Appeal from the District Court Arapahoe County District Court
Case No. 15CR1100 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,
Officer Carlos Wilkendorf was patrolling near Lowry Park in
the early hours of April 25, 2015, when he saw a black SUV
parked in the parking lot despite the park being closed. He
approached the vehicle and found the defendant, Depree
Maxwell, asleep in the driver's seat, with a female
passenger also in the car. The passenger explained that they
had pulled into the park because Maxwell was too drunk to
drive. Officer Wilkendorf observed that Maxwell, now awake,
had bloodshot, watery eyes, was slurring his speech, and had
the odor of alcohol on his breath. Maxwell told Officer
Wilkendorf he had consumed a few beers. Another officer,
Officer Ryan Marker, arrived on the scene and continued the
investigation. Maxwell agreed to perform voluntary roadside
sobriety maneuvers, but failed.
Officer Marker arrested Maxwell for driving under the
influence of alcohol ("DUI"). After the arrest,
Officer Marker read Maxwell 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.
Maxwell 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 Maxwell with DUI. Before trial, Maxwell
filed a motion to declare section 42-4-1301(6)(d)
unconstitutional on its face and as applied. The trial court
rejected Maxwell's facial challenge, but it granted
Maxwell'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 Maxwell'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 Maxwell. 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 ...