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People v. Barry

Court of Appeals of Colorado, Second Division

January 29, 2015

The People of the State of Colorado, Plaintiff-Appellee,
Victoria Barry, Defendant-Appellant

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City and County of Denver District Court No. 11CR2082. Honorable William D. Robbins, Judge, Honorable Sheila A. Rappaport, Judge. Prior Opinion Announced October 9, 2014, WITHDRAWN.


Cynthia H. Coffman, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

Dean Neuwirth P.C., Dean Neuwirth, Denver, Colorado, for Defendant-Appellant.

Opinion by JUDGE CASEBOLT. Román and Gabriel, JJ., concur.



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Petition for Rehearing GRANTED

[¶1] Defendant, Victoria Barry, appeals the order denying her motion to suppress and the judgment of conviction and sentence entered on jury verdicts finding her guilty of vehicular homicide (driving under the influence); vehicular homicide (reckless driving); driving under the influence (DUI); driving with excessive alcohol content; and third degree assault. We affirm in part, vacate in part, and remand with directions.

I. Procedural History and Background

[¶2] At approximately 11:40 p.m. defendant was involved in a head-on collision in the northbound lanes of the divided highway of Interstate 25. Defendant was driving a dark blue sport utility vehicle (SUV) and one victim, L.D., was driving a light-colored sedan. The collision occurred because one of these two vehicles was traveling in the wrong direction on the roadway.

[¶3] L.D. was killed on impact. When the SUV and the sedan collided, the vehicles spun and the SUV hit another car, a Mercury Mountaineer. This second collision injured victims J.M., the driver of the Mountaineer, and M.B., a passenger.

[¶4] A police officer arrived at the scene of the accident within minutes of the collision. He assessed the passengers in the vehicles for injuries and spoke with defendant for approximately thirty seconds. He observed no overt signs that she was intoxicated but noted that she was alone in the car and was dazed and disoriented.

[¶5] When a second officer arrived on scene, he spoke with defendant while she was being cared for by emergency medical personnel. When he asked defendant how the accident had happened, she responded, " What accident?" Defendant also told this officer that she had been at a local tavern and had consumed " a drink." He spoke with defendant for less than one minute before medical personnel resumed treatment and took her to the hospital. Other than her confusion and the statement about the drink, he noticed no indicia of intoxication.

[¶6] While on the scene, the second officer received notification from his dispatcher that, minutes before the accident occurred, multiple 911 callers had reported a black SUV driving the wrong way on northbound Interstate 25 near the accident site. He relayed this information to a traffic investigation detective once the detective arrived on the scene.

[¶7] After learning the above information, the detective noted that defendant's SUV was dark blue, but it was such a dark color that it appeared black. The detective directed a third officer to speak with defendant at the hospital. This officer noted that defendant " spoke well," but she could not remember getting on the highway. Defendant again mentioned being at a local tavern and asked the officer about the condition of the other people in her car. The officer noted no indicia of intoxication except for her inquiry about other passengers in her vehicle (there were none).

[¶8] At approximately 1:00 a.m., the detective ordered Officer Curtis, a DUI officer, to go to the hospital to obtain a blood sample from defendant for alcohol analysis. Officer Curtis arrived at the hospital at approximately 1:30 a.m. and saw defendant being attended by medical personnel. While waiting for a chance to speak with defendant, he observed her and noted that her responses to medical personnel were slow, her speech was slurred, and her eyes were red and watery.

[¶9] Curtis identified himself to defendant as a DUI officer and attempted to engage her in conversation, but defendant remained silent and did not respond to him. Curtis then obtained a DUI kit from a police office located within the hospital and ordered an emergency medical technician (EMT) to draw defendant's blood. Curtis observed the blood being drawn from defendant's arm. Police did not attempt to secure a warrant before obtaining the blood draw.

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[¶10] A later test of defendant's blood revealed a blood-alcohol content (BAC) of .219 grams of ethyl alcohol per 100 milliliters of blood, well over the legal limit.

[¶11] The prosecution ultimately charged defendant with DUI vehicular homicide in the death of L.D., reckless vehicular homicide in L.D.'s death, DUI, driving with excessive alcohol content, third degree assault as to J.M., and third degree assault as to M.B.

[¶12] Before trial, defendant moved to suppress the evidence of her BAC, arguing that (1) the blood was obtained without a warrant; (2) the police lacked probable cause to arrest her for an alcohol-related offense; and (3) there were no exigent circumstances sufficient to show that obtaining a warrant was impractical.

[¶13] At a hearing on the motion, the officers involved in the investigation testified to the above facts and observations. The detective also testified that the vehicle traveling in the wrong direction on the highway would have traveled at least ten to twelve blocks before reaching the accident site. He stated that at the time he ordered defendant's blood draw he did not know which vehicle was driving in the wrong direction and needed to investigate further to reach a conclusion. He acknowledged that J.M. had indicated that he was driving behind defendant's vehicle, which was in the correct lane. However, based on defendant's admission to having one drink before the accident and the 911 calls identifying a black SUV traveling the wrong direction near the accident site, he was investigating defendant for DUI.

[¶14] The trial court denied defendant's motion and the prosecution introduced defendant's BAC level at trial. The lab report showing these results was admitted without objection. Other evidence included a written certification from the EMT who drew defendant's blood that she had collected the blood by venipuncture. The EMT did not testify at trial. However, the analyst who conducted the BAC analysis testified at length as to the results, the chain of custody for defendant's blood samples, and the reliability of the machines that produced the analysis.

[¶15] The jury heard evidence of defendant's locations that night through her cell phone records. The detective, who was qualified as an expert in accident reconstruction, also testified that the positioning of the vehicles showed that defendant's vehicle was traveling the wrong way on the highway, which was inconsistent with the theory that L.D. had driven her car in the wrong direction. Additionally, defendant stipulated that the medical examination conducted on L.D. showed there was no trace of alcohol or drugs in her system.

[¶16] Defendant's theory of the case at trial was that she was not intoxicated and L.D. was the driver who caused the accident by driving the wrong way on the highway.

[¶17] The jury convicted defendant on all counts except third degree assault concerning J.M. The court sentenced defendant to ten years of imprisonment on the vehicular homicide DUI count and imposed concurrent sentences on the remaining counts.

II. Warrantless Blood Draw

[¶18] Defendant first contends that the trial court erred in denying her motion to suppress the BAC results because her blood was obtained without a warrant; the police lacked probable cause to believe that she had committed an alcohol-related driving offense; and there were no exigent circumstances that made it impractical to obtain a warrant. We conclude that there was probable cause to arrest defendant on an alcohol-related driving offense. We also conclude that, although there may be a question as to whether exigent circumstances existed for the warrantless blood draw under Missouri v. McNeely, 569 __ U.S. __, 133 S.Ct. 1552, 185 L.Ed.2d 696 (2013), a case decided after the notice of appeal was filed in this case, the police here acted in reasonable good faith reliance upon then-binding appellate court precedent. See Davis v. United States, 564 __ U.S. __, __, 131 S.Ct. 2419, 2434, 180 L.Ed.2d 285 (2011). Thus, suppression of the warrantless blood draw is not called for in these circumstances.

A. Standard of Review

[¶19] When reviewing a motion to suppress, we defer to a trial court's findings of fact as

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long as they are supported by the record, and we review de novo the court's conclusions of law. People v. Brunsting, 2013 CO 55, ¶ 15, 307 P.3d 1073. We may look only to the evidence presented in the suppression hearing in reviewing the trial court's ruling on such matters. Moody v. People, 159 P.3d 611, 614 (Colo. 2007).

[¶20] Whether an officer's actions with respect to conducting a nonconsensual blood draw without a warrant were in good faith reliance on then-binding appellate court precedent presents a question of law. Hence we review that issue de novo. See People v. Hagos, 250 P.3d 596, 619 (Colo. App. 2009).

B. Applicable Law

[¶21] The Fourth Amendment prohibits unreasonable searches and seizures. " [A] warrantless search of the person is reasonable only if it falls within a recognized exception" to the warrant requirement. McNeely, 569 U.S. at __, 133 S.Ct. at 1558.

[¶22] A blood draw is a search because it is " a compelled physical intrusion beneath [a defendant's] skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation." Id. This constitutes " an invasion of bodily integrity [that] implicates an individual's 'most personal and deep-rooted expectations of privacy.'" Id. (quoting Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985)); see also Grassi v. People, 2014 CO 12, ¶ 23, 320 P.3d 332 (" Drawing blood from an unconscious party is a search that is 'subject to the protections of the Fourth Amendment to the United States Constitution.' In the motor vehicle context, the police infringe upon these protections if they draw blood from a non-consenting driver absent probable cause that he committed an alcohol-related driving offense." (quoting in part People v. Schall, 59 P.3d 848, 851 (Colo. 2002) (citation omitted)).

[¶23] A warrantless, nonconsensual blood draw is reasonable if four criteria are satisfied:

(1) there must be probable cause for the arrest of the defendant on an alcohol-related driving offense; (2) there must be a clear indication that the blood sample will provide evidence of the defendant's level of intoxication; (3) exigent circumstances must exist which make it impractical to obtain a search warrant; and (4) the test must be a reasonable one and must be conducted in a reasonable manner.

Schall, 59 P.3d at 851.

[¶24] Relying on Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), Colorado courts have held that " [b]ecause alcohol dissipates quickly in the blood, exigent circumstances exist when time has elapsed while the driver is transported to a hospital and the investigating officer is detained at the accident scene." Schall, 59 P.3d at 853 (internal quotation marks omitted). Hence, before the opinion in McNeely, Colorado appellate precedent did not require a warrant to be obtained before drawing blood under such circumstances.

[¶25] However, the United States Supreme Court has recently held that the natural metabolization of alcohol in the bloodstream does not present a per se exigency that justifies an exception to the Fourth Amendment's search warrant requirement for nonconsensual blood testing in all drunk-driving cases. McNeely, 569 U.S. at __, 133 S.Ct. at 1561. Instead, exigency in this context must be determined case by case based on the totality of the circumstances. Id.; see also People v. Schaufele, 2014 CO 43, ¶ ¶ 23-24, 325 P.3d 1060. The totality of the circumstances test is a " finely tuned" fact-based approach, intended to be malleable enough to address the " variety of circumstances [that] may give rise to an exigency sufficient to justify a warrantless search . . . ." McNeely, 569 U.S. at __, 133 S.Ct. at 1559; see also Schaufele, ¶ 24; accord Brunsting, ¶ ¶ 15, 28.

[¶26] Defendant challenges the warrantless blood draw on probable cause and exigent circumstances grounds, the first and third prongs of the test.

1. Probable Cause and Fellow Officer Rule

[¶27] " Probable cause is a flexible standard deriving from a common sense concept of reasonableness." People v. Grazier,

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992 P.2d 1149, 1153 (Colo. 2000). The police have probable cause to support a blood draw " when the facts and circumstances known to the police are sufficient to warrant the belief by a reasonable and prudent person that the defendant committed an alcohol-related offense." Schall, 59 P.3d at 851. This probable cause determination must rest " on all of the facts and circumstances known to the police at the time . . . ." Id.

[¶28] To establish probable cause, the police need not possess absolute certainty of the driver's misconduct but must instead develop " that degree of certainty upon which reasonable and prudent people rely in making decisions in everyday life." Id. " While certain facts may not establish probable cause in isolation, those same facts may support a finding of probable cause when considered in combination." Grassi, ¶ 23 (citing Schall, 59 P.3d at 852).

[¶29] The fellow officer rule operates to impute information that the police possess as a whole to an individual officer. Id. at ¶ 13. " '[W]here law enforcement authorities are cooperating in an investigation, . . . the knowledge of one is presumed shared by all.'" Id. at ¶ 14 (citing Illinois v. Andreas, 463 U.S. 765, 771 n.5, 103 S.Ct. 3319, 77 L.Ed.2d 1003 (1983)). When the police expand the scope of their investigation to include other officers not currently on scene, " the fellow officer rule operates to integrate those outside officers and make them part of the coordinated investigation." Id.

[¶30] The fellow officer rule imputes shared information to an individual officer if two conditions are met: (1) the officer must act " at the direction [of] or as a result of communications with another officer, thus ensuring that he acted pursuant to a coordinated investigation" ; and (2) " the police as a whole" must possess the information. Id. at ¶ 15 (internal quotation marks omitted). So long as the police remain engaged in a coordinated investigation, the rule encompasses information that the police as a whole possess at the time of a search or arrest. Id. at ¶ 18. Therefore, the rule encompasses any information that the police gather between the initial assignment and the officer's ultimate search or arrest as part of a coordinated investigation. Id. at ¶ 21.

2. Driving While Impaired or Intoxicated

[¶31] Driving while ability impaired in the alcohol context ...

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