Appeal from the District Court Arapahoe County District Court
Case No. 15CR2484 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: Douglas K. Wilson, Public
Defender Yona Porat, Deputy Public Defender Centennial,
Just after 10:00 p.m. on September 19, 2015, Officer Jonathan
Higgs was patrolling Interstate 225 when he observed heavy
smoke in the air and vehicles applying their brakes. Officer
Higgs caught up to a white pickup truck with smoke pouring
out of it, and he signaled for the truck to pull over. The
defendant, Alan Sewick, was the driver of the vehicle. While
Officer Higgs and Sewick were talking, Officer Higgs noticed
that Sewick smelled of alcohol, was slurring his words, and
was unsteady on his feet. Sewick attempted to perform
voluntary roadside sobriety maneuvers, but failed.
Officer Higgs arrested Sewick for driving under the influence
of alcohol ("DUI"). He began to read Sewick 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. Officer Higgs could
not complete the advisement because Sewick became
belligerent, yelling at Officer Higgs and telling him to stop
reading. However, Officer Higgs asked Sewick whether he would
consent to a blood test or a breath test, and Sewick refused
to do so.
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 Sewick with DUI. Before trial, Sewick
filed a motion asking the trial court to declare section
42-4-1301(6)(d) unconstitutional on its face and as applied.
The trial court rejected Sewick's facial challenge, but
it granted Sewick's motion with respect to the as-applied
[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 Sewick's refusal to consent to a blood or
breath test in order to establish his 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 Sewick. 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 searches, guaranteed by
the Fourth Amendment to the United States Constitution.
Id. at ¶ 16.
Fitzgerald's argument was based on Griffin v.
California, 380 U.S. 609, 615 (1965), in which the
United States Supreme Court held that the Fifth Amendment
forbids the prosecution from commenting on a defendant's
refusal to testify at his own trial and the trial court from
instructing the jury that refusal is evidence of the
defendant's guilt. The Court explained that allowing
commentary on a defendant's silence would impose a
penalty on the assertion of a constitutional right.
Id. at 614. But, as we explained in
Fitzgerald, ¶ 19, the Supreme Court has
curtailed the application of Griffin in the context
of DUI refusal evidence, South Dakota v. Neville,
459 U.S. 553, 560 n.10 (1983) ("Unlike the
defendant's situation in Griffin, a person
suspected of drunk driving has no constitutional right to
refuse to take a blood-alcohol test. The specific rule of
Griffin is thus inapplicable."). We therefore
rejected Fitzgerald's contentions. See