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People v. Fuerst

Court of Appeals of Colorado, Fourth Division

January 10, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Kim Maurice Fuerst, Defendant-Appellant.

          Mesa County District Court No. 16CR706 Honorable Brian J. Flynn, Judge

          Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Emilyn Winkelmeyer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          HAWTHORNE, JUDGE

         ¶ 1 Defendant, Kim Maurice Fuerst, appeals his conviction for driving while ability impaired (DWAI). We affirm.

         I. Background

         ¶ 2 Defendant backed his car into a pickup truck. When a police officer arrived on the scene, a bystander told the officer that, after the accident, defendant had asked her if she wanted his beer because he needed to hide it.

         ¶ 3 Defendant agreed to perform several roadside sobriety tests. The horizontal gaze nystagmus test indicated that he was under the influence of a central nervous system depressant (CNS depressant). Alcohol is a CNS depressant. Defendant also performed poorly on the walk-and-turn and one-leg stand tests and had difficulty following the officer's instructions. Based on defendant's performance on these tests and his previous statement to the bystander about the beer, the officer believed defendant was under the influence of alcohol.

         ¶ 4 The officer arrested defendant and gave him the option of taking either a breath or blood test under section 42-4-1301.1(2)(a)(I), C.R.S. 2018, a provision in Colorado's Expressed Consent Statute. Defendant chose a breath test. The breath test results showed that defendant's blood alcohol content was zero.

         ¶ 5 The officer then concluded that "it had to be drugs" and asked defendant to take a blood test under section 42-4-1301.1(2)(b)(I). Defendant initially refused and asked to speak to the officer's supervisor. The supervising officer told defendant that if he didn't take the blood test, his driver's license would be revoked. Defendant then agreed to take the blood test.

         ¶ 6 The blood test revealed 101 nanograms of Alprazolam (Xanax) per milliliter, which is near the upper limit of the therapeutic range for that drug (25 to 102 nanograms per milliliter). Alprazolam is also a CNS depressant.

         ¶ 7 Before trial, defendant moved to suppress the blood test results. After hearing evidence and argument, the trial court denied the motion. ¶ 8 At trial, the jury found defendant not guilty of driving under the influence (DUI) but found him guilty of DWAI and unsafe backing.

         II. The Trial Court Didn't Err in Denying the Motion to Suppress the Blood Test Results

         ¶ 9 Defendant contends that the trial court erred in denying his motion because the officer's requiring him to complete the blood test - after he had already selected and completed the breath test - wasn't authorized by the Expressed Consent Statute and violated his constitutional rights. We disagree.

         A. Defendant Preserved His Argument

         ¶ 10 In defendant's written motion to suppress, he argued only that the officer didn't have probable cause to request that he take the blood test. But, at the evidentiary hearing on the motion, during closing argument, the trial court specifically asked the prosecutor, "[T]ell me your position on the law if someone agrees to take a breath test and then can law enforcement ask them for a second test . . . ?" The prosecutor answered that he wasn't aware of anything in the law that would prohibit the second test. Then, during his closing, defendant argued, among other things, that the officer couldn't invoke the Expressed Consent Statute a second time after he had already selected and completed the breath test.

         ¶ 11 Under these circumstances, we conclude that defendant preserved his contention for appeal.

         B. ...


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