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ADVANCE SHEET HEADNOTE

April 17, 2017

2017 CO 26

No. 15SC340, Fitzgerald v. People—Searches and Seizures—Refusal to Submit to 

Blood-Alcohol Testing—Admission of Refusal Evidence.

The supreme court considers whether the prosecution’s use of a defendant’s 

refusal to consent to blood-alcohol testing as evidence of guilt at trial for a drunk

driving offense, in accordance with the terms of Colorado’s Expressed Consent Statute, 

section 42-4-1301.1, C.R.S. (2016), violates the Fourth Amendment. Because the use of 

such refusal evidence does not impermissibly burden a defendant’s right to be free from 

unreasonable searches, the supreme court concludes that the use of such refusal 

evidence does not violate the Fourth Amendment. The supreme court therefore affirms 

the judgment of the district court in this case.
The Supreme Court of the State of Colorado

2 East 14th Avenue • Denver, Colorado 80203

2017 CO 26

Supreme Court Case No. 15SC340

Certiorari to the District Court

Arapahoe County District Court Case No. 14CV31801

Petitioner:

Daniel Fitzgerald,

v.

Respondent:

The People of the State of Colorado.

Judgment Affirmed

en banc

April 17, 2017

Attorneys for Petitioner:

Richards Carrington, LLC

Christopher P. Carrington

Denver, Colorado

Foster Graham Milstein & Calisher, LLP

Chip G. Schoneberger

Denver, Colorado

Attorneys for Respondent:

George H. Brauchler, District Attorney, Eighteenth Judicial District

Jennifer Gilbert, Deputy District Attorney

 Centennial, Colorado

Attorneys for Amicus Curiae Colorado Attorney General:

Cynthia H. Coffman, Attorney General

Glenn E. Roper, Deputy Solicitor General

L. Andrew Cooper, Deputy Attorney General

Denver, Colorado
2

Attorneys for Amicus Curiae Colorado District Attorneys’ Council:

Colorado District Attorneys’ Council

Thomas R. Raynes, Executive Director

Denver, Colorado

First Judicial District Attorney’s Office

Donna Skinner Reed, Chief Appellate Deputy District Attorney

Golden, Colorado

Attorneys for Amicus Curiae Mothers Against Drunk Driving (MADD):

The Gold Law Firm, L.L.C.

Michael J. Rosenberg

Pamela B. Maass

Greenwood Village, Colorado

JUSTICE HOOD delivered the Opinion of the Court.

JUSTICE EID concurs in the judgment, and CHIEF JUSTICE RICE and JUSTICE 

COATS join in the concurrence in the judgment.
3

¶1 Colorado law provides that if a driver is suspected of driving under the influence 

of alcohol and refuses to take a test to determine the alcohol concentration of his blood 

or breath, then that refusal can be used as evidence against him at trial. Today, we are 

asked to decide whether the use of this “refusal evidence” violates a defendant’s Fourth 

Amendment right to be free from unreasonable searches. We conclude it does not.

I. Facts and Procedural History

¶2 A little after midnight on June 30, 2013, Detective Billy Todis saw the defendant, 

Daniel Fitzgerald, driving erratically with a headlight out, so he pulled him over and 

asked him to produce his driver’s license, registration, and proof of insurance. While 

Fitzgerald struggled to find these documents, Detective Todis smelled alcohol in the car 

and noticed Fitzgerald had watery eyes. He asked Fitzgerald whether he had been 

drinking. Fitzgerald said he had consumed one beer. The detective asked Fitzgerald to 

perform voluntary roadside sobriety maneuvers. Fitzgerald declined. 

¶3 After deciding to place Fitzgerald under arrest for driving under the influence 

(“DUI”), Detective Todis gave Fitzgerald an expressed consent advisement. According 

to the detective’s testimony at trial, he first told Fitzgerald at the scene of the stop: “[B]y 

driving in the State of Colorado you automatically give your express consent to give a 

chemical test of your blood or breath when contacted by a peace officer for the 

investigation of a DUI.” Later, at the police station, Detective Todis provided Fitzgerald

with a written advisement form to the same effect as the oral advisement. Fitzgerald

refused to take a chemical test of his blood or breath.
4

¶4 Before trial, Fitzgerald filed a motion in limine to prevent the prosecution from 

introducing evidence or commentary regarding his refusal to submit to a chemical test. 

He argued that introducing such evidence or commentary would penalize him for 

refusing to waive his Fourth Amendment right to be free from warrantless searches. 

The court denied Fitzgerald’s motion. 

¶5 At trial, Detective Todis testified regarding Fitzgerald’s refusal to submit to a

chemical test, and the prosecutor argued that Fitzgerald’s refusal showed consciousness

of guilt. The jury convicted Fitzgerald of driving while ability impaired (“DWAI”), a 

lesser-included offense of DUI.

¶6 Fitzgerald appealed his conviction to the district court. The district court 

affirmed, reasoning that under Colorado’s expressed consent law, once Detective Todis

had probable cause to believe Fitzgerald was driving under the influence, he had 

authority to request that Fitzgerald complete a chemical test of his blood or breath. 

Although Fitzgerald was free to decline that request, that right to refuse was statutory, 

not constitutional. The district court highlighted that the statute specifically authorizes

use of a driver’s refusal to consent as evidence of guilt. It therefore held that the trial 

court did not violate Fitzgerald’s constitutional rights by admitting evidence of his 

refusal.

¶7 We granted Fitzgerald’s petition for a writ of certiorari.1

 

1 We granted certiorari to review the following reframed issue: “Whether the 

prosecution violated petitioner’s rights under the Fourth Amendment to the United 

States Constitution by offering at trial—as evidence of guilt—petitioner’s election not to 

consent to a warrantless, chemical search of his body.”
5

II. Standard of Review

¶8 The district court’s ruling in this case was based on an interpretation of 

Colorado’s Expressed Consent Statute and Fourth Amendment case law. Fitzgerald 

challenges the court’s legal conclusion only; the facts of this case are not in dispute. 

Thus, we are presented with a question of law, which we review de novo. E-470 Pub. 

Highway Auth. v. 455 Co., 3 P.3d 18, 22 (Colo. 2000).

III. Analysis

¶9 We begin by setting forth the background principles necessary for resolving this 

case: first, we explain Colorado’s Expressed Consent Statute; second, we examine the 

Fourth Amendment; and third, we discuss prohibitions against penalizing the exercise 

of constitutional rights. We then address whether the trial court erred in admitting

refusal evidence in this case, and we explain why recent decisions from the United 

States Supreme Court do not alter our analysis. We ultimately conclude that 

introducing evidence of Fitzgerald’s refusal to consent to a blood or breath test did not 

impermissibly burden his Fourth Amendment right, and we therefore affirm the district 

court’s judgment. 

A. Colorado’s Expressed Consent Statute

¶10 Driving in Colorado is a statutory privilege, not a right. Colo. Dep’t of 

Revenue v. Garner, 66 P.3d 106, 110 (Colo. 2003). In exchange for exercising that 

privilege, Colorado’s Expressed Consent Statute provides: 

A person who drives a motor vehicle upon the streets and highways and 

elsewhere throughout this state shall be required to take and complete, 

and to cooperate in the taking and completing of, any test or tests of the 
6

person’s breath or blood for the purpose of determining the alcoholic 

content of the person’s blood or breath when so requested and directed by 

a law enforcement officer having probable cause to believe that the person 

was driving a motor vehicle in violation of the prohibitions against 

DUI . . . [or] DWAI . . . .

§ 42-4-1301.1(2)(a)(I), C.R.S. (2016). By driving in the state, a motorist consents to testing 

in accordance with this provision. § 42-4-1301.1(1), C.R.S. (2016) (“Any person who 

drives any motor vehicle . . . throughout this state shall be deemed to have expressed 

such person’s consent to the provisions of this section.”).

¶11 The statutory scheme spells out the procedures to be followed if a driver 

nevertheless refuses to take a test to determine blood-alcohol content (“BAC”). First, 

the individual’s driver’s license will be revoked for at least one year. § 42-2-126(3)(c)(I), 

C.R.S. (2016). Second, if the driver stands trial for DUI or DWAI, the “refusal to take or 

to complete . . . any test or tests shall be admissible into evidence at the trial, and a 

person may not claim the privilege against self-incrimination with regard to admission 

of [refusal evidence].” § 42-4-1301(6)(d), C.R.S. (2016). These provisions do not create a 

statutory right to revoke consent.

¶12 Fitzgerald contends that the trial court’s order admitting such refusal evidence 

violated his Fourth Amendment right to be free from an unreasonable governmental

search.

B. The Fourth Amendment to the United States Constitution

¶13 The Fourth Amendment to the United States Constitution provides that the 

“right of the people to be secure in their persons, houses, papers, and effects, against 

unreasonable searches and seizures, shall not be violated.” U.S. Const. amend. IV; see 
7

also Colo. Const. art. II, § 7; Eddie’s Leaf Spring Shop & Towing LLC v. Colo. Pub. Utils. 

Comm’n, 218 P.3d 326, 333 (Colo. 2009) (“The Colorado and U.S. Constitutions are 

generally coextensive with regard to warrantless searches and seizures.”). Both blood 

draws and breath tests implicate concerns about invasions of bodily integrity and are 

deemed searches under the Fourth Amendment. Skinner v. Ry. Labor Execs.’ Ass’n, 

489 U.S. 602, 616–17 (1989); see also Birchfield v. North Dakota, 136 S. Ct. 2160, 2173 

(2016) (“[O]ur cases establish that the taking of a blood sample or the administration of 

a breath test is a search.”).

¶14 On the face of the Amendment, Fitzgerald loses. The Fourth Amendment’s 

explicit prohibition is against an unreasonable search or seizure, neither of which 

occurred in this case. Fitzgerald acknowledges as much. 

¶15 Nevertheless, Fitzgerald asserts a Fourth Amendment violation, based on the 

principle that it is unlawful to penalize the exercise of a constitutional privilege.

C. Prohibition Against Penalizing the Exercise of a 

Constitutional Privilege

¶16 Fitzgerald argues that because the Fourth Amendment grants an individual the 

right to be free from unreasonable searches, and a blood or breath test is a Fourth 

Amendment search, introducing a defendant’s refusal to consent to a blood or breath 

test as evidence of guilt amounts to an impermissible penalty on the exercise of his 

Fourth Amendment right.

¶17 Fitzgerald’s argument is rooted in Griffin v. California, 380 U.S. 609 (1965). In 

Griffin, the Supreme Court explained that when a criminal defendant fails to testify at 
8

trial, commentary suggesting the jury should draw an inference of guilt from the 

defendant’s silence is “a penalty imposed by courts for exercising a constitutional 

privilege” that “cuts down on the privilege by making its assertion costly.” Id. at 614. 

The Court held that the Fifth Amendment therefore forbids the prosecution from 

commenting on a defendant’s refusal to testify and forbids the trial court from 

instructing the jury that refusal is evidence of the defendant’s guilt. Id. at 615.

¶18 We have extended the Supreme Court’s reasoning in Griffin to prohibit imposing

“penalties” on asserting other constitutional rights. For example, in Apodaca v. People, 

712 P.2d 467, 473 (Colo. 1985), this court held that the trial court impermissibly 

burdened the defendant’s due-process right to testify in his own defense when it

refused to decide before he testified whether the prosecution could use his prior 

convictions to impeach his credibility. We determined that this deprived the defendant 

of “the meaningful opportunity to make the type of informed decision contemplated by 

the fundamental nature of the right to testify in one’s own defense.” Id.

¶19 But in the context of DUI refusal evidence, the Supreme Court has sharply 

curtailed the use of the Griffin penalty analysis. In South Dakota v. Neville, 459 U.S. 

553, 554, 564 (1983), the Supreme Court considered whether admitting into evidence a 

defendant’s refusal to submit to a blood-alcohol test violated his Fifth Amendment right 

against self-incrimination or his Fourteenth Amendment right to due process. 

Seventeen years before Neville, in Schmerber v. California, 384 U.S. 757, 764–65 (1966), 

the Supreme Court held that admitting the results of a compelled blood test at a 

defendant’s DUI trial did not violate the Fifth Amendment because the evidence was 
9

physical rather than testimonial. The Schmerber Court expressly reserved the question 

of whether use of refusal evidence violated the privilege against self-incrimination, but 

it noted that “general Fifth Amendment principles, rather than the particular holding of 

Griffin, would be applicable.” Id. at 765 n.9. In Neville, the Court examined those 

principles and explained that the Fifth Amendment is limited to prohibiting compulsion 

or coercion, a requirement derived from the language of the Constitution itself. 459 U.S.

at 562. Because the defendant was not compelled to refuse the blood-alcohol test but 

rather was given a choice between taking the test and refusing, the “values behind the 

Fifth Amendment [were] not hindered.” Id. at 562–63. Ultimately, the Court held that 

“a refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is 

not an act coerced by the officer, and thus is not protected by the privilege against selfincrimination.” Id. at 564.

¶20 In a footnote, the Neville Court also observed: “Unlike the defendant’s situation 

in Griffin, a person suspected of drunk driving has no constitutional right to refuse to 

take a blood-alcohol test. The specific rule of Griffin is thus inapplicable.” Id. at 

560 n.10. The Court explained that the right to refuse a blood or breath test is 

distinguishable from other rights because it is not a constitutional right but rather is 

“simply a matter of grace bestowed by the [state] legislature.” Id. at 565. The Court 

concluded that the use of the refusal evidence “comported with the fundamental 

fairness required by Due Process.” Id. at 566.

¶21 We adopted Neville’s reasoning in Cox v. People, 735 P.2d 153, 156–57 (Colo. 

1987), when we held that admission of refusal evidence at a defendant’s DUI trial does 
10

not violate the Colorado Constitution’s guarantees of freedom from self-incrimination 

and the right to due process. In Cox, we also considered whether refusal evidence is

irrelevant or unduly prejudicial. Id. at 157. We reasoned that refusal is conduct that 

potentially shows a consciousness of guilt; therefore, refusal evidence is not per se 

inadmissible under CRE 401 and 403. See id. at 158–59. 

¶22 While none of this bodes terribly well for Fitzgerald, he sees a glimmer of hope 

for his impermissible-penalty argument in two more recent Supreme Court cases

analyzing requests for chemical testing under the Fourth Amendment: Missouri v. 

McNeely, 133 S. Ct. 1552 (2013), and Birchfield v. North Dakota, 136 S. Ct. 2160 (2016). 

¶23 In McNeely, the Supreme Court held that “the natural dissipation of alcohol in 

the bloodstream does not constitute an exigency in every case sufficient to justify 

conducting a blood test without a warrant.” 133 S. Ct. at 1568. Fitzgerald 

acknowledges that McNeely did not concern the constitutionality of using a defendant’s 

refusal against him at trial. Still, McNeely states that Fourth Amendment constraints 

apply to DUI investigations just as they would to any other crime. See id. at 1558 

(explaining that blood draw is search subject to Fourth Amendment). Thus, Fitzgerald 

reasons that he remained at liberty to revoke his statutory expressed consent and assert 

his constitutional right to be free from an unreasonable warrantless search. 

¶24 Fitzgerald’s argument under McNeely falls short for at least four reasons. First, 

at its core, McNeely merely reiterated that there is no per se exigency exception for 

warrantless blood draws; it did not address whether a driver’s refusal to submit to a 

blood or breath test can be used against him in court. Second, McNeely said nothing 
11

about the impermissible-penalty argument Fitzgerald advances here. Third, the 

McNeely plurality discussed laws such as Colorado’s Expressed Consent Statute with 

approval, characterizing them as “legal tools to enforce [states’] drunk-driving laws and 

to secure BAC evidence without undertaking warrantless nonconsensual blood draws.” 

Id. at 1566 (plurality opinion). The plurality specifically noted that most states “allow 

the motorist’s refusal to take a BAC test to be used as evidence against him in a 

subsequent criminal prosecution.” Id. Fourth, Fitzgerald’s argument implies a 

constitutional right to refuse testing. As we explain in our decision in People v. Hyde, 

2017 CO 24, ¶ 27, __ P.3d __, issued today, there is no such constitutional right. 

¶25 Fitzgerald’s reliance on Birchfield is similarly unavailing. In Birchfield, the 

Supreme Court consolidated three cases to decide “whether motorists lawfully arrested 

for drunk driving may be convicted of a crime or otherwise penalized for refusing to 

take a warrantless test measuring the alcohol in their bloodstream.” 136 S. Ct. at 2172. 

After considering the impact of blood and breath tests on individual privacy interests, 

id. at 2176–78, the Court concluded that “a breath test, but not a blood test, may be 

administered as a [warrantless] search incident to a lawful arrest for drunk driving,” id.

at 2185. The Court distinguished between the two types of tests because a breath test is 

significantly less intrusive and generally sufficient to meet state law enforcement needs. 

Id. Therefore, applying its conclusion to the cases before it, the Court overturned the 

conviction of the petitioner who was criminally prosecuted for refusing a warrantless 

blood draw but affirmed the conviction of the petitioner who was criminally prosecuted 

for refusing a warrantless breath test. Id. at 2186. But Birchfield is distinguishable from 
12

the case we decide today, because Birchfield concerned the constitutionality of implied 

consent laws that criminalize a driver’s refusal to undergo chemical testing. Unlike 

those laws, Colorado’s Expressed Consent Statute merely allows a driver’s refusal to 

submit to testing to be entered into evidence if the driver is prosecuted for DUI or 

DWAI. Colorado’s law does not criminalize a driver’s refusal to consent to a search. 

The Supreme Court noted this distinction in Birchfield, explaining: “Our prior opinions 

have referred approvingly to the general concept of implied-consent laws that impose 

civil penalties and evidentiary consequences on motorists who refuse to comply. 

Petitioners do not question the constitutionality of those laws, and nothing we say here 

should be read to cast doubt on them.” Id. at 2185 (citations omitted).

¶26 In short, when there has been no search, the Supreme Court has all but said that 

anything short of criminalizing refusal does not impermissibly burden or penalize a 

defendant’s Fourth Amendment right to be free from an unreasonable warrantless 

search. We take that short leap today and conclude that introducing evidence of 

Fitzgerald’s refusal to consent to a blood or breath test to determine his BAC did not 

impermissibly burden his Fourth Amendment right. 

IV. Conclusion

¶27 The prosecution’s use of a defendant’s refusal to consent to a blood or breath test 

as evidence of guilt, in accordance with the terms of Colorado’s Expressed Consent 

Statute, does not violate the Fourth Amendment. Accordingly, we affirm the judgment

of the district court in this case.
13

JUSTICE EID concurs in the judgment, and CHIEF JUSTICE RICE and JUSTICE 

COATS join in the concurrence in the judgment.
1

JUSTICE EID, concurring in the judgment.

¶28 For the reasons I set forth in People v. Hyde, 2017 CO 24, __ P.3d __, I concur 

only in the judgment reached by the majority.

I am authorized to state that CHIEF JUSTICE RICE and JUSTICE COATS join in 

this concurrence in the judgment.