and the case is

  remanded for a new trial on both charges.

       JUDGE ROMÁN and JUDGE FOX concur.




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