530 P.3d 68
Okla. Crim. App.2023Background
- June 22, 2020: ATV crash in Garfield County killed passenger Shannon Kirkhart; Kelly Burtrum identified himself as the driver.
- Troopers detected a "slight odor" of alcohol; Trooper Cottrill told Burtrum state law required a blood draw after a fatality; Burtrum assented and was transported to hospital where blood was drawn (.109 BAC).
- Troopers did not read implied-consent warnings or advise Burtrum he could refuse; Blood Test Officer's Affidavit had the consent box checked prior to Burtrum signing.
- Defense moved to suppress, arguing consent was not voluntary because officers told Burtrum the blood draw was mandatory; district court granted the motion, finding Burtrum was effectively under arrest and his submission was not voluntary.
- On appeal the Court of Criminal Appeals affirmed, holding Stewart v. State controls: 47 O.S. § 10-104(B) cannot be used alone to compel warrantless blood draws; absent warrant there must be consent or a case‑specific magistrate probable‑cause/exigency finding.
- Because Stewart was decided before this incident, officers’ reliance on the statute was not protected by a good‑faith exception; the blood evidence was properly suppressed.
Issues
| Issue | State's Argument | Burtrum's Argument | Held |
|---|---|---|---|
| Whether Burtrum was under arrest when blood was drawn | Not an arrest; Burtrum was cooperative and rode unhandcuffed to hospital | Circumstances would lead a reasonable person to believe he was not free to leave | Court did not decide this issue (Proposition 2 dispositive) |
| Whether Burtrum voluntarily consented to the blood draw | Troopers reasonably relied on 47 O.S. §10‑104(B); Burtrum consented by cooperating | Troopers told him the draw was required by law so his submission was not voluntary | Consent was not voluntary; suppression affirmed (reliance on statute alone is unconstitutional under Stewart) |
Key Cases Cited
- Birchfield v. North Dakota, 579 U.S. 438 (taking blood is a search under the Fourth Amendment)
- Missouri v. McNeely, 569 U.S. 141 (warrantless blood draws require case‑by‑case exigency analysis)
- Schneckloth v. Bustamonte, 412 U.S. 218 (voluntariness of consent judged under totality of the circumstances)
- Florida v. Royer, 460 U.S. 491 (burden on government to prove consent was freely and voluntarily given; mere submission to authority insufficient)
- Ohio v. Robinette, 519 U.S. 33 (knowledge of right to refuse is a factor but not dispositive for voluntariness)
- Stewart v. State, 442 P.3d 158 (Oklahoma: §10‑104(B) cannot alone justify warrantless blood draws; magistrate probable cause or consent/exigent circumstances required)
- United States v. Sawyer, 441 F.3d 890 (Tenth Circuit factors for evaluating voluntariness of consent)
- Burton v. State, 204 P.3d 772 (Oklahoma: consent defense requires clear and convincing proof that waiver was voluntary)