Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Glen Montoya was arrested on suspicion of driving under the influence. He agreed to submit to a blood test, but later refused to allow a nurse to draw his blood. After the nurse left, he claimed to have changed his mind and asked to take the test. No draw occurred. At trial, the prosecution wanted to use Montoya’s refusal to prove consciousness of guilt.
A division of the Colorado Court of Appeals concluded if a criminal court makes a pretrial determination a driver refused testing, that determination must be based on the law of refusal that has developed in the administrative, license-revocation context. The division also concluded “if the prosecutor seeks to use as evidence a defendant’s written or recorded statement refusing a chemical test, but the defendant disputes refusal, the entire circumstances surrounding the defendant’s test-taking must be submitted for the jury’s consideration.”
The Colorado Supreme Court reversed in part and affirmed in part. Contrary to the division, it held criminal DUI trials are governed by the same evidentiary rules as any other criminal trial. Criminal courts aren’t bound by the law of refusal that governs administrative, license-revocation hearings. They should instead consider whether the proffered evidence of refusal or recantation is admissible under the Colorado Rules of Evidence.
But the high court did agree with the division that under Rule 106, the jurors determining Montoya’s guilt or innocence should have been permitted to consider both his initial refusal and his subsequent recantation of that refusal. The court noted its conclusion in this respect is predicated on the district court’s mistakes of law and shouldn’t be construed to limit a trial court’s broad discretion when properly exercised under Rule 106.