McGuire v. People, 86SC280

• Decision Date: 08 February 1988
• Docket Number: No. 86SC280,86SC280
• Citation: 749 P.2d 960
• Parties: Timothy McGUIRE, Petitioner, v. The PEOPLE of the State of Colorado, Respondent
• Court: Colorado Supreme Court

Page 960

749 P.2d 960

Timothy McGUIRE, Petitioner, v. The PEOPLE of the State of Colorado, Respondent

No. 86SC280.

Supreme Court of Colorado En Banc.

Feb. 8, 1988.

The Office of Harry J. Holmes, Hal D. Blacker, Longmont, for petitioner.

Alexander M. Hunter, Dist. Atty., John Pickering, Deputy Dist. Atty., Boulder, for respondent.

LOHR, Justice.

As a result of a jury trial in Boulder County Court, the petitioner was convicted of driving a motor vehicle while under the influence of intoxicating liquor. See § 42-4-1202(1)(a), 17 C.R.S. (1984). He appealed, asserting as one ground for reversal that the trial court had violated his rights to due process of law by admitting evidence of his refusal to take a roadside sobriety test. The district court affirmed the conviction, and we granted certiorari. We conclude that the admission of the challenged evidence was consistent with the petitioner's rights to due process of law as guaranteed by the United States and Colorado Constitutions. We therefore affirm the judgment of the district court.

I.

On April 4, 1985, an officer of the Boulder County Sheriff's Department stopped an automobile driven by the petitioner, Timothy McGuire, for speeding and weaving. The officer formed the opinion that McGuire had been driving under the influence of intoxicating liquor, and asked him to perform certain roadside sobriety maneuvers. The officer testified:

I told him that, should he do the maneuvers, they could be used against him in court and that they were voluntary, which means he did not have to do them; and that's it.

The officer did not advise the petitioner regarding any consequences of refusal to take the roadside tests. The petitioner declined to perform the tests, whereupon the officer placed him under arrest.

McGuire was charged with driving a motor vehicle while under the influence of intoxicating liquor, § 42-4-1202(1)(a), 17 C.R.S. (1984), and was convicted of that charge after a jury trial in Boulder County Court. During the course of the trial, evidence of the petitioner's refusal to perform the roadside sobriety tests was admitted into evidence over his objection. McGuire appealed to the District Court for Boulder County, asserting as one ground for reversal that the admission into evidence of his refusal to perform the roadside sobriety maneuvers violated his rights to due process of law. The district court affirmed, and we granted certiorari to determine whether the petitioner's due process rights under the federal and state constitutions were violated by the admission of the challenged evidence. ¹

II.

The rights of a defendant to due process of law in criminal proceedings in Colorado are safeguarded by the fourteenth amendment to the United States Constitution, Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 519-20, 93 L.Ed.2d 473 (1986), and by Article II, Section 25, of the Colorado Constitution. Due process guarantees that a criminal defendant will be treated with "that fundamental fairness essential to the very concept of justice." United States v. Valenzuela-Bernal, 458 U.S. 858, 872, 102 S.Ct. 3440, 3449, 73 L.Ed.2d 1193 (1982) (quoting Lisbena v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 289, 86 L.Ed. 166 (1941)). Accord California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 2532, 81 L.Ed.2d 413 (1984). However, not every trial error or infirmity constitutes a failure of fundamental fairness. Donnelly v. DeChristoforo, 416 U.S. 637, 642, 94 S.Ct. 1868, 1871, 40 L.Ed.2d 431 (1974). "[T]he acts complained of must be of such quality as necessarily prevents a fair trial." Valenzuela-Bernal, 458 U.S. at 872, 102 S.Ct. at 3449 (quoting Lisbena, 314 U.S. at 236, 62 S.Ct. at 289).

Recently, in Cox v. People, 735 P.2d 153 (Colo.1987), we addressed the question of whether due process under the Colorado Constitution was violated in a prosecution for driving under the influence of intoxicating liquor by admitting into evidence a driver's refusal to submit to a blood or breath alcohol test. In Cox, we consolidated for review two separate district court judgments, both involving drivers stopped by law enforcement officers. In each case the officer had warned the defendant that his refusal to submit to a blood or breath test would result in the revocation of his driver's license, a consequence prescribed by statute. See § 42-4-1202(3)(d), 17 C.R.S. (1984). In neither case did the officer advise the defendant that his refusal to take the test could be used against him at trial, as also specifically provided by statute. See § 42-4-1202(3)(e), 17 C.R.S. (1984). Each defendant contended that the admission of his refusal into evidence violated his rights to due process of law under Article II, Section 25, of the Colorado Constitution. We held that the "[f]ailure to warn a driver that evidence of his refusal to take a blood or breath test may be used against him at trial coupled with the subsequent use of the evidence at trial does not violate due process under either the federal or state constitution." Cox, 735 P.2d at 157.

In Cox we relied on the reasoning of the United States Supreme Court in South Dakota v. Neville, 459 U.S. 553, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). In Neville, the arresting officers warned the defendant driver that the failure to take a blood-alcohol test could result in revocation of his license, but did not inform the defendant of the further consequence that evidence of refusal would be admissible against him at a trial on the charge of driving while intoxicated. ² The Court, however, stated that it was unrealistic to say that the warning given to the suspect implicitly assured him that no adverse consequences other than those mentioned by the officers would result if he refused to take the test. Id. at 566, 103 S.Ct. at 924. Rather, "the warning that he could lose his driver's license made it clear that refusing the test was not a 'safe harbor,' free of adverse consequences." Id. The Court accordingly held that admission into evidence of the refusal to submit to the blood-alcohol test would comport with fundamental fairness as required by due process. Id.

Unlike the defendants in Cox and Neville, the petitioner in the present case received no warning of any adverse consequences that might result from his refusal to perform the roadside maneuvers. Therefore, the reasoning of Neville, relied on in Cox, does not resolve the due process issue in the case now before us. Nothing in the officer's statement specifically informed the petitioner that refusal to perform the roadside maneuvers was not a "safe harbor."

The petitioner argues that, under the logic of Neville, the lack of any warning of adverse consequences that could result from the refusal to perform the roadside maneuvers, coupled with the admission of the refusal into evidence, violated his due process rights. We addressed a somewhat similar contention in the context of a proceeding for judicial review of a driver's license revocation in Brewer v. Motor Vehicle Div., Dep't of Revenue, 720 P.2d 564 (Colo.1986). In Brewer the plaintiff's driver's license was revoked in an administrative proceeding based upon a breath test showing a blood-alcohol content in excess of the statutory threshold for driver's license revocation. See § 42-2-122.1, 17 C.R.S. (1984). In the judicial review proceeding, he contended that he had not been sufficiently advised before the breath sample was taken because "he was not advised that he had the option to submit to a blood test or to refuse chemical testing altogether, nor was he warned of the legal consequences of such a refusal." Brewer, 720 P.2d at 568. We held that the driver had no constitutional or statutory right to refuse testing or to select a particular type of test. Id. at 568-69.

The driver in Brewer also argued that he had a due process right to be warned that his refusal of chemical testing could be used against him at trial on a charge of driving under the influence of, or while impaired by, intoxicating liquor and that such refusal could also result in the revocation of his driver's license. See § 42-4-1202(3)(e), 17 C.R.S. (1984); § 42-2-122.1(1)(a)(II), 17 C.R.S. (1984). We held, however, that due process was satisfied through the publication of sections 42-4-1202(3)(e) and 42-2-122.1(1)(a)(II), which specifically describe these adverse consequences of refusal to submit to chemical testing. Brewer, 720 P.2d at 569-70. Relying on Vigil v. Motor Vehicle Div. of Dep't of Revenue, 184 Colo. 142, 145, 519 P.2d 332, 334 (1974), we reasoned that a person licensed to operate a motor vehicle on public highways is presumed to know the law regarding the use of such highways. Brewer, 720 P.2d at 564. Under Brewer, therefore, warnings are not necessary when some other form of notice exists to alert a driver to the adverse consequences of a refusal. Brewer differs from the present case, however, because no comparable statutory provision exists governing the admissibility of a refusal to perform roadside maneuvers.

The crucial inquiry on which this case must turn is whether the fact that the officer did not advise McGuire that his refusal to perform...