People v. Barry
2015 COA 4
Colo. Ct. App.2014Background
- Late-night head-on collision on I-25 killed L.D.; defendant Victoria Barry was driving an SUV that evidence and reconstruction showed was traveling the wrong way.
- Multiple 911 callers reported a black SUV driving the wrong way near the crash site; defendant told officers she had "a drink" and appeared confused at the scene.
- Defendant was taken to a hospital; about 1:30–1:41 a.m. a DUI officer obtained a nonconsensual blood draw without a warrant; BAC was .219.
- Defendant was charged with DUI vehicular homicide, reckless vehicular homicide, DUI, excessive alcohol content, and two counts of third-degree assault; convicted on all counts except one assault charge.
- Trial court denied motion to suppress the blood evidence; on appeal the court considered probable cause, exigent circumstances (post‑McNeely), statutory authority for compelled draws, Confrontation Clause issues, and merger/double‑jeopardy between vehicular homicide counts.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Barry) | Held |
|---|---|---|---|
| Warrantless blood draw — probable cause | Officers had collective facts (911 reports, vehicle position, defendant's statements and signs) supporting probable cause to arrest for alcohol-related driving offenses. | Police lacked probable cause to arrest for an alcohol-related offense when they ordered and obtained the blood. | Held: Probable cause existed based on the fellow-officer rule and the totality of information known to police. |
| Warrantless blood draw — exigency / suppression | Even if McNeely later changed the exigency rule, officers reasonably relied on then-binding Colorado precedent (Schall) and suppression is not warranted under the Davis good‑faith exception. | Even under McNeely, exigent circumstances did not exist; evidence should be suppressed. | Held: Even if McNeely might make the draw problematic, officers acted in objectively reasonable reliance on prior binding precedent; exclusion not required. |
| Statutory authority for forced draw | Express-consent statute authorizes forced draws when officer has probable cause to believe defendant committed any listed offense (e.g., vehicular assault); probable cause for at least vehicular assault existed. | There was no statutory authority because no probable cause that defendant caused L.D.'s death by DUI (vehicular homicide). | Held: Statutory authority existed — probable cause for vehicular assault (an enumerated offense) authorized a compelled blood draw. |
| Confrontation Clause — certification that blood was drawn by venipuncture | Admission of EMT certification was harmless; officer could testify to observing EMT and the certification did not undermine reliability of BAC results. | Admission of the EMT's signed certification (testimonial hearsay) without live testimony violated the Confrontation Clause and undermined the verdict. | Held: Officer's testimony that the drawer was an EMT was permissible; the EMT's certification was testimonial hearsay and admission was error but did not rise to plain error requiring reversal. |
Key Cases Cited
- Schmerber v. California, 384 U.S. 757 (1966) (warrantless blood draws are searches implicating bodily integrity; exigency can justify warrantless draw in appropriate circumstances)
- Missouri v. McNeely, 569 U.S. 141 (2013) (natural dissipation of alcohol is not a per se exigency; exigency must be assessed case‑by‑case)
- Davis v. United States, 564 U.S. 229 (2011) (exclusionary rule does not apply when officers act in objectively reasonable good‑faith reliance on binding appellate precedent)
- Bullcoming v. New Mexico, 564 U.S. 647 (2011) (forensic laboratory reports are testimonial; admission without the analyst's testimony can violate the Confrontation Clause)
- Viduya v. People, 703 P.2d 1281 (Colo. 1985) (vehicular homicide statute describes one offense with alternative methods of commission)
- Lucero v. People, 985 P.2d 87 (Colo. App. 1999) (vacating duplicative convictions where DUI and reckless driving are alternative means of proving vehicular homicide)