Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
Christopher Tarr drank between one and three pitchers of beer at a bar before driving home with a friend. Traffic camera footage showed the car turning left through a red light, skidding through an intersection and hitting a man who later died from his injuries.
Tarr was transported to a hospital after the accident where a blood test found he had a blood alcohol level between 0.30 and 0.32 — roughly four times the legal limit. Tarr denied drinking to responding officers but admitted to speeding.
A jury convicted Tarr with DUI vehicular homicide, reckless driving vehicular homicide, DUI, reckless driving, second-degree murder and attempted second-degree murder. Several of the convictions were merged and Tarr was sentenced to a total of 85 years in the custody of the Department of Corrections.
On appeal, Tarr argued that the lower court erred by admitting BAC evidence collected from the blood test which he claimed was collected during an illegal search. He also brought three appeals against his convictions for second-degree murder and attempted second-degree murder. First, he argued the lower court erred by allowing charges for first-degree murder since the Colorado General Assembly intended vehicular homicide to only apply if a person causes a death while operating a car. Second, he argued there is no reasonable distinction between conduct that can lead to a second-degree murder charge and a DUI vehicular homicide. Finally, he argued the prosecution didn’t present sufficient evidence to support the charges. The Colorado Court of Appeals disagreed with all arguments.
In the hospital, Tarr didn’t consent to have his blood drawn. Under state law, by driving in the state every driver has consented to have blood drawn if there is probable cause to suspect they are under the influence of alcohol. The trial court rejected a motion to suppress the blood draw evidence.
Tarr’s appeal over the blood draw evidence implicated two issues: if a state’s expressed consent statute can satisfy Fourth Amendment’s warrant requirement for a BAC test and, if so, if a driver has the constitutional right to revoke consent.
In 2017, the Colorado Supreme Court addressed both issues in People v. Hyde, but the Court of Appeals considered for the first time if the decision’s broad language applies to conscious drivers who refuse a blood draw. Tarr urged the Court of Appeals to rule that Hyde should only apply to unconscious drivers and not cases, like his, where he withdrew consent to the test.
While federal case law and other states have taken different approaches to express consent, the Colorado Court of Appeals held that it was bound by the “expansive language” of Hyde “to hold that Tarr consented to the blood test by virtue of the expressed consent statute and, moreover, that he had no constitutional right to refuse the test because officers had probable cause to believe he had committed vehicular homicide.” The court took a plain language reading of the consent statute and ruled that the General Assembly didn’t intend to give drivers the grace to withdraw consent.
Rejecting Tarr’s other appeals, the court upheld his conviction and sentence.
In a special concurrence, Judge David Furman urged the Colorado Supreme Court to reconsider its ruling in Hyde in light of the U.S. Supreme Court’s 2019 decision in Mitchell v. Wisconsin. The later Supreme Court decision came from similar circumstances, but as Furman wrote, the court appeared “to be moving away from implied consent created by statute and back to more traditional Fourth Amendment principles — those being the warrant requirement and the established exceptions to the warrant requirement.” In light of Mitchell, Furman urged the state’s high court to revisit its decision.
Austin O’Day pleaded guilty in Weld County Court to vehicular eluding and criminal mischief in exchange for sentences for two-year deferred judgment and sentence and supervised probation.
Nine months later, the probation department asked the court to revoke his deferred judgment and probation after he allegedly failed to abide by state law.
O’Day was the only witness called by the probation department at the revocation hearing. Despite a Fifth Amendment objection from O’Day’s counsel, the prosecutor asked him if he was charged with any new offenses while on probation to which O’Day replied he was. He also answered that he pleaded guilty in a criminal case in Adams County and that he knew doing so could impact his Weld County felony probation case.
The district court revoked O’Day’s deferred judgment and sentence and re-sentenced him to 18 months in community corrections to run after his Adams County sentence.
On appeal, O’Day argued the district court erred by compelling him to provide incriminating testimony during the hearing.
Drawing from the U.S. Supreme Court’s 1984 decision in Minnesota v. Murphy, the Colorado Court of Appeals held O’Day’s privilege against self-incrimination wasn’t implicated in questions about if he violated his probation.
While O’Day argued that his answers were “obviously” incriminating for the revocation hearing, the court disagreed. Since a revocation hearing isn’t part of a criminal prosecution, answering questions didn’t impact O’Day’s guilt or innocence, the court held, and since his answers couldn’t be used against him in any pending criminal case, his answers didn’t subject him to any threat of future prosecution.
The Colorado Court of Appeals upheld the judgment.
Doris McCauley v. Colorado Department of Revenue
In 2014, Doris McCauley resigned from her job at the Colorado Division of Motor Vehicles. She found another job, but after researching the new job and deciding the benefits were worse than at the DMV, she tried to withdraw her resignation.
Based on an outdated rule mentioned in her employee handbook, McCauley believed she had two business days to withdraw her voluntary resignation. However, the state rule about if and how employees are allowed to withdraw resignations was repealed a year earlier. The DMV declined her resignation withdrawal, which McCauley appealed to an administrative law judge.
The ALJ ruled that the previous rule didn’t create a right to withdraw notice, but the Colorado Constitution established a limited right of withdrawal. Agreeing with that interpretation, a different ALJ ruled in favor of McCauley holding that “in the absence of a rule, an employee may withdraw a resignation any time before it becomes effective.”
The ALJ also held that by not accepting the withdrawal, the DMV had violated internal rules that required it to make good faith efforts to communicate with employees before firing them. The ALJ awarded McCauley attorneys fees, back pay, lost benefits and reinstated her job.
The DMV appealed the case to the State Personnel Board which agreed with the ALJ’s legal determination but reversed the award of attorney fees. McCauley appealed the reversed fees, and the board remanded the case to the ALJ to determine the exact amount of damages awarded, which it later accepted.
The Colorado Court of Appeals agreed with the reversal of attorney fees awards but disagreed that the DMV’s refusal to accept the withdrawn resignation went against state law.
While there wasn’t a rule in place at the time about withdrawing resignations, the Colorado Court of Appeals found the ALJ erred in finding a constitutional right to withdraw. The DMV wasn’t required to accept McCauley’s withdrawn resignation, the court found, and “there was no factual basis” for the ALJ to believe McCauley was fired. The court agreed that McCauley was incorrectly awarded attorneys fees.
The Colorado Court of Appeals affirmed the decision in part, reversed it in part and remanded the case to the State Personnel Board and ALJ to amend the reinstatement and award.
Weld County Board of County Commissioners v. Jill Ryan
The Colorado General Assembly passed SB 19-181 in 2019 which required the Air Quality Control Commission within the Colorado Department of Public Health and Environment to adopt new rules and revise existing rules to minimize certain air pollution.
The commission proposed additional requirements for oil and gas companies and opened the new rules for input from community groups, industry organizations and local governments. Weld County, the state’s largest oil and gas producing county, took an active role in the rulemaking process. Expert witnesses testified that 35% of oil and gas wells in Weld County could be shut down due to increased operating costs to comply with the new rules.
The AQCC adopted most of the originally proposed rules which went into effect Feb. 14, 2020.
Weld County filed a complaint in district court against CDPHE, its executive director and the AQCC, making two claims that they broke the State Administrative Procedure Act and the Colorado Air Pollution Prevention and Control Act. First, Weld county alleged that a community group was allowed to submit a late-amended proposal about the rules but other rule-making parties weren’t given enough time to properly respond. Second, it alleged that by not prioritizing Weld County’s concerns about how the rules would impact its economy and land use powers, the commission didn’t comply with Colorado Revised Statutes 25-7- 105(16). Weld County also asked for declaratory relief over how the statute impacted the rulemaking.
The CDPHE defendants moved to dismiss the complaint for a lack of jurisdiction, arguing that as an agency subordinate to the AQCC, Weld County lacked standing to challenge its rulemaking under the Colorado Supreme Court’s 1976 decision in Martin v. District Court in and for the County of Montrose. CDPHE also argued that Weld County didn’t have an injury-in-fact to a legally protected interest needed to establish standing.
Under Martin, an agency lacks standing when it is subordinate to the agency whose decision it would like to review and no statutory provision gives it a right to seek the judicial review.
The district court agreed with both arguments and dismissed the complaint. Weld County appealed the dismissal, arguing that counties are not subordinate to the commission in the context of air quality control and, even if it is, the Colorado Air Act expressly permits Weld County to seek judicial review.
The Colorado Court of Appeals disagreed. It ruled that the mere existence of complementary powers between Weld County and the AQCC around air quality doesn’t prevent a subordinate relationship and while the Colorado Air Act grants these powers, it allows counties to do so only under the regulations of the commission. The court didn’t find any provision that expressly gives Weld County a right to judicial review.
The appeals court affirmed the lower court’s decision to dismiss the challenge under Martin.