Appeal from the District Court Arapahoe County District Court
Case No. 15CR2400 Honorable F. Stephen Collins, Judge
Attorneys for Plaintiff-Appellant: George H. Brauchler,
District Attorney, Eighteenth Judicial District Jennifer
Gilbert, Deputy District Attorney Centennial, Colorado
Attorneys for Defendant-Appellee: Lloyd L. Boyer, P.C. Lloyd
L. Boyer Englewood, Colorado
Just after midnight on September 6, 2015, Officer Luke
Bishard responded to a report of a vehicle driving
erratically, swerving between lanes and driving northbound in
the southbound lanes of the road. Officer Bishard made
contact with the driver of the vehicle-the defendant, Melissa
King-and he observed that her eyes were glassy and her speech
was slurred. King admitted to having stopped for a drink on
her way home from work. She attempted but failed to
successfully perform voluntary roadside maneuvers.
Officer Bishard arrested King for driving under the influence
of alcohol ("DUI"). After the arrest, he read her
an advisement consistent with Colorado's Expressed
Consent Statute, section 42-4-1301.1, C.R.S. (2016), which
provides that a person who drives in the state of Colorado
consents to take a blood or breath test when requested to do
so by a law enforcement officer with probable cause to
suspect the motorist of driving under the influence.
King refused to submit to a either a blood or breath test.
Section 42-4-1301(6)(d), C.R.S. (2016), provides that if a
driver who refuses to submit to a test subsequently stands
trial for DUI, that refusal shall be admissible into evidence
The People charged King with DUI. Before trial, King filed a
motion to declare section 42-4-1301(6)(d) unconstitutional as
applied. The trial court granted King's motion,
[W]here, as in this case, law enforcement has not established
the existence of exigent circumstances or some other
exception to the warrant requirement, admission of . . .
refusal evidence in order to establish [a] defendant's
guilt would improperly punish a defendant for exercising his
or her constitutional right [to be free from unreasonable
searches] and, thus, would violate the Due Process Clause.
court therefore precluded the People from introducing
evidence of King's refusal to consent to a blood or
breath test in order to establish her guilt.
The People filed this interlocutory appeal, and we now
reverse the trial court's order, for the reasons set
The trial court concluded that section 42-4-1301(6)(d) was
unconstitutional as applied to King. To prevail on an
as-applied constitutional challenge, the challenging party
must "establish that the statute is unconstitutional
'under the circumstances in which the plaintiff has acted
or proposes to act.'" Qwest Servs. Corp. v.
Blood, 252 P.3d 1071, 1085 (Colo. 2011) (quoting
Developmental Pathways v. Ritter, 178 P.3d 524, 534
(Colo. 2008)). "The practical effect of holding a
statute unconstitutional as applied is to prevent its future
application in a similar context, but not to render it
utterly inoperative." Developmental Pathways,
178 P.3d at 534 (quoting Sanger v. Dennis, 148 P.3d
404, 411 (Colo.App. 2006)).
This court recently addressed the constitutionality of
section 42-4-1301(6)(d) in Fitzgerald v. People,
2017 CO 26, __ P.3d __. The petitioner in that case,
Fitzgerald, argued that the admission of refusal evidence
amounted to an impermissible penalty on the exercise of his
right to be free from unreasonable ...