People v. Sutherland

• Decision Date: 04 June 1984
• Docket Number: No. 82SA373,82SA373
• Citation: 683 P.2d 1192
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Mickey Lee SUTHERLAND, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 1192

683 P.2d 1192

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v.Mickey Lee SUTHERLAND, Defendant-Appellant.

No. 82SA373.

Supreme Court of Colorado En Banc.

June 4, 1984.

Rehearings Denied June 25, 1984.

J.D. MacFarlane, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Cantrick, Sol.Gen., John M. Hutchins, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Kevin R. O'Reilly, Glenwood Springs, for defendant-appellant.

NEIGHBORS, Justice.

The defendant appeals the judgment of conviction entered against him by the District Court for Rio Blanco County after a jury found him guilty of three counts of vehicular homicide ¹ and two counts of vehicular assault.²The defendant raises three issues on appeal.He argues that the term "proximate cause" which is an element in the vehicular homicide and vehicular assault statutes renders both provisions unconstitutionally vague.The defendant further claims that blood-alcohol test results were improperly admitted into evidence for two reasons: (1) A blood sample was obtained from him at a time when he had not been placed under formal arrest; and (2)the prosecution failed to establish the chain of custody necessary to admit the test results and supporting exhibits.We reject the defendant's assignments of error and affirm his conviction.

I.

On January 7, 1981, five young men from Craig, Colorado left that city on their way to a basketball game in Meeker, Colorado.They were in an Audi automobile driven by Rex Dale.At about 7:00 p.m., when they were approximately 3.5 miles north of Meeker on Colorado Highway 13 in Rio Blanco County, the defendant, whom the jury found to be the driver of a 1974 Oldsmobile, attempted to pass a pickup truck that was pulling a trailer carrying a large water tank.At the point where the defendant began passing the slower moving truck and trailer, double yellow line markings on the road prohibited passing.The Audi and Oldsmobile cars collided head-on, the Oldsmobile being on the wrong side of the road.Three persons in the Audi were killed and two suffered serious bodily injuries.The defendant and his passenger, Albert E. Miller, also sustained injuries.A state trooper, William R. Chrysler, was called to the scene of the collision.After assisting with the dead and injured persons, Trooper Chrysler went to the Pioneer Hospital in Meeker and attempted to determine who was driving the Oldsmobile vehicle.The defendant told the trooper that he was "too drunk to drive, that he was asleep in the back seat," and that Miller was driving.Miller, on the other hand, told the officer that the defendant was the driver.The trooper smelled the odor of alcohol on the breath of both the defendant and Miller.Given these circumstances, the officer directed that blood specimens be drawn from both men, even though he had not arrested either person.Over the next several days, officers of the Colorado State Patrol conducted a further investigation which included interviewing the three eyewitnesses who were in the truck and obtaining the results of the blood-alcohol tests which showed that the defendant had a blood-alcohol level of .175 grams per hundred milliliters of blood.Based on the results of the investigation, Trooper Chrysler filed an affidavit requesting a warrant to arrest the defendant.The warrant was issued by the Rio Blanco County Judge on January 13, 1981.

Following preliminary proceedings in the county and district courts, the defendant filed motions attacking the constitutionality of the statutes under which he was charged and to suppress the results of the blood-alcohol test.The district court denied both motions.

The case proceeded to a jury trial and the defendant was found guilty.His motion for a new trial was denied and he was sentenced to four years at the Colorado Department of Corrections plus one year of parole on each count, the sentences to run concurrently.

II.

The defendant first claims that the element, "proximate cause," contained in both the vehicular homicide and vehicular assault statutes is unconstitutionally vague.While we recognized that the term "proximate cause" has been the "subject of protracted debate and a source of great confusion in the law of torts,"we upheld its constitutional validity in the face of a due process challenge to the identical statutes under the United States and Colorado Constitutions in People v. Rostad, 669 P.2d 126, 128(Colo.1983).Accordingly, Rostad is dispositive of the defendant's first argument.

III.

The defendant's second argument for reversal of his conviction is that his rights under the Fourth Amendment to the United States Constitution were violated because he was not placed under arrest before a smaple of his blood was drawn.The parties have stipulated that the defendant was not under arrest or in custody when the blood sample was obtained.In deciding this issue, we are guided by the seminal case of Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908(1966), in which the Supreme Court enumerated the criteria that must be established before a blood sample may be obtained involuntarily from a putative defendant.First, there must be probable cause for the arrest of the defendant on an alcohol-related driving offense.Second, there must be a clear indication that the blood sample will provide evidence of the defendant's level of intoxication.Third, exigent circumstances must exist which make it impractical to obtain a search warrant.Fourth, the test must be a reasonable one and must be conducted in a reasonable manner.

In this case, the defendant's principal contention centers around his claim that a defendant must be formally arrested before a blood sample may be taken.The defendant's position has been accepted by a number of courts.E.g., People v. Superior Court, 6 Cal.3d 757, 100 Cal.Rptr. 281, 493 P.2d 1145(1972);State v. Towry, 26 Conn.Super. 35, 210 A.2d 455(1965);Shores v. State, 233 So.2d 434(Fla.App.1970);State v. Davis, 108 N.H. 45, 226 A.2d 873(1967);People v. Young, 42 Misc.2d 540, 248 N.Y.S.2d 287(Westchester County Ct.1964);Commonwealth v. Murray, 441 Pa. 22, 271 A.2d 500(1970).However, we decline to follow the holdings of those courts which support the defendant's argument.In our view, the constitutional prohibitions against unreasonable searches and seizures require only that there be probable cause to place the defendant under arrest before the blood sample is taken.SeePeople v. Smith, 175 Colo. 212, 486 P.2d 8(1971).The formal arrest of a defendant is not a prerequisite to the obtaining of a blood sample.In his treatise on search and seizure, Professor LaFave states:

[T]he better view is to the contrary, namely that a "warrantless search is proper if the officer had probable cause to believe that a crime had been committed and probable cause to believe that evidence of the crime in question will be found" and that "an immediate, warrantless search is necessary in order to ... prevent the destruction or loss of evidence."[People v. Morse, 68 Mich.App. 150, 242 N.W.2d 47(1976).]Indeed, the case for permitting a taking of the blood sample upon probable cause that the defendant is intoxicated without first arresting him is, if anything, stronger than the case for the searches conducted in Cupp [Cupp v. Murphy, 412 U.S. 291, 93 S.Ct. 2000, 36 L.Ed.2d 900(1973) ] and Franklin [Franklin v. State, 18 Md.App. 651, 308 A.2d 752(1973) ].In the blood sample case, as opposed to those cases, there is no room whatsoever for the argument that the lack of a formal arrest may decrease somewhat the chances that the evidence will be destroyed, for the "evanescent" character of the evidence is inherent in its nature and does not depend upon any motive of the defendant to destroy it.That is, the need for the blood sample arises out of the fact, as stated in Schmerber v. California, "that the percentage of alcohol in the blood begins to diminish shortly after drinking stops," an emergency which is in no way affected by whether or not the defendant has been formally arrested.It is the height of formalism, to say the least, to suggest that a warrantless search on probable cause in order to meet this emergency is reasonable only if the police first declare the hospitalized defendant under arrest.In particular, it "would be ridiculous to require a police officer to perform some formal ritual of arrest over the unconscious body of a critically injured person who was a party to a fatal automobile accident."[People v. Morse, 68 Mich.App. 150, 242 N.W.2d 47(1976).]The claim that the contrary position "provides some measure of assurance that probable cause is based upon considerations independent of the blood-alcohol test results"[Layland v. State, 535 P.2d 1043(Alaska1975) ] is untenable, as the need for a court to determine that probable cause existed prior to the test is present under either rule.

2 W. LaFave, Search and Seizure§ 5.4, at 343-44(1978)(footnotes omitted).The conclusion we have reached was forecast by our decision in People v. Fidler, 175 Colo. 90, 94, 485 P.2d 725, 727(1971), where we stated:

The record here does not disclose when Fidler was arrested.This is not a controlling fact under the circumstances of this case.The patrol officer, given the facts as to the collision, the smell of alcohol on defendant's breath and the finding of two half-emptied wine bottles in defendant's vehicle, had probable cause to direct the withdrawal of the blood.

Other courts have reached the same result.E.g., Filmon v. State, 336 So.2d 586(Fla.1976);State v. Mitchell, 245 So.2d 618(Fla.1971);DeVaney v. State, 259 Ind. 483, 288 N.E.2d 732(1972);State v. Findlay, 259 Iowa 733, 145 N.W.2d 650(1966);State v. Graham, 278 So.2d 78(La.1973);State v. Aguirre, 295 N.W.2d 79(Minn.1980);State v. Oevering, 268 N.W.2d 68(Minn.1978)(defendant unconscious);State v. Deshner, 158 Mont. 188, ...