Appeal from the District Court Arapahoe County District Court
Case No. 15CR3147 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,
The defendant, Depree Maxwell, was involved in a car crash on
November 20, 2015. Responding police officers observed that
Maxwell appeared to be intoxicated: he smelled of alcohol,
had bloodshot and watery eyes, and was slurring his speech.
Maxwell was unable to provide his driver's license or
proof of insurance, and he admitted to having consumed a few
shots of vodka prior to the crash. He attempted to perform
voluntary roadside sobriety maneuvers, but failed.
One of the officers arrested Maxwell for driving under the
influence of alcohol ("DUI"). After the arrest, he
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 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 ...