People v. Duemig, 79SA150

• Decision Date: 24 November 1980
• Docket Number: No. 79SA150,79SA150
• Citation: 620 P.2d 240
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Frederick William DUEMIG, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 240

620 P.2d 240

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Frederick William DUEMIG, Defendant-Appellant.

No. 79SA150.

Supreme Court of Colorado.

Nov. 24, 1980.

Rehearing Denied Jan. 5, 1981.

Stuart A. Van Meveren, Dist. Atty., Eighth Judicial Dist., Donald E. Johnson, Jr., Chief Deputy Dist. Atty., Fort Collins, for plaintiff-appellee.

Joseph P. Jenkins, P. C., Estes Park, for defendant-appellant.

DUBOFSKY, Justice.

Frederick W. Duemig appeals his jury conviction for vehicular homicide ¹ because the trial court allowed into evidence the results of a blood alcohol test performed on a sample of his blood obtained while he was in the Estes Park Hospital emergency room for treatment of injuries suffered in an automobile accident. The defendant had moved to suppress the results of the blood test, alleging that his blood sample was taken under circumstances which violated the Fourth, Fifth and Fourteenth Amendments to the United States Constitution. We affirm the defendant's conviction.

About 9:00 p. m. on June 26, 1977, the defendant was driving on Mary's Lake Road, south of Estes Park, when his 1960 Willys Jeep went off the right-hand side of the road and rolled down a short, steep embankment. The defendant was found near the jeep and taken to the hospital emergency room. As the jeep overturned, it crushed his three-year-old daughter, and she died at the scene of the accident.

Hospital personnel treated the defendant for scalp lacerations and a concussion. The defendant's behavior in the emergency room was erratic: he had difficulty lying still, and he was dazed, confused, and highly emotional after learning of his daughter's death. After the defendant's head injuries were treated, he left the emergency room, ostensibly to go to the X-ray room. Instead, he attempted to leave the hospital, and three law enforcement officers restrained him. A scuffle ensued. The police cuffed the defendant's hands behind his back and returned him to the emergency room.

The police seated the defendant on one of the treating tables and removed a handcuff from one arm to enable the medical technician to take a blood sample. The medical technician testified that the defendant did not want an injection, but when she explained that she was taking a blood sample, he stopped fighting, relaxed, and cooperated. The blood sample analysis determined that the defendant's blood contained 0.221 percent ethyl alcohol at the time the sample was withdrawn.

The defendant was charged by information with vehicular homicide under section 18-3-106, C.R.S. 1973 (now in 1978 Repl.Vol. 8), which provides:

"(1)(b) If a person operates or drives a motor vehicle, while under the influence of any drug or intoxicant, and such conduct is the proximate cause of the death of another, he commits vehicular homicide....

"(2) In any prosecution for a violation of subsection (1) of this section, the amount of alcohol in the defendant's blood at the time of the commission of the alleged offense, or within a reasonable time thereafter, as shown by chemical analysis of the defendant's blood, urine, or breath, shall give rise to the following presumptions: ... (c) if there was at such time 0.10 percent or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence of alcohol."

At trial, the defendant maintained that his daughter's death was proximately caused by a defect in the jeep's steering. The defendant produced expert testimony and testimony from the prior owner of the jeep that the vehicle had a faulty steering mechanism which frequently caused the steering to catch, pulling the vehicle in one direction or the other. Although the defendant could not recall the accident or his treatment in the emergency room, he testified that he remembered his vehicle veering to the right.

On appeal, the defendant contends that the trial court improperly denied his motion to suppress the results of the blood test and his request for an instruction that the statutory presumption based on blood alcohol content could be overcome by other evidence that he was not under the influence of intoxicating liquor; that the vehicular homicide statute is unconstitutional because it does not include guidelines for the taking of a blood sample; and that the jury verdict was not supported by the evidence. We disagree.

Both at the hearing on his motion to suppress the results of the blood test and at trial, the defendant charged that his blood specimen was drawn forcibly and without his permission after he had suffered a head injury, while he was in a state of shock, and under circumstances which violated his constitutional privileges against self-incrimination, unreasonable search and seizure, and due process of law. The trial court ruled that the blood sample was taken in a hospital environment by a procedure which was reasonable and medically acceptable and denied the defendant's suppression motions. The record supports the court's ruling.

Because blood tests are not testimony of the defendant, the non-consensual withdrawal of a blood sample does not violate the defendant's Fifth Amendment protection against self-incrimination or Colo.Const. art. II, sec. 18. Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971). Nor does collection of a blood sample constitute an unreasonable search and seizure under the Fourth Amendment to the United States Constitution or Colo.Const. art. II, sec. 7. Schmerber v. California, supra; People v. Brown, supra.

The defendant acknowledges that a blood sample may be taken without his consent, but he argues that the circumstances of the taking here were violent and shocked the conscience within the meaning of Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). ² The record of the venipuncture performed in this case does not disclose that the means used were so patently offensive as to shock the conscience. Although the defendant's conduct was periodically irrational, and the police officers used force to restrain the defendant and keep him in custody, the blood was not drawn forcibly, and the defendant appeared to understand and cooperate in the blood test.

The defendant's motion to suppress the results of the blood test was based upon the conditions surrounding collection of the blood sample. At the end of the suppression hearing, although the question of probable cause had not been raised by the defendant, the trial court found that there was probable cause to arrest the defendant and to compel the withdrawal of a blood sample. Not until his reply brief was filed in this appeal did the defendant argue that his blood sample was taken in violation of the standard requiring a "clear indication" that a blood test will disclose relevant evidence. People v. Williams, 192 Colo. 249, 557 P.2d 399 (1976).

At the preliminary hearing, the chief investigating officer for the Highway Patrol testified that he ordered a blood sample because "it was believed that (the defendant) had been drinking and because of the seriousness of the accident." The defendant's motion to suppress focused on the circumstances existing in the emergency room when the blood sample was obtained, and all of the testimony at the hearing on the motion concerned what happened in the emergency room.

At trial, the defendant renewed his objection to the admission of the results of the blood test. A registered nurse who examined the defendant at the scene of the accident, a Larimer County...