People v. Montoya

516 P.3d 970

2022 COA 55 M

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Glen Gary MONTOYA, Defendant-Appellant.

Court of Appeals No. 18CA1409

Colorado Court of Appeals, Division VI.

Announced May 26, 2022

As Modified on Denial of Rehearing July 14, 2022

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Mackenzie Shields, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE JOHNSON

¶ 1 We are presented with two issues of first impression in the context of the Colorado Expressed Consent Statute, section 42-4-1301.1(2)(a), C.R.S. 2021: First, when the district court is asked to make a pretrial evidentiary ruling on whether a defendant refused to take a blood test, what constitutes refusal in the context of a driving under the influence (DUI) prosecution? And second, what evidence of refusal should be presented to a jury when the prosecution seeks to use a defendant's statement but the defendant disputes refusal?

¶ 2 On the first issue, we conclude that if the district court makes a pretrial finding of refusal for evidentiary purposes, the ruling must be based on the law of refusal that has developed in the context of administrative proceedings revoking an individual's driver's license due to refusal to take a chemical test. As to the second issue, 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.

¶ 3 In this case, defendant, Glen Gary Montoya (Montoya), was convicted of felony DUI as a fourth or subsequent offense. On appeal, Montoya contends that the district court erred by (1) violating his right to have a jury decide all the elements of felony DUI beyond a reasonable doubt (including the fact of his prior convictions); (2) redacting a video showing the events surrounding his attempted blood test; and (3) admitting testimony from the investigating officer about that officer's decisions whether to arrest DUI suspects and whether the officer has probable cause.

¶ 4 Because we determine that the misdemeanor DUI conviction underlying Montoya's felony DUI conviction must be reversed, we need not address his first contention. With respect to Montoya's second contention, we reverse his misdemeanor DUI conviction because we conclude that the district court abused its discretion in two respects. First, the court erred by determining that Montoya refused to take a blood test when he later indicated a willingness to take it within the two-hour window authorized by law. Second, the district court erred by only providing the redacted video to the jury, as it was potentially misleading or incomplete because it did not include Montoya's later statement indicating a willingness to take the test. We therefore remand for a new trial. And because Montoya's third contention involving the officer testimony is unlikely to arise in the same posture on remand in the event of a retrial, we decline to address it.

I. Background

¶ 5 On the morning of the incident, Montoya got into his car after arguing with his wife's daughter, S.M. S.M. then called the police to report that she "believed" Montoya was driving after drinking. Montoya drove into the back of another car. The other driver called the police and reported that Montoya showed signs of intoxication.

¶ 6 Montoya was arrested and went to trial on charges that included DUI (three prior or subsequent offenses), § 42-4-1301(1)(a), C.R.S. 2021, and careless driving, § 42-4-1402(1), (2)(a), C.R.S 2021.¹ At trial, the jury found Montoya guilty of DUI and careless driving.² In a separate hearing, the court found by a preponderance of the evidence that Montoya's DUI violation was his fourth conviction, thus elevating his DUI to a felony. See § 42-4-1301(1)(a).

II. Exculpatory Statement

¶ 7 Montoya contends that the district court erred by excluding his exculpatory statement that he was willing to take a blood test. We agree.

A. Additional Facts

¶ 8 After a first officer initially responded to the scene of the collision, Officer Brian O'Halloran (Officer O'Halloran) and a third officer arrived. Officer O'Halloran’s body camera video reflects that he arrived at the scene at 1:16 p.m., but that the collision took place (and Montoya stopped driving) around 12:40 p.m.³ Officer O'Halloran approached Montoya and noticed that he smelled of alcohol, had bloodshot eyes, and had slurred speech. Officer O'Halloran also noticed that Montoya's pants were wet and thought Montoya had urinated on himself. Officer O'Halloran requested but Montoya declined to perform roadside maneuvers, at which point the officer arrested Montoya on suspicion of DUI and advised him about the Expressed Consent Statute. Montoya initially agreed to take a blood test.

¶ 9 Officer O'Halloran took Montoya to detox, where Montoya read and signed what is generally referred to as the expressed consent form and again agreed to a blood test. At 2:05 p.m., however, Montoya refused to give permission to the nurse when she arrived to perform the blood test. Officer O'Halloran’s body camera video shows Montoya telling the nurse, "Yeah, but I don't think I'm gonna do it." The last event shown in the clip of the video shown to the jury is Montoya stating, "2:05, Glen Montoya refused" and the officer acknowledging this statement. About ten or fifteen minutes after his refusal and after the nurse had departed, but approximately twenty minutes before the two-hour window within which the test had to be administered expired at approximately 2:40 p.m., Montoya told officers he would take the test. Because the unredacted video from Officer O'Halloran’s body camera is not included in the record on appeal, we assume Montoya's request to later take the test was denied. By law, if a chemical test is not administered on an individual within two hours from when the individual ceased driving, the prosecutor may use evidence of that refusal at trial. §§ 42-4-1301(6)(d), 42-4-1301.1(2)(a)(III).

¶ 10 In a pretrial ruling, the district court concluded that Montoya's later statement that he was willing to take the test was self-serving hearsay because once he refused the test, he was not entitled to change his mind. The district court determined that Montoya's later statement would be prejudicial and confuse the jury because the jurors would question why the test had not been administered. As a result, and despite defense counsel's objections based on CRE 106 ’s rule of completeness, the court allowed the prosecution to redact the portion of the video that included Montoya's statement that he would take the test. At trial, the district court gave a jury instruction that Montoya had refused to take the chemical test.

B. Standard of Review

¶ 11 We review evidentiary rulings for an abuse of discretion. People v. Jones , 2013 CO 59, ¶ 11, 311 P.3d 274. A district court abuses its discretion when its ruling is manifestly arbitrary, unreasonable, or unfair, or is based on a misapplication of the law. People v. Rios , 2020 COA 2, ¶ 9, 463 P.3d 322.

C. Analysis

¶ 12 We first address the district court's pretrial ruling on refusal. Then we address the redacted video with the instruction provided to the jury.

1. Refusal to Take a Chemical Test

¶ 13 Prior to trial, the prosecutor sought clarification on her request to redact Officer O'Halloran’s body camera video to exclude the ten minutes when Montoya later stated a willingness to take the test. We note that the video recording certified on appeal only includes the redacted version that was published to the jury.⁴ In opposition to the prosecutor's request, defense counsel stated, "Further, I believe this would be a question of fact for the jury in terms of what a refusal is, and there is a distinction between a refusal for DMV purposes and what the jury decides to be a refusal." Defense counsel continued, "I expect the prosecution will be trying to admit a jury instruction that says you can infer that the refusal is evidence of guilt, and I think taking out a piece of what happened during the refusal gives an improper impression to the jury."

¶ 14 We agree with defense counsel. As a result, we conclude that the district court's reasoning that once Montoya refused the test he could not change his mind is, in this case, a misapplication of the law.

¶ 15 Colorado's Expressed Consent Statute provides that "if a person elects either a blood test or a breath test, the person shall not be permitted to change the election." § 42-4-1301.1(2)(a)(II). It continues that, "if the person fails to take and complete, and to cooperate in the completing of, the test elected, the failure shall be deemed to be a refusal to submit to testing." Id. The law clarifies that "the person must cooperate with the request such that the sample of blood or breath can be obtained within two hours of the person's driving." § 42-4-1301.1(2)(a)(III). Based on the plain language of the statute, this binding decision of which test to take is separate from whether the person fails to "take and complete" or fails to "cooperate" with taking the test. See Pulte Home Corp., Inc. v. Countryside Cmty. Ass'n , 2016 CO 64, ¶ 24, 382 P.3d 821 (in reviewing the plain language of statutes, we give words their ordinary meanings (citing Denver Post Corp. v. Ritter , 255 P.3d 1083, 1089 (Colo. 2011) )).

¶ 16 When a person refuses to take a chemical test, the officer must serve on the individual — if the person is still in the officer's presence — a notice that the individual's driver's license may be revoked by the Department of Revenue, Division of Motor Vehicles (DMV). § 42-2-126(5)(b)(I), C.R.S. 2021. This notice is part of the DMV's administrative process for license revocation, and an individual may request a...