County District Court No. 16CR706 Honorable Brian J. Flynn,
J. Weiser, Attorney General, Marixa Frias, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
A. Ring, Colorado State Public Defender, Emilyn Winkelmeyer,
Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Kim Maurice Fuerst, appeals his conviction for
driving while ability impaired (DWAI). We affirm.
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.
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.
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.