to the District Court Arapahoe County District Court Case No.
Attorneys for Petitioner: Richards Carrington, LLC
Christopher P. Carrington Denver, Colorado, Foster Graham
Milstein & Calisher, LLP Chip G. Schoneberger Denver,
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
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.
¶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.
Facts and Procedural History
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.
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.
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
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.
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 ...