You may have read in Tuesday's paper that law enforcement officials in Colorado who have probable cause to suspect a motorist is under the influence of drugs or alcohol can ask for both a breath test and a blood draw.
This clears up a question of the law. Until a three-judge Colorado Court of Appeals panel issued a ruling last week, law enforcement routinely asked motorists suspected of DUI if they wanted a breath test or a blood test, as if the statute prohibited officers from requesting both.
As the Sentinel's Charles Ashby reported, "The statute doesn't say an officer can only do one or the other," Judge Robert Hawthorne wrote in the opinion, which was joined by judges Ted Tow and Jose Marquez. "We disagree with defendant's argument that because there's no express statutory provision allowing an officer to do both, an officer can't do both. We conclude that if the General Assembly had intended to prohibit what the officer did in this case, it would have included language in the Expressed Consent Statute specifying that an officer can proceed (with one) but not both."
It's an important clarification with an immediate impact. Let's say Stoney has just smoked a bowl of legal marijuana and gets pulled over for erratic driving. Given a choice, Stoney would gladly blow into a breathalyzer knowing it won't register a blood-alcohol content. Now the appeals court has made clear that officers can ask to take a blood test, too.
In that regard, the law makes sense, especially in a state like Colorado that has legalized marijuana. But we still find it deeply discomforting how our Fourth Amendment right not to be subjected to unreasonable search and seizure has been slowly eroded before our eyes.
The Supreme Court has recognized this as a ticklish matter. In 2016, it struck down a North Dakota law that imposed criminal penalties on suspected drunk drivers who refused to submit to a warrantless blood test. Colorado doesn't impose criminal penalties for refusing to submit to a warrantless search, but refusal leads to immediate, and virtually automatic, license revocation.
That's an extreme sanction for invoking a constitutional right.
It passes constitutional muster because the "punishment" is discharged under the administrative state rather than the criminal justice system.
Or put another way, there's no constitutional basis for punishing someone for refusing a breath or blood test with jail time. But driving is a privilege that can be revoked under a system untethered by a constitutional threshold for personal liberty.
Consider that the Supreme Court has said it's OK to require a motorist to take a warrantless breath test incident to a drunk driving arrest, but blood tests are a different matter under the same circumstances.
"The impact of breath tests on privacy is slight, and the need for BAC testing is great," Justice Samuel Alito wrote in the court's majority opinion. But "we reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test." The court found "no satisfactory justification for demanding the more intrusive alternative without a warrant."
The point here is that the Fourth Amendment, like the rest of the Bill of Rights, gets parsed and pinched as the technology evolves to allow greater government intrusion into our lives. Yes, the government has a compelling interest in keeping our streets safe from drunk drivers. But at what cost to individual liberty?