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People v. Maxwell

Supreme Court of Colorado

May 15, 2017

The People of the State of Colorado, Plaintiff-Appellant
v.
Depree Lavar Maxwell, Defendant-Appellee

         Interlocutory 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, Colorado

          HOOD JUSTICE

         ¶1 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.

         ¶2 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.

         ¶3 Maxwell refused to submit to a either a blood or breath test.

         ¶4 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 at trial.

         ¶5 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 challenge, reasoning:

[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.

         The 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.

         ¶6 The People filed this interlocutory appeal, and we now reverse the trial court's order, for the reasons set forth below.

         ¶7 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)).

         ¶8 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 ...


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