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Fitzgerald v. People

Supreme Court of Colorado, En Banc

April 17, 2017

Daniel Fitzgerald, Petitioner:
v.
The People of the State of Colorado. Respondent:

         Certiorari to the District Court Arapahoe County District Court Case No. 14CV31801

          Attorneys for Petitioner: Richards Carrington, LLC Christopher P. Carrington Denver, Colorado, Foster Graham Milstein & Calisher, LLP Chip G. Schoneberger Denver, Colorado

          Attorneys for Respondent: George H. Brauchler, District Attorney, Eighteenth Judicial District Jennifer Gilbert, Deputy District Attorney Centennial, Colorado

          Attorneys for Amicus Curiae Colorado Attorney General: Cynthia H. Coffman, Attorney General Glenn E. Roper, Deputy Solicitor General L. Andrew Cooper, Deputy Attorney General Denver, Colorado

          Attorneys for Amicus Curiae Colorado District Attorneys' Council: Colorado District Attorneys' Council Thomas R. Raynes, Executive Director Denver, Colorado, First Judicial District Attorney's Office Donna Skinner Reed, Chief Appellate Deputy District Attorney Golden, Colorado

          Attorneys for Amicus Curiae Mothers Against Drunk Driving (MADD): The Gold Law Firm, L.L.C. Michael J. Rosenberg Pamela B. Maass Greenwood Village, Colorado

          JUSTICE EID concurs in the judgment, and CHIEF JUSTICE RICE and JUSTICE COATS join in the concurrence in the judgment.

          OPINION

          HOOD, JUSTICE

          ¶1 Colorado law provides that if a driver is suspected of driving under the influence of alcohol and refuses to take a test to determine the alcohol concentration of his blood or breath, then that refusal can be used as evidence against him at trial. Today, we are asked to decide whether the use of this "refusal evidence" violates a defendant's Fourth Amendment right to be free from unreasonable searches. We conclude it does not.

         I. Facts and Procedural History

         ¶2 A little after midnight on June 30, 2013, Detective Billy Todis saw the defendant, Daniel Fitzgerald, driving erratically with a headlight out, so he pulled him over and asked him to produce his driver's license, registration, and proof of insurance. While Fitzgerald struggled to find these documents, Detective Todis smelled alcohol in the car and noticed Fitzgerald had watery eyes. He asked Fitzgerald whether he had been drinking. Fitzgerald said he had consumed one beer. The detective asked Fitzgerald to perform voluntary roadside sobriety maneuvers. Fitzgerald declined.

         ¶3 After deciding to place Fitzgerald under arrest for driving under the influence ("DUI"), Detective Todis gave Fitzgerald an expressed consent advisement. According to the detective's testimony at trial, he first told Fitzgerald at the scene of the stop: "[B]y driving in the State of Colorado you automatically give your express consent to give a chemical test of your blood or breath when contacted by a peace officer for the investigation of a DUI." Later, at the police station, Detective Todis provided Fitzgerald with a written advisement form to the same effect as the oral advisement. Fitzgerald refused to take a chemical test of his blood or breath.

         ¶4 Before trial, Fitzgerald filed a motion in limine to prevent the prosecution from introducing evidence or commentary regarding his refusal to submit to a chemical test. He argued that introducing such evidence or commentary would penalize him for refusing to waive his Fourth Amendment right to be free from warrantless searches. The court denied Fitzgerald's motion.

         ¶5 At trial, Detective Todis testified regarding Fitzgerald's refusal to submit to a chemical test, and the prosecutor argued that Fitzgerald's refusal showed consciousness of guilt. The jury convicted Fitzgerald of driving while ability impaired ("DWAI"), a lesser-included offense of DUI.

         ¶6 Fitzgerald appealed his conviction to the district court. The district court affirmed, reasoning that under Colorado's expressed consent law, once Detective Todis had probable cause to believe Fitzgerald was driving under the influence, he had authority to request that Fitzgerald complete a chemical test of his blood or breath. Although Fitzgerald was free to decline that request, that right to refuse was statutory, not constitutional. The district court highlighted that the statute specifically authorizes use of a driver's refusal to consent as ...


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