Turbyne v. People
| Decision Date | 16 January 2007 |
| Docket Number | No. 06SC21.,06SC21. |
| Citation | 151 P.3d 563 |
| Parties | Glenn TURBYNE, Petitioner v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
District Attorney, Aurora, Colorado, Attorneys for Respondent.
We granted certiorari in this case to review the Arapahoe County District Court's judgment reinstating charges of driving under the influence of alcohol and driving with excessive alcohol content in breath.1 The Arapahoe County Court had dismissed those charges against Petitioner, Glenn Turbyne ("Turbyne"), for failure of the arresting officer to administer the requested blood test Turbyne selected under Colorado's express consent statute (formerly known as the "implied consent law"), section 42-4-1301.1, C.R.S. (2006).
The arresting officer attempted to procure administration of the blood test according to police department protocols for response by a private paramedic service or the fire department, but was not successful due to weather-related delays and a high call volume. Upon determining that he could not obtain a blood test within the required two hour period, the arresting officer asked Turbyne to consent to a breath test. § 42-4-1301.1(2)(a)(III), C.R.S. (2006) (). Turbyne refused. The officer advised Turbyne that he could lose his driver's license if he did not consent to the breath test. Turbyne then agreed to submit to the breath test, which demonstrated an alcohol level more than twice the legal limit.
We uphold the district court's order reinstating the charges against Turbyne. The police department had an adequate protocol in place for administering the requested blood test, but the arresting officer could not obtain its performance within the required two hour period because of extraordinary circumstances beyond his control that included weather-related delays and a high call volume. Accordingly, the county court abused its discretion by dismissing the charges. However, we order suppression of the breath test results because they resulted from an invalid consent to search, due to the arresting officer's erroneous and coercive advice to Turbyne that he could lose his license by not submitting to a chemical test he had not selected.
Around 1:30 a.m. on April 29, 2005, Deputies McCauley ("the arresting officer") and Zachman responded to a report that a car was stopped in the middle of an intersection. The deputies approached the vehicle and saw Turbyne passed out in the driver's seat. After waking Turbyne up, the arresting officer saw that he had bloodshot, watery eyes and smelled the odor of an alcoholic beverage on his breath. The officer asked Turbyne to perform voluntary roadside sobriety tests. Turbyne agreed. He did not perform the tests satisfactorily. The arresting officer then placed Turbyne under arrest for suspicion of driving while under the influence of alcohol.
After placing Turbyne under arrest, the officer provided him with the option of taking either a breath or blood test pursuant to Colorado's express consent law. § 42-4-1301.1(2)(a)(I), C.R.S. (2006). Turbyne chose a blood test. The arresting officer contacted police dispatch to request that a paramedic meet them at Aurora Detox to perform the blood draw. The police department had a protocol in place whereby a private ambulance service or the fire department would respond with a person trained to administer blood draws.
After waiting at Detox for approximately one hour, the arresting officer again contacted dispatch to obtain the blood draw. Dispatch advised the officer that weather conditions and a high call volume prevented a timely response. Although there were several hospitals in the area, the arresting officer did not contact them because he knew from past experience that they would not perform blood draws unless an accident or an injury was involved.
The arresting officer explained to Turbyne that a blood test was unavailable and offered a breath test instead. Turbyne repeated his request for a blood test. The arresting officer repeated that Turbyne could take a breath test. Turbyne refused. The officer then told Turbyne that he could lose his license if he did not submit to a breath test. Turbyne then submitted to the breath test.
The breath test analysis measured Turbyne's breath alcohol content as .184, more than twice the legal limit. Accordingly, the arresting officer issued Turbyne a summons and complaint for Driving a Vehicle while Under the Influence of Alcohol and Driving a Vehicle with Excessive Alcohol Content in Breath pursuant to sections 42-4-1301(1)(a) and (2)(a), C.R.S. (2006).
Turbyne filed a motion in county court to suppress the results of the breath test. He also appeared at a motor vehicle license revocation hearing to contest loss of his license. The administrative hearing officer dismissed the revocation proceeding upon determining that the police did not have good cause for not complying with Turbyne's selection of the blood test.
In connection with an evidentiary hearing before the county court, Turbyne moved for dismissal of the charges. The county court found that the circumstances the arresting officer faced in this case were beyond his control: "Well, the Court finds that what you encountered in this case is certainly beyond the officer's control, you can't get anybody to come help you and take the blood test, right?" Nevertheless, the county court ruled that this
The county court then dismissed the charges, for the same reason as the hearing officer had dismissed the license revocation proceeding, that the police lacked good cause for not complying with Turbyne's selection of the blood test.
In its appellate capacity, the district court reversed the county court's order of dismissal.2 The district court concluded that the arresting officer had good cause for not complying with Turbyne's selection of the blood test. The district court reached this result by agreeing with the trial court's finding that the circumstances were beyond the control of the arresting officer, while disagreeing with the trial court's legal conclusion based upon that finding:
The trial court determined that no "factual" situation would support a finding of good cause. The trial court interpreted Riley to require a "legal" excuse.
This Court cannot agree with the trial court's application of the law to the evidence in this case and finds that the trial court applied an erroneous legal standard to the evidence. Riley states that "good cause" would generally require a substantial reason amounting in law to a legal excuse for failing to perform an act required by law, and might include circumstances beyond the officer's control. Riley at 221. The use of the term "circumstances" does not mean "legal circumstances." That term must be interpreted in the context in which it is used. "Circumstances beyond the officer's control" means a factual situation which the officer did not create. To read this direction from the Colorado Supreme Court in any other way would lead to the conclusion that a phlebotomist must be on duty with every law enforcement agency 24 hours a day, seven days a week. This reading simply strains the "good cause" exception recognized by the Riley court.
The district court did not address whether the breath test had been validly administered in lieu of the blood test.
We uphold the district court's order reinstating the charges against Turbyne. The police department had an adequate protocol in place for administering the requested blood test, but the arresting officer could not obtain its performance within the required two hour period because of extraordinary circumstances beyond his control that included weather-related delays and a high call volume. Accordingly, the county court abused its discretion by dismissing the charges. However, we order suppression of the breath test results because they resulted from an invalid consent to search, due to the arresting officer's erroneous and coercive advice to Turbyne that he could lose his license by not submitting to a chemical test he had not selected.
When construing a statute, our primary purpose is to ascertain and effectuate the intent of the General Assembly. People v. Weiss, 133 P.3d 1180, 1184 (Colo.2006). First, we look to the plain and ordinary meaning of the statutory language to determine the legislative intent. People v. Cross, 127 P.3d 71, 73 (Colo.2006). "If the statutory language is clear, we apply the plain and ordinary meaning of the provision." Weiss, 133 P.3d at 1184. We do not add words to the statute or subtract words from it. Colo. Dep't of Revenue v. Hibbs, 122 P.3d 999, 1004 (Colo.2005); Colo. Dep't of Labor & Employment v. Esser, 30 P.3d 189, 196 (Colo.2001).
The statute provides that a police officer with probable cause to believe that the driver has committed an alcohol-related offense may invoke Colorado's express consent law. This law consists of a number of provisions. Those relevant to the case before us include that (1) the driver expressly agrees to select and complete either a blood or breath test upon request of the police officer, (2) the driver may select which test to take, (3) the driver's refusal to select and complete the selected test results in revocation of the driver's license for a year, and (4) the driver must submit to the test...
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