*1 RICKSTREW, Petitioner, Brent of the State of
The PEOPLE
Colorado, Respondent. Petitioner, GONZALES,
Antonino
The PEOPLE of the State of
Colorado, Respondent. 90SC617,
Nos. 90SC616. Colorado,
Supreme Court of
En Banc. 25, 1991.
Nov.
Rehearing Denied Jan. Vela,
Dаvid F. Colorado State Public De- fender, Jensen, Mounteer, E. Jenine Joan Defenders, Denver, Deputy State Public petitioners. for Norton, Gen., Atty. Raymond T. Gale A. Gen., Deputy Atty. Timo- Slaughter, Chief Gen., Daniel thy Tymkovich, M. Sol. John Gen., Dailey, Deputy Atty. Mark Robert Gen., Denver, Russel, Atty. First Asst. respondent.
Justice MULLARKEY delivered Opinion of the Court. cases, claim
In these the defendants homi thаt a section of Colorado’s vehicular prior to its amendment cide vague and therefore void under the due clauses Constitutions. Gonzales United States vagueness preserve failed to the void for trial; at therefore dismiss the writ issue improvidently granted of certiorari as *2 another, homi- Rickstrew, he commits vehicular to because case.1 As his liability crime. This is a strict fa- cide. infirmity in the either find no him, to we affirm the cially applied (2) any prosecution or In for a violation (1) section, appeals. court of of subsection of this in the defendant’s amount of alcohol of the commission of at the time blood I. offense, alleged or within a reason- con February Rickstrew was In thereafter, by chemi- time as shown able homicide and by jury of vehicular victed a blood, the defendant’s analysis cal resulting leaving of an accident the scene breath, urine, give rise to the or shall 18-3-106, 8B C.R.S. in death under sections following presumptions: (1984). 42-4-1401, In (1986) 17 C.R.S. (c) per- time 0.10 there was at such van, driving a while September of in the by weight cent or more alcohol troopеr and killed a state Rickstrew struck blood, presumed it shall be defendant’s Interstate 25 han standing on who was was under the influ- that the defendant defen matter. The dling another traffic ence of alcohol. tested twice blood alcohol level was dant’s highlighted provision is the focus of gas process called after the incident arguments. the defendant’s constitutional process measures chromatography. The claims that the defendant per 100 milliliters of grams of alcohol vague by weight” provision facially be- blood, i.e., blood volume. specify the exact method- cause it fails to alco Rickstrew’s blood these two trigger- ology of the test which results respec measured .252 and .216 hol levels presumption of intoxication. The trial, the defendant moved tively. Before argues subsequent defendant also relating to the suppress all evidence to to the vehicular homicide stat- amendment tests on the administered blood alcohol stat- ute is further indication of the former ground the then vehicular homicide vagueness. Finally, the defen- ute’s facial unconstitutionally vague be statute was argues that the statute was unconsti- dant no ascertainable standard provided cause it him the stat- applied tutional as because to measure blood alcohol level. his intoxication arose utory presumption of Rick- The trial court denied the motion. per- vague language. We are not from its years to sixteen im strew was sentenced arguments. suaded the defendant’s appeals prisonment. The court of affirmed People v. Rick Rickstrew’s convictions. III. strew, (Colo.App. August 88CA0610 1990) (not publication). selected for A. granted to decide the constitu certiorari argu analyzing Before Rickstrew’s challenge. tional ments, guiding briefly the wе will review When principles of construction. II. issue, process penal is at “the due statute defendant, sec- The statute consti clauses of the federal and Colorado 18-3-106, pro- then tion require tutions articulation of definite and part: vided relevant capable applica fair precise standards (l)(b)(I) by judges, juries, police prosecu person operates If a or drives tion Norman, People influence v. 703 P.2d a motor vehicle while under the tors.” Due also re any drug or intoxicant and such con- 1266 penal provide fair proximate quires of the death that a statute duct is the cause Martinez, publication). now before People ed for In both cases 1. See v. 1981) рrecluded party (appellate if failed appeals review to consider the us the court of declined challenge constitutionality of in trial statute jurisdic lacked issue because it court). convictions were affirmed Gonzales's authorizing its statute. tion to do so under Gonzales, appeals. People v. the court of 13-4-102(l)(b), 6A C.R.S. 2, 1990) (not August (Colo.App. select 88CA1803 prohibited. warning People of the conduct B. Stevens, argues that the statute Rickstrew penal
We are also aware that
“statutes are
did not specify the test method which de
strictly
in favor of a defen-
construed
termines the statutory presumption of in
Hale,
dant.”
*3
toxication and
a consequence
that as
no
(Colo.1982).
provided
workable standard was
for those
who
enforced and
it.
It
However,
is undis
rule
“the
of strict con
however,
puted,
that the standard
struction
of criminal statutes should not be
used to test a
used to
of
driver’s blood alcohol
defeat the evident intention
the
content
is,
Court,
case,
legislature.”
and was in
People v. District
713
the defendant’s
the
918,
(Colo.1986).
“weight per
P.2d
922
Our task “is to
volume” method which we de
ascertain and effectuate the intent of the
part
opinion.
I
ques
scribed
of this
The
R.C.,
Assembly.”
General
In Interest
us, then,
tion before
“weight
is whether the
of
27,
(Colo.1989). Indeed,
775 P.2d
29
in per
actually
volume” tests
by
administered
Court,
Hosp.
Beth Israel
District
v.
683
People
comport
legislative
in
343,
(Colo.1984),
P.2d
leg
345
we held that
“percent weight”
tent of
by
provid
polestar
islative intent is “the
of
statute,
ed
“per
and whether that
2
construction.”
by weight” statutory
cent
language can
“weight
mean
per volume” without violat
Moreover,
statutes, including pe
all
hold, first,
process.5
statutes,
presumed
nal
“are
be constitu
by
intent of
“percent weight”
test was
tional,
party
and the
is on the
chal
burden
“weight per
second,
volume” test and
lenging
validity
prove
its
unconstitution
that using
lan
ality beyond
People
a reasonable doubt.”
guage permissibly
“weight
could mean the
916,
(Colo.
v. McBurney, 750 P.2d
920
per volume” test.
1988).3
challenged
is
“When a statute
on
legis-
We first direct our
attention
grounds
vagueness,
of
courts
attempt
will
Coins,
lature’s intent.
In Exotic
Inc. v.
legislation
to construe thе
in a manner
Beacom,
(Colo.1985),
944
we
satisfy
pro
which will
constitutional due
held that “if
legislative
intent is
requirements,
cess
if
reasonable and
[a]
imprecision
necessarily
of terms does not
practicable
of
construction
the statute will
deficiency.”
result in
People
Rostad,
achieve such
result.”
“weight per
sum,
volume” method in fact
127
yardstick
impеrmissible
Assembly
there is “no
intended
the General
when it
in
legislated “percent
weight,”
determinacy”
inquiry
in a
and the
then the
here
prosecutorial practice
must be “evaluative rather
under the statute
than me
4
capricious
chanistic.”
arbitrary
was not
and
thus
2-4-203,
1985).
Independent
2. Under section
IB C.R.S.
See
Antonio
as an
abo San
1, 16-17,
determining
aid in
Rodriquez,
the intention оf the
School District v.
411 U.S.
General
1278, 1287-88,
Assembly,
may
upon
we
consider statutes
93 S.Ct.
We change the generally ment is intended Next, inquiry we direct our tо whether law, case, in we hold that the but language “percent by weight” can clarified rather subsequent amendment “weight per mean offend- volume” without Davis, 794 changed the statute. See than is, ing process. “percent That does the 181; Employment P.2d at Colo. Div. of by weight” language sufficiently set the Hosp., 725 P.2d Parkview give standards rise to the which 1986)(rule of construction when law Stevens, presumption? See 761 P.2d at change intent was to it is amended the persuasive analysis 771. find in amended to clari inapplicable when “law is Brooks, Commonwealth v. 366 Mass. ambiguity”). That the amendment fy an (1974) (evidence 319 N.E.2d 904-05 legis a clarification is indicated was “weight per based on volume” test held history closely related statute. lative of a admissible). disposing challenge In of a lan The amended statute now tracks the statute, “percent weight” comparable guage Driving of the Under the Influence the court found that “the concentration of 42-4-1202(2)(c), (DUI) 17 C.R.S. § biological alcohol in fluids such as blood is (1984 Supp.), provides for a & 1991 usually expressed as the weight per volume measure. The DUI per vоlume Id. 319 unit of fluid.” specifi in statute itself was amended (emphasis original). That N.E.2d at 905 cally provide “weight per for the vol is, per millili- grams the ratio of of alcohol “ Thus, ume” method.6 the former ‘usually referred to sim- ters blood is ” by weight” language of the vehicular homi ply percent as the of alcohol in the blood.’ cide statute was intended to mean a Erwin, (citing Id. Drunk Driv- Defense of “weight per volume” measure. The 1989 1974)). (3d 15.04 ed. Further- Cases § “ amendment, disapproving far from the ac more, testing widely-used instru- ‘[a]ll practice “weight per tual volume” report “percentage” ments that terms of simply made clear that those tests were “percentage by weight” or of alcohol in the ” fact intended. weight/volume’ actuаlly utilize the blood Watts, (citing expert The administered the blood measure. Id. at 907 Some who tests to the defendant stated that the Observations on Police-Administered language According legislative history "percent by weight” to the invoked under defendant, challenged by legislature’s intent DUI statute would be then former "sharp” attorneys. such administered to reduce the risk that tests Intoxication, 45 N.C.L.Rev. The term Tests has a (1966)). commonly the foregoing, meaning. n. 53 understood From concluded, order we, expressed “percent” for a result as a court as do Brooks meaning, being units compared “percent by weight” commonly indi- words Erwin, must be the same. See a measure cate one Defense (3d Driving Drunk Cases 15.02 ed. Therefore, hundrеd milliliters of blood. of 1991). majority acknowledges this. vehicular statute is former homicide Maj. op. at by weight,” 507 n. 5. “Percent vague and does not the due violate therefore, clearly denotes calculation em- clauses United States ploying same units for both Constitutions. alcohol and blood. Under normal circum- indisputable stances it would be that blood IV. (a expressed unit of weight) (a per 100 milliliters unit of vol- reasons, foregoing uphold For the ume) do by weight. not state a constitutionality of the then vehicular homi- Such a mathematical calculation cannot cide statute. produce a result that can be properly char- judgment is affirmed. “percent.” acterized in terms of *5 LOHR, J., specially сoncurs and ERICK- test, statutory SON, J., joins in special concurrence. however, cannot be divorced from the con- VOLLACK, J., participate. not text does for which it created. Blood-alco- common,
hol tests are
and have been for
years, as
aids in
evidentiary
determining
LOHR,
concurring:
Justice
specially
person
whether a
drove motor vеhicle
agree
determining
I
that
in
whether a
impaired by
while
to a statutorily
alcohol
presumption that a defendant was under
impermissible degree.
See Common-
influence of
alcohol arises under sec-
Brooks,
wealth v.
366 Mass.
319
18-3-106(2)(c),
tion
N.E.2d
904
The usual scien-
statutory
“0.10
or more
standard'
practice
conducting
tific
in
such tests is to
weight of
in the
alcohol
defendant’s
per
determine
of alcohol
100 millili-
requires
blood”
a calculation based on
905;
ters of blood.
Id.
practical guidance sufficient provide must also can enforced that the statute
to assure manner. cоnsistent and even-handed Schoondermark, 699 P.2d
People v. Gross, (Colo.1985); People v. 415-16 Colorado, The PEOPLE of State (Colo.1983). It cannot rea- P.2d Plaintiff-Appellee, *6 that the test at issue is sonably be believed persons tailor their conduct. one to which grams per
The evidence showed SWEPSTON, Bradley Defendant- produces standard results 100 milliliters Appellаnt. slightly higher than a true only that are weight simply It is No. 90CA1612. weight per standard. persons limit that
unrealistic believe Appeals, Court of way consumption in a so fine- their alcohol Div. II. presumption ly as to avoid calibrated weight weight per test but suffi- under the Nov. gives birth to cient to reach the level weight per vol- presumption under the Moreover, suggests ume the rеcord test. consistently testing laboratories grams per 100 milliliters
used the expressing test results blood-alcohol there- courts. The law has
use Colorado applied in an even-handed man-
fore been circumstances, the utiliza-
ner. Under the 100 millili-
tion of the standard did not violate defen-
ters of blood right Rickstrew’s to due
dant
law.2 Rickstrew, weight per requires applied to both the expressing 2. As blood-alcohol test pro- weight and the volume test or volume in be measured in necessary Only quantities. duced a result in excess of that common scien- 100 milliliter maj. op. trigger statutory presumption. testing practice supports See the use of these
tific quantities and volume. at 508. units and