People v. Tarr, 18CA0485

Docket Nº18CA0485
Citation2022 COA 23
Case DateFebruary 24, 2022
CourtCourt of Appeals of Colorado

2022 COA 23

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

Christopher Oneil Tarr, Defendant-Appellant.

No. 18CA0485

Court of Appeals of Colorado, Third Division

February 24, 2022

Arapahoe County District Court No. 16CR2335 Honorable Ben L. Leutwyler III, Judge


Philip J. Weiser, Attorney General, Brock J. Swanson, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Casey Klekas, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant



¶ 1 In a case involving an unconscious driver suspected of driving under the influence of alcohol (DUI), the Colorado Supreme Court broadly pronounced that "there is no constitutional right to refuse a blood-alcohol test" under Colorado's expressed consent statute, section 42-4-1301.1, C.R.S. 2021. People v. Hyde, 2017 CO 24, ¶ 27, 393 P.3d 962, 968-69. Today we hold that this broad language also applies to conscious drivers who refuse to take a blood-alcohol test when a law enforcement officer has probable cause to suspect that the driver committed vehicular homicide.

¶ 2 Christopher Oneil Tarr appeals his judgment of conviction for second degree murder, attempted second degree murder, vehicular homicide (DUI), vehicular homicide (reckless driving), DUI, reckless driving, and careless driving. We affirm.

I. Background Facts

¶ 3 We begin with a summary of the evidence presented at trial. Tarr and his roommate, R.T., drove together in Tarr's car to a bar to drink and play pool. R.T. estimated that, over the course of six to eight hours, he and Tarr drank between one and three pitchers of beer. When they left the bar shortly before midnight, R.T. offered to drive home. Tarr declined the offer, however, saying he was "fine."


¶ 4 While driving his familiar route home, Tarr accelerated to a high rate of speed to "test[] [the car's] turbo out a little bit," as a mechanic had recently worked on the vehicle. As the car raced toward an intersection, R.T. saw that the light was red and told Tarr "red light, red light" and "slow the fuck down." Tarr did not slow down or stop, however. He ran the red light and attempted to make a left turn. R.T. "closed his eyes and just prayed."

¶ 5 At that moment, J.M. and D.M. were crossing the intersection in a marked crosswalk. Traffic camera footage shows Tarr's car skidding as it turns left, rolling over, and coming to a stop in a parking lot. Although Tarr's car missed J.M., it struck D.M., who died from his injuries.

¶ 6 Officer Ernest Gonzales of the Aurora Police Department was the first law enforcement officer to speak with Tarr following the collision. Although Tarr denied drinking alcohol that night, Officer Gonzales detected the smell of alcohol on him.

¶ 7 Officer Rolando Gomez then arrived and began questioning Tarr. Tarr claimed he had been hit by another car going 100 miles per hour. But he admitted that he had been driving seventy miles


per hour, although he knew the speed limit was between forty and forty-five miles per hour.

¶ 8 Like Officer Gonzales, Officer Gomez smelled alcohol on Tarr's breath and noted that his speech was slurred. Tarr told Officer Gomez he had not been drinking alcohol but that he had smoked marijuana the previous day. After Tarr refused medical treatment, Officer Gomez asked Tarr to perform roadside sobriety maneuvers. Tarr initially agreed, but before Officer Gomez could administer the maneuvers, Tarr complained of a headache and was transported to the hospital.

¶ 9 Blood tests performed at the hospital showed that Tarr's blood alcohol content (BAC) was between .30 and .32 - roughly four times the limit for DUI - at the time of the collision.

¶ 10 The prosecution charged Tarr with (1) vehicular homicide (DUI); (2) vehicular homicide (reckless driving); (3) leaving the scene of a crash resulting in death; (4) DUI; and (5) reckless driving. It later added sixth and seventh charges: first degree murder (extreme indifference) and attempted first degree murder (extreme indifference). (At a preliminary hearing, the court dismissed the charge of leaving the scene of a crash.) After the close of evidence,


defense counsel requested that the jury be instructed, and be provided with a verdict form, on a lesser nonincluded charge of careless driving.

¶ 11 The jury convicted Tarr of the original four charges and the lesser nonincluded charge, as well as the lesser included offenses of the sixth and seventh charges - second degree murder and attempted second degree murder. The trial court merged Tarr's conviction for reckless driving with his conviction for vehicular homicide (reckless driving) and merged his convictions for vehicular homicide (reckless driving) and DUI with his conviction for vehicular homicide - DUI. The court sentenced him to forty years in the custody of the Department of Corrections for second degree murder, twenty years for attempted second degree murder, twenty-four years for vehicular homicide (DUI), and one year for careless driving, with the sentences to run concurrently.

II. Discussion

¶ 12 Tarr challenges his convictions on the grounds that the trial court erred by denying his motion to suppress the results of his BAC tests.


¶ 13 Tarr contests his convictions for second degree murder and attempted second degree murder on three additional grounds. First, he argues that the trial court erred by overruling his objection to the addition of the first degree murder and attempted first degree murder charges because the General Assembly intended that vehicular homicide be the sole applicable offense if a person causes the death of another while driving or operating a motor vehicle. Second, he contends that his conviction for second degree murder violates the Colorado Constitution's equal protection guarantee because there is no reasonable distinction between the conduct proscribed by the second degree murder statute and the conduct proscribed by the vehicular homicide (DUI) statute. Third, Tarr argues the prosecution presented insufficient evidence to sustain these convictions.

¶ 14 We reject these arguments.

A. The Blood Draws

¶ 15 Tarr contends that the blood draws were illegal searches under the Fourth Amendment to the United States Constitution and that the trial court erred by concluding they were legal based solely on the language of the expressed consent statute. We disagree.


1. Additional Facts

¶ 16 Officer Gomez followed the ambulance in which Tarr was transported to the hospital. At the hospital, Officer Gomez called a detective to inform him of the accident, that there was alcohol involved, and that "there was a chance that [D.M.] was not going to survive."

¶ 17 Inside Tarr's hospital room, Officer Gomez advised Tarr of the expressed consent statute. The statute provides that every driver in the state, by virtue of driving in the state, has consented to

take and complete, and to cooperate in the taking and completing of, any test or tests of the person's breath or blood for the purpose of determining the alcoholic content of the person's blood or breath when so requested and directed by a law enforcement officer having probable cause to believe that the person was driving [under the influence of alcohol].

§ 42-4-1301.1(2)(a)(I).

¶ 18 The officer advised Tarr that his only option for a BAC test was a blood draw, and that his refusal to submit to such a test would result in revocation of his license. Tarr responded, "You're not taking my blood." (The record does not reflect why, once in the hospital, Tarr no longer had the option of submitting to a breath


test. Tarr does not challenge the accuracy of Office Gomez's statement, however.)

¶ 19 Shortly thereafter, another officer informed Officer Gomez that D.M. had died. Officer Gomez told Tarr that, because of the fatality, if he did not consent, the blood draw would "have to be done forcefully if need be." Tarr again refused to consent to a blood draw, although he said he "wouldn't physically resist."

¶ 20 Tarr's blood was drawn three times that morning - at 1:19 a.m., 2:19 a.m., and 3:15 a.m. (Blood draws over time allow a forensic toxicologist to estimate the rate at which an individual's body eliminates alcohol and then extrapolate the individual's BAC at a particular time. See Mitchell v. Wisconsin, 139 S.Ct. 2525, 2536 (2019) (“Enforcement of BAC limits . . . requires prompt testing because it is ‘a biological certainty' that ‘[a]lcohol dissipates from the bloodstream at a rate of 0.01 percent to 0.025 percent per hour.”) (quoting Missouri v. McNeely, 569 U.S. 141, 148 (2013) (Roberts, C.J., concurring in part and dissenting in part).)

¶ 21 Tarr filed a pretrial motion to suppress evidence of the results of the blood draws. The trial court denied the motion, finding that the blood draws were "accomplished within the parameters of the


[expressed consent statute], a recognized exception to the warrant requirement."

2. Standard of Review

¶ 22 "Our review of a trial court's ruling on a motion to suppress presents a mixed question of fact and law. We defer to the trial court's factual findings if those findings are supported by competent evidence in the record; however, we review the trial court's legal conclusions de novo." People v. Shoen, 2017 CO 65, ¶ 8, 395 P.3d 327, 330 (citation omitted).

¶ 23 In addition, we must apply the standard of review for challenges to the constitutionality of a statute if Tarr contends the expressed consent statute is unconstitutional. Although he asserts that he is not making such an argument, he acknowledges that his appeal addresses "whether 'consent' implied by statute satisfies the Fourth Amendment's requirement of voluntariness when a conscious defendant objects to the State piercing his skin and extracting his...

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1 practice notes
  • People v. Eason, Court of Appeals No. 21CA0962
    • United States
    • Colorado Court of Appeals of Colorado
    • May 19, 2022 1270 (quoting People v. Wartena , 156 P.3d 469, 475 (Colo. 2007) ). We are bound by our supreme court's decisions, People v. Tarr , 2022 COA 23, ¶ 33, 511 P.3d 672, 679–80, and, thus, must follow Youngblood .¶ 69 The Colorado cases, however, have not considered whether a law enforcement ......
1 cases
  • People v. Eason, Court of Appeals No. 21CA0962
    • United States
    • Colorado Court of Appeals of Colorado
    • May 19, 2022 1270 (quoting People v. Wartena , 156 P.3d 469, 475 (Colo. 2007) ). We are bound by our supreme court's decisions, People v. Tarr , 2022 COA 23, ¶ 33, 511 P.3d 672, 679–80, and, thus, must follow Youngblood .¶ 69 The Colorado cases, however, have not considered whether a law enforcement ......

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