Following is a scenario presented for Colorado readers of our criminal law blog posts at Shazam Kianpour & Associates.
You’re driving home and suddenly see flashing lights in your rear-view mirror. You duly pull over to the side of the road and are informed shortly thereafter of a police officer’s suspicion that you are operating your vehicle while impaired. You are told that you must submit to a blood test to determine your blood-alcohol content. You will be charged with drunk driving if your BAC is over the legal limit.
You object to that, asking instead to be administered a breath test. In fact, it is your right under Colorado statutory law to make that request.
And yet it is refused. The officer insists on a blood sample, stating that it is required and that no alternative exists.
How will that play out in court if you are ultimately convicted on a DUI charge?
Candidly, it is playing out in both ways. That is, some cases are yielding convictions and others are being tossed. A key issue surrounding “extraordinary circumstances” is at the heart of contested cases.
The above-cited state statute mandates a choice between breath and blood testing unless such circumstances exist. Reportedly, some Colorado police departments are insisting that they do regarding breath testing during the COVID-19 pandemic. Police agencies say that close interaction with test subjects puts officers at undue risk. They are denying recourse to breath testing and insisting on a blood draw.
Some cases have already been dismissed based on that unilateral exaction, with select courts deeming breath testing as reasonably safe and not posing extraordinary risks. They are backed in their view by the state’s Department of Public Health.
The issue will likely persist throughout the pandemic’s course.