People v. Sanchez, 24866
| Decision Date | 23 November 1970 |
| Docket Number | No. 24866,24866 |
| Citation | 173 Colo. 188,476 P.2d 980 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Jimmy Billy SANCHEZ, Defendant-Appellee. |
| Court | Colorado Supreme Court |
James D. McKevitt, Dist. Atty., Gregory A. Mueller, Asst. Dist. Atty., Jarvis W. Seccombe, Chief Deputy Dist. Atty., Thomas P. Casey, Deputy Dist. Atty., Denver, for plaintiff-appellant.
No appearance for defendant-appellee.
This is an interlocutory appeal from an order of the Denver District Court granting defendant-appellee's pretrial motion to suppress evidence.
Defendant was charged with the felony of causing an injury while driving under the influence of intoxicating liquor contrary to the provisions of C.R.S.1963, 40--2--11. In connection with the investigation of the case, while the defendant was in custody of the police, he was advised of his rights under the Colorado implied consent law, 1967 Perm.Supp., C.R.S.1963, 13--5--30(3)(a), (b), (c). A written advisement form entitled 'Advisement Pursuant to Implied Consent Law of the State of Colorado' was read to him and he acknowledged receiving a copy of the advisement. Thereupon, defendant consented in writing to undergo a breathalyzer test to determine the ethyl alcohol content of his breath. The result of the test showed the alcoholic content of his breath to be equivalent to a blood alcohol content of .25% By weight thus raising a presumption that defendant was under the influence of intoxicating liquor. C.R.S.1963, 13--5--30(2)(d).
Defendant's motion to suppress alleged as grounds that his constitutional rights were prejudiced because he was led to believe, both orally and in writing, that he was arrested and held under a charge of driving under the influence of intoxicating liquor, a misdemeanor, whereas he was not advised that he would be charged with causing an injury while driving under the influence of intoxicating liquor, a felony. The trial court sustained defendant's motion, concluding that the advisement concerning the breathalyzer test administered to defendant was not a full warning or advisement and therefore defendant's consent was not based upon an intelligent waiver of his Fourth Amendment rights to be free of an unlawful search of or intrusion upon his person. We disagree with the trial court's resolution of this problem and therefore reverse.
In the hearing of the motion to suppress, no evidence was taken and the factual matters were resolved by stipulation. It was agreed the defendant was under arrest; that he consented to the breathalyzer test; that his consent was a limited consent pursuant to the implied consent statute; and that but for the limited consent no breathalyzer test would have been given defendant. The exhibits indicate that the defendant was given the advisement at 12:45 a.m. on the morning of December 22, 1969, and the written consent to the test indicates that defendant gave consent and the breathalyzer test was administered at 1 a.m. of the same morning.
We hold that the determination of this case is controlled by Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908. Schmerber concerned the taking of a blood sample without consent. In Schmerber the defendant, who was charged with driving under the influence of intoxicating liquor, was arrested as a result of an automobile accident. While at a hospital receiving treatment for his injuries, over his objection a sample of blood was tkaen for chemical analysis to determine its alcoholic content. It was contended, among other things, that the Fourth Amendment protection against unreasonable searches of his person rendered the results of the blood alcohol test incompetent. The United States Supreme Court held otherwise. It was recognized that the taking of blood is an intrusion of the person and constitutes a search within the meaning of the Fourth Amendment. However, the Court observed:
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People v. Helm, 81
...section 42-4-1202(3)(e), C.R.S.1973 (1980 Supp.). The right to refuse is statutory and does not apply in every case. People v. Sanchez, 173 Colo. 188, 476 P.2d 980 (1970). There is certainly no constitutional basis under the Fourth Amendment to require the driver's consent to chemical testi......
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People v. Deadmond, 82SA367
...blood when the offense charged is a felony rather than the lesser offense of driving under the influence of alcohol. People v. Sanchez, 173 Colo. 188, 476 P.2d 980 (1970). See also People v. Duemig, 620 P.2d 240 (Colo.1980), cert. denied, 451 U.S. 971, 101 S.Ct. 2048, 68 L.Ed.2d 350 (1981);......
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People v. Sutherland, 82SA373
...See, e.g., People v. Myers, 198 Colo. 295, 599 P.2d 891 (1979); People v. Brown, 174 Colo. 513, 485 P.2d 500 (1971); People v. Sanchez, 173 Colo. 188, 476 P.2d 980 (1970).5 We note here that Chrysler testified to King's full participation in the chain of custody without ...
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State v. Hitchens, 63969
...without compliance with implied consent statutes are nevertheless admissible in criminal negligence actions. See, e. g., People v. Sanchez, 476 P.2d 980, 982 (Colo.1970); State v. Robarge, 35 Conn.Supp. 511, ---, 391 A.2d 184, 185 (1977); People v. Cords, 75 Mich.App. 415, 421, 254 N.W.2d 9......