People v. Fuerst

• Decision Date: 10 January 2019
• Docket Number: Court of Appeals No. 17CA0772
• Citation: 488 P.3d 454
• Court: Colorado Court of Appeals
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Kim Maurice FUERST, Defendant-Appellant.

488 P.3d 454

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Kim Maurice FUERST, Defendant-Appellant.

Court of Appeals No. 17CA0772

Colorado Court of Appeals, Division IV.

Announced January 10, 2019

Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Emilyn Winkelmeyer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE HAWTHORNE

¶ 1 Defendant, Kim Maurice Fuerst, appeals his conviction for driving while ability impaired (DWAI). We affirm.

I. Background

¶ 2 Defendant backed his car into a pickup truck. When a police officer arrived on the scene, a bystander told the officer that, after the accident, defendant had asked her if she wanted his beer because he needed to hide it.

¶ 3 Defendant agreed to perform several roadside sobriety tests. The horizontal gaze nystagmus test

indicated that he was under the influence of a central nervous system depressant (CNS depressant). Alcohol is a CNS depressant. Defendant also performed poorly on the walk-and-turn and one-leg stand tests and had difficulty following the officer's instructions. Based on defendant's performance on these tests and his previous statement to the bystander about the beer, the officer believed defendant was under the influence of alcohol.

¶ 4 The officer arrested defendant and gave him the option of taking either a breath or blood test under section 42-4-1301.1(2)(a)(I), C.R.S. 2018, a provision in Colorado's Expressed Consent Statute. Defendant chose a breath test. The breath test results showed that defendant's blood alcohol content was zero.

¶ 5 The officer then concluded that "it had to be drugs" and asked defendant to take a blood test under section 42-4-1301.1(2)(b)(I). Defendant initially refused and asked to speak to the officer's supervisor. The supervising officer told defendant that if he didn't take the blood test, his driver's license would be revoked. Defendant then agreed to take the blood test.

¶ 6 The blood test revealed 101 nanograms of Alprazolam

(Xanax ) per milliliter, which is near the upper limit of the therapeutic range for that drug (25 to 102 nanograms per milliliter). Alprazolam is also a CNS depressant.

¶ 7 Before trial, defendant moved to suppress the blood test results. After hearing evidence and argument, the trial court denied the motion.

¶ 8 At trial, the jury found defendant not guilty of driving under the influence (DUI) but found him guilty of DWAI and unsafe backing.

II. The Trial Court Didn't Err in Denying the Motion to Suppress the Blood Test Results

¶ 9 Defendant contends that the trial court erred in denying his motion because the officer's requiring him to complete the blood test—after he had already selected and completed the breath test—wasn't authorized by the Expressed Consent Statute and violated his constitutional rights. We disagree.

A. Defendant Preserved His Argument

¶ 10 In defendant's written motion to suppress, he argued only that the officer didn't have probable cause to request that he take the blood test. But, at the evidentiary hearing on the motion, during closing argument, the trial court specifically asked the prosecutor, "[T]ell me your position on the law if someone agrees to take a breath test and then can law enforcement ask them for a second test ...?" The prosecutor answered that he wasn't aware of anything in the law that would prohibit the second test. Then, during his closing, defendant argued, among other things, that the officer couldn't invoke the Expressed Consent Statute a second time after he had already selected and completed the breath test.

¶ 11 Under these circumstances, we conclude that defendant preserved his contention for appeal.

B. Standard of Review

¶ 12 Review of a trial court's suppression order presents a mixed factual and legal question. People v. Hyde , 2017 CO 24, ¶ 9, 393 P.3d 962. We defer to the trial court's factual findings that have record support, but we assess those facts' legal effect de novo. Id. And we also review de novo the court's interpretation of the Expressed Consent Statute. See Fitzgerald v. People , 2017 CO 26, ¶ 8, 394 P.3d 671.

C. Analysis

¶ 13 Defendant argues that the Expressed Consent Statute doesn't authorize an officer to request a drug test under subsection 1301.1(2)(b)(I) if the officer has already requested, and the suspect has completed, an alcohol test under subsection 1301.1(2)(a)(I). We disagree.

¶ 14 Subsection 1301.1(2)(a)(I) authorizes a breath or blood test if an officer has probable cause to believe a driver is under the influence of alcohol. Subsection 1301.1(2)(b)(I) authorizes a blood, saliva, or urine sample if an officer has probable cause to believe a driver is under the influence of drugs and requiring the test is reasonable. The statute doesn't say an officer can only do one or the other. In fact, nothing in the statutory language ties together subsections 1301.1(2)(a)(I) and (2)(b)(I), other than that the two provisions are in the same statute. And we disagree with defendant's argument that because there's no express statutory provision allowing an officer to do both, an officer can't do both. We conclude that if the General Assembly had intended to prohibit what the officer did in this case, it would have included language in the Expressed Consent Statute specifying that an officer can proceed under subsection 1301.1(2)(a)(I) or (2)(b)(I), but not both . To adopt defendant's interpretation would require us to add words to the statute, and "[w]e do not add words to the statute or subtract words from it." People v. Diaz , 2015 CO 28, ¶ 12, 347 P.3d 621 (quoting Turbyne v. People , 151 P.3d 563, 567 (Colo. 2007) ).

¶ 15 This case's facts are strikingly similar to those in Halter v. Department of Revenue , 857 P.2d 535 (Colo. App. 1993). There, the officer had probable cause to believe the plaintiff was impaired by alcohol because of, among other things, his poor performance on roadside sobriety tests. Id. at 536, 538. The officer gave the plaintiff the option of performing a breath or blood test under subsection 1301.1(2)(a)(I), and the plaintiff chose a breath test. Id. at 536. The breath test was negative for the presence of alcohol. Id. The arresting officer ultimately testified that "because the alcohol came back zero" and he still felt that the plaintiff "was impaired," he thought at that point that the plaintiff "was under drugs" because "that could be the only other answer." Id. Another officer then requested that the plaintiff provide a urine sample to test for drugs. Id. Over the next several hours, the plaintiff didn't provide a urine sample and his driver's license was revoked. Id. at 536-37.

¶ 16 Although the plaintiff in Halter didn't make the same statutory argument that defendant does in this case, the Halter division analyzed the Expressed Consent Statute and concluded that if an officer has probable cause to believe that a driver is under the influence of alcohol or drugs, the officer may request, and the driver is obligated to complete, "either the applicable alcohol tests or the applicable drug tests or both ." Id. at 538 (emphasis added). Notably, in this case, the People relied on Halter in their answer brief but defendant didn't address the case in his reply brief.

¶ 17 Instead, defendant argues that under Turbyne , 151 P.3d 563, and section 42-4-1301.1(2)(a.5)(I), the officer couldn't "change" the type of test that defendant had originally requested. We conclude that Turbyne and section 42-4-1301.1(2)(a.5)(I) don't apply here.

¶ 18 In Turbyne , the officer requested that the defendant submit to a breath or blood test under subsection 1301.1(2)(a)(I), and the defendant chose a blood test. Turbyne , 151 P.3d at 565. But, because the officer faced difficulty in getting the blood test completed, he required the defendant to submit to a breath test. Id. at 565-66. Under the version of the Expressed Consent Statute in effect at that time, the supreme court held that the officer couldn't change the type of test that defendant had selected under subsection 1301.1(2)(a)(I). See id. at 567-72. Soon after the Turbyne decision, the General Assembly amended the Expressed Consent Statute by adding section 42-4-1301.1(2)(a.5)(I), providing that an officer isn't bound by the driver's choice between a breath or blood test under subsection 1301.1(2)(a)(I) if "extraordinary circumstances" prevent completing the selected test. See People v. Null , 233 P.3d 670, 678 (Colo. 2010) (discussing the statutory amendment).

¶ 19 Unlike in Turbyne , where the defendant wasn't allowed to take the type of test he had selected under subsection 1301.1(2)(a)(I), defendant chose a breath test and the officer complied by giving him that test. After completing that procedure, the officer had probable cause to believe defendant was under the influence of drugs, and subsection 1301.1(2)(b)(I) authorized the officer to request a blood test.

¶ 20 Defendant doesn't present any independent argument that conducting the blood test violated his constitutional rights. Instead, he argues, "[T]he issue here is whether that procedure [employed by the officer] was lawful under the statute. Because it was not, the blood draw was unconstitutional and the results should have been suppressed." We conclude that the procedure employed by the officer didn't violate the Expressed Consent Statute. Because defendant's statutory claim fails, his constitutional claim necessarily fails.

III. The Trial Court Properly Admitted the Blood Test Results at Trial

¶ 21 Defendant also contends that the trial court violated his confrontation rights and section 16-3-309(5), C.R.S. 2018, by admitting a laboratory report containing his blood test results. He argues that the witness who testified about the laboratory report and the blood test results wasn't sufficiently involved in the process of testing the blood sample and...