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holding that the defendant was in custody because, inter alia, defendant knew the police had grounds to arrest him
Summary of this case from State v. Sagapolutele-SilvaOpinion
No. 09SA330.
June 21, 2010.
Appeal from the District Court, Washington County, Douglas Vannoy, J.
Robert E. Watson, District Attorney, Thirteenth Judicial District, Nancy Jerman, Deputy District Attorney, Sterling, Colorado, Attorneys for Plaintiff-Appellant.
Douglas K. Wilson, Public Defender, Lauren Crisera, Deputy State Public Defender, Sterling, Colorado, Attorneys for Defendant-Appellee.
In this interlocutory appeal by the prosecution, we review the trial court's decision to suppress defendant Rodger Null's incriminating statements, to suppress his refusal to take a breath test, and to dismiss the driving-under-the-influence ("DUI") charge against him. The suppression of Null's statements presents an appropriate basis for interlocutory appeal, but the suppression of his refusal to take a breath test and the dismissal of the DUI charge do not. To avoid piecemeal litigation and potential double-jeopardy concerns, we exercise our discretion to review the entire appeal under Rule 21 of the Colorado Appellate Rules, and we affirm.
In this case, Null was detained on the side of the road while Washington County police officers investigated him for drunk driving. Null was not free to leave during this time, and he failed a series of roadside sobriety tests, including a preliminary breath test. Following this relatively lengthy detention, two officers surrounded Null, whose back was against a patrol car, and interrogated him without first advising him of his Miranda rights. Null gave several incriminating responses. Applying our precedent in People v. Taylor, 41 P.3d 681 (Colo. 2002), and People v. Thomas, 839 P.2d 1174 (Colo. 1992), we agree with the trial court's determination that Null was in custody during questioning. Hence, we affirm that court's order to suppress his incriminating statements.
We also affirm the trial court's determination that Null's rights were violated under Colorado's express consent statute, section 42-4-1301.1, C.R.S. (2009). After interrogating Null, the officers informed him that, pursuant to the express consent statute, he was obligated to take either a blood test or a breath test to determine his blood alcohol content. Null chose a blood test, but the ambulance service, without explanation, refused to come to the jail to perform the test. The arresting officer then told Null that he either had to take a breath test or refuse testing altogether. Null refused testing.
The express consent statute not only obligates a driver to take a blood or breath test but also obligates law enforcement to provide a driver with the test that he or she chooses absent extraordinary circumstances. The trial court found that no extraordinary circumstances justified law enforcement's failure to provide Null with a blood test. As a remedy for this violation, the court suppressed Null's refusal to take the breath test and dismissed the DUI charge. We agree with the trial court's findings of fact and conclusions of law. According to the language of the express consent statute and our precedent, the prosecution has the burden to show that extraordinary or non-routine circumstances prevented medical personnel from responding to law enforcement's requests for a blood draw. The prosecution in this case presented no evidence to explain why medical personnel refused law enforcement's request. It therefore failed to carry its burden. Thus, we affirm the trial court's decision to suppress the evidence of Null's refusal to take a breath test. We also conclude that the trial court did not abuse its discretion by dismissing the DUI charge. We remand this case to the trial court for proceedings consistent with this opinion.
I. Facts and Proceedings Below
In April 2009, Deputy Henderson of the Washington County Sheriff's Office responded to a call concerning a stranded motorist on County Road 30. When Deputy Henderson arrived at the scene, he saw Null sitting in a van parked on the side of the road. Null flashed his headlights at Henderson, and Henderson pulled over and approached the vehicle. Null's eyes looked bloodshot, and his speech appeared slurred. Henderson asked Null for his license and registration, and Null provided a Colorado Identification Card. Henderson contacted dispatch and discovered that Null's license had been revoked. Deputy Henderson asked Null if he had been drinking, and Null responded that he had consumed a few beers earlier. Henderson then asked Null to perform several roadside sobriety tests, such as walking heel-to-toe in a straight line and counting while standing on one leg. Null failed these tests.
Henderson then told Null to lean against his patrol car while he called another officer, Deputy Palmer, to come to the scene to administer a preliminary breath test. While Henderson called Palmer, Null began to walk away from the patrol car into an adjacent field. Henderson followed Null into the field and told him to turn around and stop. Null lay down in the field. Henderson then told Null to get up and return to the patrol car. Null complied.
Approximately fifteen minutes after Henderson first encountered Null, Palmer arrived to administer a preliminary breath test. The results showed that Null had a breath alcohol level of 0.19, well in excess of the legal limit. The trial court found that Null had his back to the patrol car at this point, and the two officers stood approximately four or five feet away, one to Null's left and the other to his right. The officers' weapons were not drawn. But, Henderson testified that if Null had tried to walk away again, he would have "chased" him.
Pursuant to section 42-4-1301(2)(a), C.R.S. (2009), it is a misdemeanor for "any person to drive a motor vehicle or vehicle when the persons [blood or breath alcohol content] is 0.08 or more at the time of driving or within two hours of driving."
The two officers then began to question Null about how much alcohol he had consumed, where he was coming from, and how he had arrived at his present location. The officers testified that they knew these questions were likely to lead to incriminating responses. Null answered the officers' questions. He initially stated that a friend had been driving the van and had gone looking for help. He later admitted that he had driven the van.
After questioning Null, Deputy Palmer advised him of his right to choose either a breath or blood test under Colorado's express consent statute, section 42-4-1301.1(2)(a)(I). Null requested a blood test. The officers then advised Null of his Miranda rights and placed him under arrest for driving under the influence of alcohol.
Henderson placed Null in his patrol car and took him to the Washington County jail. The Washington County Sheriff's Office contracts with the ambulance service for Washington County to do blood tests for alcohol under the express consent statute. On the way to the county jail, Henderson called police dispatch and asked them to contact the ambulance service for a blood test. Dispatch called the ambulance service but received no response. Upon arriving at the jail, Henderson contacted dispatch again, and dispatch called the ambulance service a second time. Several minutes later, dispatch notified Henderson that the ambulance service had refused to respond. Dispatch did not tell Henderson why the ambulance service refused to respond, and the prosecution has offered no evidence explaining this refusal. Henderson informed Null that no one was available to do a blood test and that Null would have to take a breath test instead or refuse testing. Null refused testing.
The prosecution charged Null with a felony for aggravated driving after revocation, in violation of section 42-2-206(1)(b), C.R.S. (2009); with a misdemeanor for driving under the influence, in violation of section 42-4-1301(1)(a), C.R.S. (2009); and with other offenses for driving under restraint, failing to have insurance, and failing to have a registration card with the vehicle.
After a pretrial evidentiary hearing, the court granted Null's motion to suppress his incriminating statements. The court ruled that, after Henderson brought Null back to the patrol car and the officers physically surrounded him, "a reasonable person in [Null's] position would have believed that his liberty was constrained to an extent associated with a formal arrest." The court explained that, at this point in the encounter, "the situation had morphed from an initial citizen-police encounter[,] to an investigatory detention, into a formal arrest." The court concluded that Null was in custody for Miranda purposes and suppressed the incriminating statements that he made in response to the officers' questioning.
The court also granted Null's motion to dismiss the DUI charge and to suppress the evidence of his refusal to submit to the breath test. The court stated that the failure to provide Null with his requested blood test violated Null's statutory rights under Colorado's express consent statute. The court reasoned that suppression of Null's refusal to take the breath test and dismissal of the alcohol-related charge were proper remedies unless the prosecution presented evidence that exceptional circumstances justified the failure to provide the requested test. The court found that the record did not disclose why the medical personnel refused to administer the blood test. The court concluded that "there [was] no showing of extraordinary circumstances justifying the failure of the medical personnel responding to administer the test." Therefore, the court ordered the suppression of the evidence of Null's refusal to submit to a breath test and dismissed the DUI charge.
II. Jurisdiction
The prosecution brought this case as an interlocutory appeal pursuant to section 16-12-102, C.R.S. (2009), and C.A.R. 4.1. Under C.A.R. 4.1, the prosecution may file an interlocutory appeal from a ruling of the trial court suppressing three types of evidence: (1) evidence obtained pursuant to an unlawful search and seizure, Crim. P. 41(e); (2) an involuntary confession or admission, Crim. P. 41(g); or (3) an improperly ordered or supported nontestimonial identification, Crim. P. 41.1(i). See People v. Braunthal, 31 P.3d 167, 171 (Colo. 2001). The statute and the rule provide "extremely narrow" grounds for an interlocutory appeal by the prosecution. Id. We have dismissed cases that did not follow these procedures or seek relief under the specific circumstances outlined in C.A.R. 4.1. See, e.g., People v. McNulty, 173 Colo. 491, 493, 480 P.2d 560, 561 (1971).
Where the grounds for an interlocutory appeal are absent, however, the Colorado Constitution and C.A.R. 21 provide this court with jurisdiction to review cases on the merits as original proceedings. Colo. Cons. art. VI, § 3; C.A.R. 21; Braunthal, 31 P.3d at 167. The exercise of original jurisdiction is discretionary. Jones v. District Court, 780 P.2d 526, 528 (Colo. 1989). We have exercised such jurisdiction when a pretrial ruling "significantly interfered with a party's ability to litigate" the case, People v. District Court, 793 P.2d 163, 166 (Colo. 1990) (exercising original jurisdiction to review trial court's order preventing prosecution from calling crucial informant as witness), and to review an abuse of discretion when an appellate remedy would not otherwise suffice, People v. District Court, 790 P.2d 332, 334-35 (Colo. 1990) (exercising original jurisdiction to review trial court's order disqualifying the entire District Attorney's Office for the judicial district).
In the present case, the trial court's order to suppress Null's statements due to a Miranda violation involves an involuntary confession or admission under Crim. P. 41(g). Therefore, it presents a proper subject for interlocutory appeal under C.A.R. 4.1. However, the suppression of Null's refusal to take a breath test and the order to dismiss the DUI charge do not meet the requirements of C.A.R. 4.1 and the remedy would normally be an appeal to the court of appeals. See § 16-12-102(1), C.R.S. (2009) (order of court dismissing some, but not all, charges prior to trial is appealable to court of appeals); People v. Collins, 32 P.3d 636, 639 (Colo.App. 2001) (under section 16-12-102(1), court of appeals may review any order dismissing one or more charges prior to trial). Hence, we consider whether it is appropriate to exercise original jurisdiction over these issues.
Suppression of Null's refusal to take a breath test could significantly impede the prosecution's case. Likewise, an appellate remedy could raise double jeopardy issues. For example, if the trial were to proceed with wrongly suppressed evidence, and if Null were to be acquitted, then he could not be retried. See People v. Casias, 59 P.3d 853, 856 (Colo. 2002) (exercising original jurisdiction in light of similar double jeopardy concerns); People v. District Court, 793 P.2d 163, 166 (Colo. 1990) (same). Finally, it would waste public and judicial resources to consider these appeals piecemeal. Therefore, we conclude that it is proper to exercise original jurisdiction over the merits of the prosecution's appeal.
III. Miranda Violation
Initially, we review the trial court's determination that Null's Miranda rights were violated because he was in custody when he made incriminating statements to the arresting officers. The prosecution concedes that Null was subject to interrogation. Thus, we focus on whether he was "in custody" for Miranda purposes.
At the pretrial evidentiary hearing, the officers testified that they asked Null questions that they knew were likely to lead to incriminating responses. Therefore, Null was subject to interrogation. See Rhode Island v. Innis, 446 U.S. 291, 301, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980) (establishing that interrogation occurs whenever law enforcement officers use "words or actions which they should know are reasonably likely to elicit an incriminating response from the suspect"). The prosecution appears to concede this issue in its appeal.
The Fifth Amendment to the United States Constitution provides that no person "shall be compelled in any criminal case to be a witness against himself." U.S. Const. amend. V. In order to protect this right, police must provide a suspect in custody with certain warnings before subjecting him or her to interrogation. Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Statements obtained without such warnings are subject to suppression. People v. Lee, 630 P.2d 583, 590 (Colo. 1981).
When a trial court rules on a motion to suppress incriminating statements, the court engages in both fact-finding and law-application. People v. Hankins, 201 P.3d 1215, 1218 (Colo. 2009). A determination of whether a person was in custody during interrogation presents a mixed question of law and fact, which we review de novo. People v. Matheny, 46 P.3d 453, 462 (Colo. 2002).
Roadside detentions pursuant to routine traffic stops often do not implicate Miranda protections. People v. Archuleta, 719 P.2d 1091, 1093 (Colo. 1986) ("[T]he roadside questioning of a motorist detained pursuant to a routine traffic stop does not necessarily constitute `custodial interrogation' for the purpose of the rule established in Miranda."). A routine traffic stop is "presumptively temporary and brief," lasting "only a few minutes." Berkemer v. McCarty, 468 U.S. 420, 437, 104 S.Ct. 3138, 82 L.Ed.2d 317 (1984) (holding that ordinary traffic stops do not implicate Miranda protections). And it generally lacks the "police dominated" and coercive atmosphere that defines a custodial situation. Id. at 438-39, 104 S.Ct. 3138; see also People v. Reddersen, 992 P.2d 1176, 1180 (Colo. 2000) (holding that defendant was not in custody when he consented to a search because the officer was merely conducting a routine traffic stop).
This is not to say, however, that routine traffic stops may not become custodial. "If a motorist who has been detained pursuant to a traffic stop thereafter is subjected to treatment that renders him `in custody' for practical purposes, he will be entitled to the full panoply of protections prescribed by Miranda." Berkemer, 468 U.S. at 440, 104 S.Ct. 3138.
To determine whether a suspect was in custody, we ask whether a reasonable person in the suspect's position would have felt "deprived of his freedom of action to the degree associated with a formal arrest." People v. Taylor, 41 P.3d 681, 691 (Colo. 2002) (internal quotation marks omitted). This is an objective inquiry made on a case-by-case basis in light of the totality of the circumstances. People v. Horn, 790 P.2d 816, 818 (Colo. 1990).
Although there is no exclusive list of factors, we have considered the following circumstances to determine whether a suspect was in custody during interrogation:
(1) the time, place, and purpose of the encounter; (2) the persons present during the interrogation; (3) the words spoken by the officer to the defendant; (4) the officer's tone of voice and general demeanor; (5) the length and mood of the interrogation; (6) whether any limitation of movement or other form of restraint was placed on the defendant during the interrogation; (7) the officer's response to any questions asked by the defendant; (8) whether directions were given to the defendant during the interrogation; and (9) the defendant's verbal or nonverbal response to such directions.
Hankins, 201 P.3d at 1218-19 (applying these factors to conclude that defendant was not in custody when he made incriminating statements regarding a suspected murder and directed police to the burial site of the victim); see also People v. Thiret, 685 P.2d 193, 203 (Colo. 1984) (holding that courts must make custody determinations based on totality of the circumstances and establishing non-exclusive list of factors that courts may consider).
In People v. Thomas, 839 P.2d 1174, 1176-78 (Colo. 1992), we applied these factors to determine that a routine traffic stop had become a custodial situation entitling the defendant to Miranda protections. In that case, the officer stopped the defendant for driving with an altered temporary registration sticker. Id. at 1176. The officer issued a warning to the defendant and told him he was free to go. Id. The officer noticed, however, that the defendant appeared nervous, so he asked the defendant if he would respond to a few questions and would consent to being searched. Id. The defendant consented. Id. The officer then patted the defendant down and found a marijuana pipe in his pocket. Id. The officer told the defendant that he was being detained and that, at the very least, he would be given a ticket for possession of the pipe. Id. The officer also called for back-up to watch the defendant while a search of the car could be conducted. Id. The officer then interrogated the defendant, and the defendant eventually revealed that he had cocaine and marijuana in his vehicle. Id. At this point, the officer read the defendant his Miranda rights. Id.
We concluded that the encounter remained noncustodial until the officer searched the defendant. Id. at 1178. Before the search took place, the defendant was free to go, and he consented to being questioned and searched. The situation changed, however, after the officer found the marijuana pipe in the defendant's pocket. We concluded that "[o]nce the pot pipe was found . . . the defendant was in custody." Id. We arrived at this conclusion by relying on the fact that discovery of the pipe gave the officer grounds to detain the defendant; that the officer had called for back-up in order to search the defendant's vehicle; and that the officer testified that the defendant was no longer free to go after the search. Id.
We came to a similar conclusion in People v. Taylor, 41 P.3d 681, 683-85 (Colo. 2002). In that case, police stopped a vehicle in order to execute an arrest warrant for the driver. Id. at 683. The defendant was a passenger in the vehicle. Id. at 684. After one of the officers arrested the driver, another officer asked the defendant to exit the vehicle because they were going to search the vehicle incident to the driver's arrest. Id. This officer frisked the defendant and found four knives. Id. The officer then brought the defendant to the back of the vehicle and stood close to him, so that he was essentially "surrounded by the [vehicle] and each of the officers." Id. During the search of the vehicle, the officers found a black box containing drug paraphernalia and a white powdery substance. Id. All told, the officers detained the defendant for approximately nineteen minutes. Id. at 692.
We concluded that the defendant was in custody for Miranda purposes. Id. at 693. We relied particularly on several factors. First, the defendant was limited in his movements. Id. Second, he was detained for a "relatively lengthy" period. Id. And, third, the officers had grounds to arrest the defendant, giving him "`every reason to believe he would not be briefly detained and then released.'" Id. at 692-93 (quoting People v. Polander, 41 P.3d 698, 705 (Colo. 2001)).
The present case is similar to both Taylor and Thomas. As in those cases, what began as a "routine" encounter between police and the defendant quickly became a custodial situation. First, Null was not free to go during questioning. When he attempted to walk away, Henderson followed him and told him to return to the patrol car. Henderson testified that if Null had walked away from the van again, he would have "chased" him. Second, Null's freedom of movement was significantly limited during questioning. Although he was not handcuffed and the officers had not drawn their weapons, the officers stood only a few feet from Null. One officer stood to his left and the other stood to his right, while Null had his back against the patrol car. Like the defendant in Taylor, Null appears to have been "surrounded" by the patrol car and the officers on either side of him. Third, Null was held on the side of the road for at least fifteen minutes (while Henderson waited for Palmer to arrive) plus the amount of time it took for Henderson to conduct several roadside sobriety tests and call dispatch to check Null's license. This was a relatively lengthy detention. Finally, Null failed two sobriety tests and the preliminary breath test before the interrogation began. As such, the officers had grounds to arrest Null. These circumstances, when combined, establish that Null had objective reasons to believe that he was under arrest and would not be briefly detained and then released.
Considering the totality of the circumstances, we conclude that Null was in custody during questioning. This was not the brief, noncoercive, and routine traffic stop contemplated by the courts in Berkemer, 468 U.S. 420, 104 S.Ct. 3138, and Archuleta, 719 P.2d 1091. Rather, it was a relatively lengthy detention during which Null was surrounded, unable to leave, and facing probable arrest. It was a coercive and police-dominated atmosphere. A reasonable person in similar circumstances would have felt deprived of his freedom of action to the degree associated with a formal arrest. Therefore, we hold that Null was in custody for Miranda purposes during interrogation, and we affirm the trial court's order to suppress his incriminating statements.
IV. Colorado Express Consent Law
Next we review the trial court's determination that law enforcement violated Null's statutory rights under the express consent statute and consider whether this violation warranted suppression of Null's refusal to take a breath test and dismissal of the DUI charge. A driver, by virtue of operating a motor vehicle upon the streets or highways of Colorado, consents to the provisions of the express consent statute. § 42-4-1301.1, C.R.S. (2009). Under this statute, a police officer with probable cause to believe that a driver has committed an alcohol-related offense may require the driver to select and to complete either a blood test or a breath test. Id. Once a driver has selected a particular test, the driver must submit to that test within two hours or refuse testing altogether. Id. Drivers who refuse to be tested may have their licenses revoked for a year. § 42-4-1301.2(1).
The express consent statute creates mutual "rights and responsibilities" that apply to both drivers and law enforcement officers. Turbyne v. People, 151 P.3d 563, 568 (Colo. 2007). By requiring drivers to submit to testing, the statute enables law enforcement to gather evidence that may aid in the prosecution of drinking-and-driving offenses. Id. (citing Zahtila v. Motor Vehicle Div., Dep't of Revenue, 39 Colo.App. 8, 560 P.2d 847, 849 (1977)). But testing can also establish a driver's innocence. People v. Gillett, 629 P.2d 613, 619 (Colo. 1981) ("[T]esting can establish innocence as well as guilt"). The statute thus provides a driver with the right to receive the test that he or she chooses. § 42-4-1301.1(2)(a.5)(I-IV). Law enforcement is obligated to provide that test. Id.
The statute, however, contains an "extraordinary circumstances" exception to the rule that law enforcement must provide a driver with his or her chosen test. § 42-4-1301.1(2)(a.5)(I). The legislature added this exception to the statute in 2007, directly incorporating language from our decisions in Riley v. People, 104 P.3d 218, 222 (Colo. 2004), and Turbyne, 151 P.3d at 570-71. The express consent statute now provides that, once a driver has chosen a particular test, he or she has a right to receive that test unless "the officer determines there are extraordinary circumstances that prevent the completion of the test elected by the person within the two-hour time period." § 42-4-1301.1(2)(a.5)(I).
Subsection (A) provides a general definition of extraordinary circumstances. It states that "extraordinary circumstances means circumstances beyond the control of, and not created by, the law enforcement officer who requests and directs a person to take a blood or breath test . . . or the law enforcement authority with whom the officer is employed." § 42-4-1301.1(2)(a.5)(IV)(A). Subsection (B) then offers examples of extraordinary circumstances. It states that such circumstances shall include "weather-related delays, high call volumes affecting medical personnel, power outages, malfunctioning breath test equipment, and other circumstances that preclude timely collection and testing." § 42-4-1301.1(2)(a.5)(IV)(B). Finally, subsection (C) lists circumstances that shall not be considered extraordinary. It states that extraordinary circumstances shall not include "[i]nconvenience, a busy workload on the part of the law enforcement officer or law enforcement authority, minor delay that does not compromise the two-hour test period . . . or routine circumstances that are subject to the control of the law enforcement officer or law enforcement authority." § 42-4-1301.1(2)(a.5)(IV)(C).
Relying on subsection (A), the prosecution argues that the extraordinary circumstances exception applies in this case because medical personnel refused to perform the requested blood test and that this refusal was a circumstance outside law enforcement's control. The prosecution asserts that it is irrelevant why or how routinely medical personnel failed to respond to law enforcement's requests.
We decline to adopt the prosecution's interpretation of the statute. Instead, we hold that, where medical personnel do not respond to law enforcement's request for a blood test, the statute requires the prosecution to present evidence to explain why they were unable to respond. More precisely, the prosecution must show that extraordinary or "non-routine" circumstances prevented medical personnel from responding to law enforcement's requests. We adopt this interpretation because it represents a more harmonious and contextualized reading of the statute; it aligns with our prior case law concerning the extraordinary circumstances exception; and it serves the overall purpose of the statute by incentivizing law enforcement to alter its protocols for providing blood tests if those protocols fail under routine circumstances.
A. Statutory Construction
We review issues of statutory construction de novo. CLPF-Parkridge One, L.P. v. Harwell Invs., Inc., 105 P.3d 658, 661 (Colo. 2005). Our primary purpose is to effectuate the legislature's intent. People v. Cross, 127 P.3d 71, 73 (Colo. 2006). Therefore, we first consider the plain language of the statute. Id. If the language is ambiguous, we employ several canons of statutory interpretation. Id. We attempt to harmonize potentially conflicting provisions. Id. We also avoid interpretations that would render any words or phrases superfluous or would lead to illogical or absurd results. Id.
Turning to the first test, we conclude that the statutory language is ambiguous. Subsection (A) provides that the term "extraordinary circumstances" means circumstances outside the control of the law enforcement officer or authority. § 42-4-1301.1(2)(a.5)(IV)(A). Subsections (B) and (C) list examples of extraordinary circumstances, but these examples complicate rather than clarify the definition provided in subsection (A). See § 42-4-1301.1(2)(a.5)(IV)(B)-(C). Subsection (B) lists "weather-related delays" and "high call volumes affecting medical personnel" as examples of circumstances that would justify the failure to provide a driver with his or her chosen test. § 42-4-1301.1(2)(a.5)(IV)(B). These examples do not relate solely to circumstances within law enforcement's control. "[H]igh call volumes affecting medical personnel," by its very terms, relates only to circumstances affecting medical personnel. Similarly, "weather-related delays" comes from Turbyne, 151 P.3d at 571, in which we considered whether bad weather could excuse medical personnel's inability to respond to a requested blood test. If the statute were meant to capture all circumstances outside law enforcement's direct control, such specificity would be unnecessary. The statute would have simply stated that extraordinary circumstances shall include medical personnel's inability to respond to law enforcement's request, irrespective of the reason. By identifying certain acceptable reasons that medical personnel might not respond, however, subsection (B) implies that other reasons might not be acceptable and that evidence of those reasons must be presented.
Subsection (C) confirms this analysis. Subsection (C) indicates that "[i]nconvenience, a busy workload on the part of the law enforcement officer or law enforcement authority, [and] minor delay that does not compromise the two-hour test period" do not constitute extraordinary circumstances. § 42-4-1301.1(2)(a.5)(IV)(C). The example of a busy workload, by its terms, relates to law enforcement. The term "inconvenience," however, does not contain that same limiting language. In other words, the statute suggests that inconvenience in general — whether it is on the part of medical personnel or law enforcement — will not constitute an extraordinary circumstance justifying the failure to honor a driver's rights.
In sum, although subsection (A) might refer to law enforcement only, the examples listed in subsections (B) and (C) indicate that courts must also consider why medical personnel failed to provide a requested test and must determine whether that failure resulted from extraordinary circumstances — such as bad weather or high call volumes — or ordinary ones — such as inconvenience. This conflict between the subsections renders the statute ambiguous. By adopting an interpretation that considers why medical personnel refused to respond, we attempt to harmonize these provisions. More importantly, we avoid rendering superfluous much of the language in subsections (B) and (C).
This interpretation also aligns with our case law in Riley and Turbyne, in which we initially developed the extraordinary circumstances exception. In Riley, we stated that once a suspect has chosen a particular test, "the onus [is] on the officer to comply — barring extraordinary circumstances." 104 P.3d at 222. We defined extraordinary circumstances as "circumstances beyond the officer's control." Id. But we clarified that "inconvenience, a busy work load or delay do not suffice to comprise extraordinary circumstances sufficient to excuse compliance with the statute." Id. In that case, the sheriff's office asked the ambulance service to perform a blood test, but the ambulance service was unable to respond within the two-hour period. Id. at 219. There was no indication that the ambulance service's refusal to respond was within law enforcement's immediate control. Nevertheless, we declined to apply the extraordinary circumstances exception because the prosecution offered no evidence explaining why the ambulance service was unable to respond. Id. at 222.
Although the statute has been amended since we issued our opinions in Riley and Turbyne, because the statute incorporated language directly from those cases, their facts and reasoning remain relevant when interpreting the language of the statute.
We reiterated this approach in Turbyne. In that case, we chose to apply the extraordinary circumstances exception because the prosecution presented evidence showing that the ambulance service had good reasons — high call volumes combined with bad weather — for failing to perform a requested blood draw. Turbyne, 151 P.3d at 571. We distinguished our holding in Turbyne from Riley by noting that the extraordinary circumstance exception was "inapplicable in [ Riley] because the prosecution did not present any evidence of extraordinary circumstances that prevented the usual service provider of such blood draws from administering the test within the required two[-]hour period." Id. at 570 (emphasis added). Thus, the interpretation we adopt today aligns with our prior case law, which required the prosecution to present evidence that extraordinary circumstances prevented medical personnel from responding to law enforcement's requests.
Our approach also accounts for the requirement in subsection (C) that extraordinary circumstances shall not include " routine circumstances that are subject to the control of the . . . law enforcement authority." § 42-4-1301.1(2)(a.5)(IV)(C) (emphasis added). The statute does not define what should be considered "subject to the control of the law enforcement authority." Our case law, however, indicates that it should be interpreted to encompass the protocols that law enforcement establishes for providing drivers with their chosen tests. See Turbyne, 151 P.3d at 571 (applying the extraordinary circumstances exception in part because the police department had an "adequate protocol" in place for obtaining blood draws); Gillett, 629 P.2d at 619 (suppressing defendant's refusal to take a breath test because the police department failed to take "routine steps in order to implement the arrested driver's right to a blood test"). In other words, pursuant to our case law and the amended statute, law enforcement has control over the protocols that it develops to provide a driver with his or her chosen test. If those protocols fail routinely or under routine circumstances, then that failure cannot be excused as extraordinary. The prosecution has the burden to demonstrate extraordinary circumstances. It therefore must present evidence that non-routine circumstances prevented medical personnel from responding to law enforcement's request.
A contrary interpretation — one that allows the prosecution to present no evidence explaining why medical personnel refused to respond — would allow medical personnel to refuse routinely to respond to law enforcement's requests, without any explanation, yet that occurrence would be considered extraordinary under the statute. Drivers would then have no remedy for such violations, and law enforcement would have no incentive to develop more reliable protocols. Such an interpretation would undermine the legislative purpose of the statute, which is designed, in part, to provide drivers with the right to receive the test of their choice under ordinary circumstances. See Spahmer v. Gullette, 113 P.3d 158, 161-62 (Colo. 2005) (where the statutory language is unclear, courts must adopt the construction that best serves the purposes of the legislative scheme); Cross, 127 P.3d at 74 (courts must "consider the consequences of a particular construction and avoid constructions that produce illogical or absurd results").
Hence, we interpret the statute as requiring the prosecution to present evidence that extraordinary or "non-routine" circumstances prevented medical personnel from responding to law enforcement's request. This approach better effectuates the legislative purpose of the statute, follows our case law, and ensures that law enforcement adopts adequate protocols that are able to provide a driver with his or her chosen test under ordinary circumstances.
B. Application
Having interpreted the statute, we now apply it to the present case. The record indicates that Henderson twice asked for a medical team to come to the jail to perform a blood test but that the medical team refused to respond to these requests. Our prior case law and the amended statute require the prosecution to present evidence that extraordinary circumstances prevented medical personnel from responding to law enforcement's request. The prosecution, however, offered no evidence to explain why medical personnel refused to respond. We do not know whether they may have refused for legitimate reasons, such as high call volumes, or for illegitimate reasons, such as inconvenience. Nor has the prosecution provided any evidence indicating whether such refusals were themselves routine or unusual. In the absence of such evidence, we are unable to conclude that medical personnel's refusal to perform a blood test constituted extraordinary circumstances. The prosecution failed to carry its evidentiary burden. We shall not give it "a second bite at the apple." Burks v. United States, 437 U.S. 1, 17, 98 S.Ct. 2141, 57 L.Ed.2d 1 (1978). Therefore, we affirm the trial court's finding that no extraordinary circumstances justified the failure to honor Null's statutory right to receive a blood test.
C. Suppression of Evidence and Dismissal of the DUI Charge
We next consider whether the trial court acted appropriately by suppressing the evidence of Null's refusal to take a breath test and by dismissing the DUI charge. Although the statute adopted the extraordinary circumstances exception, which is a part of our jurisprudence on remedies, it otherwise remained silent on which remedies a court should employ when no extraordinary circumstances are found. Therefore, we look to our prior case law for guidance.
Courts retain discretion to fashion appropriate remedies for violations of the express consent statute. See Gillett, 629 P.2d at 619; Turbyne, 151 P.3d at 569. We review such determinations for an abuse of discretion. Turbyne, 151 P.3d at 569. "Sanctions must be tailored to remedy improper police conduct in the case; dismissal or suppression of evidence may be appropriate in some cases but not in others." Id. at 570.
In People v. Shinaut, 940 P.2d 380 (Colo. 1997), we found that dismissal and suppression were not warranted where law enforcement simply permitted a driver to change his mind and take a blood test after first requesting a breath test. Although we concluded that the officer erred by allowing the defendant to take an alternate test, we found that dismissal and suppression were inappropriate remedies because the violation occurred as a result of the driver's voluntary choice. Id. at 384. In other words, although law enforcement may have violated the statute, it did not deprive the driver of his right to receive his chosen test under that statute.
On the other hand, we have held suppression and dismissal to be appropriate where law enforcement failed to honor a driver's right to receive his or her chosen test. Gillett, 629 P.2d at 619; Riley, 104 P.3d at 222. Under such circumstances, a sanction is necessary so that the state may not violate a defendant's rights without consequence. As we have explained, dismissal and suppression "vindicate[] the proposition that the state may not `disregard the statutory rights of the drivers with impunity.'" Turbyne, 151 P.3d at 569 (quoting Gillett, 629 P.2d at 618).
In the present case, Null did not change his mind or request an alternate test. Rather, law enforcement violated his statutory rights by failing to provide him with the test that he chose. The prosecution failed to carry its burden to demonstrate that extraordinary circumstances justified that failure. As our case law indicates, law enforcement may not violate a defendant's statutory rights with impunity. Therefore, we hold that the trial court acted within its discretion when it suppressed the evidence of Null's refusal to take a breath test and dismissed the DUI charge against him.
V. Conclusion
In light of the above considerations, we affirm the trial court's decision to suppress Null's incriminating statements, to suppress his refusal to take a breath test, and to dismiss the DUI charge against him. We remand this case to that court for proceedings consistent with this opinion.
Justice HOBBS concurs in part and dissents in part.
Justice EID concurs in the result in part and dissents in part.