Colorado justices agree DUI suspects can change mind after initially refusing chemical test

The Colorado Supreme Court agreed on Monday that drunk driving suspects can change their mind after initially refusing to take a blood or breath test, meaning an Arapahoe County judge wrongly blocked jurors from hearing about the defendant's ultimate consent to take a test after all.

The 6-1 decision technically means defendant Glen Gary Montoya is entitled to a new trial. Practically, however, he will not receive one because Montoya died weeks after the Supreme Court heard oral arguments in December.

Although the public defender's office asked the court to vacate his conviction outright or, alternatively, dismiss the appeal, the justices opted to issue a decision to "provide greater clarity on this broader legal issue," wrote Justice William W. Hood III in the April 15 opinion.

Montoya's case centered on Colorado's "expressed consent" law, in which motorists have automatically consented to take a blood or breath test if an officer has probable cause to suspect them of impaired driving. If drivers refuse to test within two hours of being stopped, the refusal can be used against them at trial and is grounds for revoking their driver license.

Montoya rear-ended a vehicle and the responding officer believed him to be drunk. After hearing about the expressed consent law, Montoya agreed to take a blood test for his alcohol level.

At the detox facility, Montoya wavered about whether to take the test, before saying, "I don't think I'm gonna."

Approximately 90 minutes after the accident, the officer recorded Montoya on his body-worn camera saying he refused the blood test, and that was what Montoya's jury saw. Jurors convicted him of driving under the influence.

What they did not know, however, was that Montoya changed his mind again shortly after the refusal, and within the two-hour testing window. Then-District Court Judge Phillip L. Douglass allowed prosecutors to redact that portion of the body-worn camera footage, believing once Montoya turned down the blood draw, "he no longer has the right to take a test. That is no longer an option."

Douglass also speculated that Montoya, who had prior drunk driving offenses, "may have been counseled to refuse and then say that 'I will do it' to make himself look good."

The Court of Appeals reversed Montoya's felony DUI conviction. The panel synthesized multiple elements of the expressed consent law to conclude that drivers are not allowed to change what type of test they choose, but changing their mind on whether to cooperate is still possible. Looking to cases that dealt with driver license revocations, the panel determined a refusal to take a test within the two-hour window depends on whether the test can still be administered in time.

The panel also deemed it wrong to shield the jury from Montoya's final statement indicating he would cooperate after all.

"Redacting the video allowed the prosecution to stop it at the refusal," wrote Judge Sueanna P. Johnson, "and relieved it of its responsibility to present evidence as to why Montoya's later change of mind still nonetheless constituted refusal."

The prosecution appealed to the Supreme Court, where both sides believed the Court of Appeals should not have looked to the process for administratively revoking driver licenses to determine whether evidence of a driver's refusal should be heard at a criminal trial. After Montoya died in January, the government pointed to the appellate panel's error as a reason to stay the course and issue a ruling.

The Supreme Court concluded state law does not prohibit drivers from changing their mind after initially refusing a test, and the standards for driver license revocations do not govern evidence in criminal cases. Beyond that, the court's majority agreed with the Court of Appeals that it was "potentially misleading" for Montoya's jury to be in the dark about his ultimate consent to a blood test.

"The excluded portion of Montoya’s statement could have cast doubt as to whether he ultimately refused testing, which in turn could have undermined the notion that he exhibited consciousness of guilt. This context is particularly important here because the remaining evidence against Montoya wasn’t overwhelming," Hood wrote.

He added that prosecutors focused on Montoya's refusal to take a blood test, but the video actually showed Montoya "coherently" talking about the benefits and pitfalls of submitting to a test, with no conclusive sign of intoxication.

Chief Justice Brian D. Boatright dissented. Although he agreed with large portions of the majority's reasoning, he believed it was unnecessary for jurors to hear about Montoya's consent due to the "changed circumstances" after his initial refusal. Specifically, Montoya reversed course after the nurse who was there to draw his blood had already left.

"To be sure, I would not be dissenting if Montoya had reversed his position sooner, so the nurse was still present during the subsequent statement," Boatright wrote. "However, ten to fifteen minutes is not a 'short time' in the context of a break in conversation, and the nurse’s departure should be given substantial consequence."

The Supreme Court agreed with the Court of Appeals' reversal of Montoya's drunk driving conviction and ordered a new trial. Hood added the caveat that due to Montoya's death, such a trial "is impossible."

The case is People v. Montoya.