Supreme Court suppresses DUI test result, shows how to revise law
DENVER The Colorado Supreme Court on Tuesday threw out breath-test evidence against a man arrested for suspected drunken driving after authorities were unable to comply with his request for a blood test.The justices said state law doesn’t adequately cover cases where one type of test is unavailable.The court, in a 4-3 ruling, also gave guidance to lawmakers on how to change the law to allow police to require suspects to submit to an alternative form of alcohol testing when the type of test the suspect requests under the state’s express consent law is unavailable.Glenn Turbyne was arrested April 29, 2005, in Aurora for suspected drunken driving. Under the state’s express-consent law, he asked to be given a blood test rather than a breath test to determine his blood-alcohol level.Because of bad weather and a heavy workload for paramedics, no qualified people were available to draw blood within the two hours specified by law, according to trial-court testimony.The ruling said when Turbyne refused to take a breath test, a deputy told him his license could be revoked for a year. He then submitted to a breath test, which showed his blood-alcohol level was more than twice the legal limit of 0.08 percent, the ruling said.An Arapahoe County judge dismissed the DUI charge, saying inclement weather was not a valid excuse for failing to comply with Turbyne’s request for a blood test. A district court judge later reinstated the charge, and Turbyne appealed.The Supreme Court upheld the reinstatement of the charge but said the results of the breath test had to be thrown out because the deputy had inappropriately threatened Turbyne with loss of his license. The ruling gave prosecutors the possibility of refiling charges based on other evidence.District Attorney Carol Chambers said she had not yet made that decision but said the case could help police in the future.”It helps clarify things for the police officers who don’t always know what to do in a situation like this,” she said.Turbyne’s attorney, Shawn Gillum, said he would ask the Supreme Court to reconsider.He said prosecutors can obtain drunken driving convictions even without blood- or breath-test results.Gillum said the ruling could make it too easy for police to ignore a motorist’s request for one type of test.”There are hardly any facts in the record to show the weather was so severe as to preclude the officer from complying with my client’s right to a blood test,” Gillum said. “If they (police) can just testify the roads were icy and the weather cold and drizzly, if that’s enough, that’s not a real high burden to meet.”Justice Alex Martinez, who was joined in his dissent by justices Mary Mullarkey and Michael Bender, said the “drizzly, cold and icy” conditions the deputy described during court testimony did not provide a valid excuse for failing to administer a blood test.The court’s majority said Turbyne did nothing that could justify revoking his driver’s license, and that the deputy coerced his cooperation by misstating the express consent law.State Senate Judiciary Committee Vice-chairman John Morse, D-Colorado Springs, said the law may need to be changed to ensure police have the ability to keep suspected drunk drivers off the road. Officers have to make sure drivers understand they will lose driving privileges for refusing to take a blood or breath test, but the warning must not be coercive, he said.”This issue is so critical because drunk driving creates innocent victims almost always,” said Morse, a former Fountain police chief.
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