People v. Glen Gary Montoya

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
May 26, 2022

2022COA55

No. 18CA1409, People v. Montoya — DUI; Regulation of
Vehicles and Traffic — Alcohol and Drug Offenses — Expressed
Consent for the Taking of Blood, Breath, Urine, or Saliva —
Refusal; Evidence — Remainder of or Related Writings or
Recorded Statements

In the context of a driving under the influence (DUI)

prosecution, the division confronts two issues of first impression.

First, what constitutes a defendant’s refusal to take a blood test

under the Colorado Expressed Consent Statute, section 42-4-

1301.1(2)(a), C.R.S. 2021, when the district court is asked to make

a pretrial evidentiary ruling? The division concludes that a finding

of refusal by a district court 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 a refusal to take a

chemical test.
Second, what evidence of refusal should be presented to a jury

when the prosecution seeks to use a statement made by the

defendant but the defendant disputes refusal? The division

concludes that, in such a situation, the entire circumstances

surrounding the defendant’s statements made during the test-

taking must be presented to the jury under the rule of

completeness, CRE 106.

The special concurrence would reach the same result but

writes separately to call attention to whether a so-called Cox jury

instruction, see Cox v. People, 735 P.2d 153 (Colo. 1987), should be

provided at all in DUI prosecutions, but especially where, as here

on remand, the issue of refusal is disputed.
COLORADO COURT OF APPEALS 2022COA55

Court of Appeals No. 18CA1409
Arapahoe County District Court No. 17CR445
Honorable Phillip L. Douglass, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Glen Gary Montoya,

Defendant-Appellant.

JUDGMENT REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division VI
Opinion by JUDGE JOHNSON
Fox, J., concurs
Welling, J., specially concurs

Announced May 26, 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
¶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.

1
¶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

2
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

1 Before trial, Montoya pled guilty to failing to provide proof of
insurance.
2 We do not address Montoya’s careless driving conviction, as his

contentions on appeal do not implicate that offense.

3
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

3The driver of the car that Montoya hit testified that she waited
about twenty minutes after the collision to call the police because
Montoya was attempting to call his insurance carrier.

4
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

administered on an individual within two hours from when the

5
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. 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.

6
¶ 12 We review whether a particular jury instruction should have

been provided to the jury for an abuse of discretion. Chapman v.

Harner, 2014 CO 78, ¶ 4. Whether a jury was appropriately

instructed on the law is an issue we review de novo. Id.

C. Analysis

¶ 13 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

¶ 14 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

4 The record includes two versions of the body camera video, neither
of which includes the ten or fifteen minutes when Montoya later
indicated a willingness to take the test.

7
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.”

¶ 15 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.

¶ 16 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

8
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 (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))).

¶ 17 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 hearing before a hearing officer and then

seek judicial review of any final determination. § 42-2-126(6)-(9).

¶ 18 In the context of driver’s license revocation proceedings, there

is ample guidance on what constitutes a refusal or refusal by

noncooperation to take a chemical test. In Gallion v. Colorado

Department of Revenue, 171 P.3d 217, 222 (Colo. 2007) (Gallion II),

for example, our supreme court determined a licensee must “timely

cooperate.” See also Schulte v. Colo. Dep’t of Revenue, 2018 COA

9
140, ¶ 31. Thus, while a licensee’s initial denial may not be

irrevocable, the driver must agree to the test “while the officer

remains engaged in requesting or directing the completion of the

test.” Id. (quoting Gallion II, 171 P.3d at 222). Whether a licensee

cooperates with an officer is based on an objective standard of the

“driver’s external manifestations of willingness or unwillingness to

take a test.” Alford v. Tipton, 822 P.2d 513, 516 (Colo. App. 1991).

The licensee has the burden to prove cooperation. Gallion v. Dep’t

of Revenue, 155 P.3d 539, 544 (Colo. App. 2006) (Gallion I), aff’d,

171 P.3d 217 (Colo. 2007).5

¶ 19 A licensee may not be able to recant the refusal to take the

test if, for example, the officer has already served the notice of

revocation of licensure and returned to his patrol duties, meaning

the officer has disengaged. See Gallion II, 171 P.3d at 223. And a

licensee’s unwillingness to take a test may be construed as a

“refusal by noncooperation” if, for example, the licensee requests to

speak with an attorney, see Haney v. Colo. Dep’t of Revenue, 2015

COA 125, ¶ 18, or the licensee remains silent and thus does not

5We take no position on whether the defendant bears any burden
of proof on this issue in a criminal context.

10
provide affirmative consent, see Poe v. Dep’t of Revenue, 859 P.2d

906, 908 (Colo. App. 1993).

¶ 20 The record is not clear — despite the district court’s finding of

refusal — that Montoya lost his chance to take the test when the

nurse arrived and he refused to take the test but later stated a

willingness to take it. In Gallion II, 171 P.3d at 222-23, the officer

had “disengaged” by returning to his duties at the time the licensee

changed her mind and expressed her willingness to take the test.

Here, however, the officer who arrested Montoya and took him to

detox was also the officer who drove him to the municipal jail.

True, as the prosecutor pointed out during pretrial proceedings,

when Montoya realized he was going to jail, he indicated a

willingness to take the test. And the district court questioned the

interval from when Montoya refused to when he changed his mind,

with the prosecutor noting that the nurse had departed by that

time.

¶ 21 But as mentioned above, because the record on appeal does

not contain the ten to fifteen minutes of video following Montoya’s

refusal at 2:05 p.m., we do not know whether the officer was

“disengaged” in a manner consistent with refusal or whether

11
Montoya engaged in other actions that the officer could properly

construe as a refusal by noncooperation. And other than the

district court indicating that it had heard just a “small blurb” of the

body camera video, there is no indication in the record that the

court reviewed the ten to fifteen minutes of video that included

Montoya’s later statement.6

¶ 22 Thus, because the district court did not make its refusal

determination based on review of the whole video, we will not apply

our usual presumption that a district court’s decision is correct and

supported by the evidence when the unredacted version of the video

is not available to us. Cf. People v. Duran, 2015 COA 141, ¶¶ 11, 12

(“A trial court’s rulings and judgments are presumed correct until

the party attacking them affirmatively demonstrates they are not,”

which requires designating the entire record necessary for review.).

¶ 23 Even the Attorney General concedes on appeal that Montoya’s

change of mind occurred within the two-hour window for

administering the test. See § 42-4-1301.1(2)(a)(III). Yet the record

does not reveal why a test could not have been administered in that

6The district court also specifically indicated it had “not seen the
body cam footage.”

12
timeframe.7 Consequently, the district court’s legal conclusion that

a person’s refusal to take a blood test is irrevocable was an abuse of

discretion without first finding that Montoya had refused because

the officer had disengaged, the test could not be administered

within the two-hour window when he later changed his mind, or

Montoya engaged in other actions that constituted refusal by

noncooperation. As discussed below, this error was not harmless

based on Montoya’s contention that the rule of completeness

required the jury to view the entirety of the video documenting the

circumstances surrounding the test.

2. Redacted Video

¶ 24 Under CRE 106, Montoya contends the entire video of his test-

taking should have been presented to the jury. We agree.

¶ 25 The concept of completeness was originally a common law rule

that was later codified in CRE 106. People v. Melillo, 25 P.3d 769,

775 n.4 (Colo. 2001) (at common law, the rule of completeness

7 One of the officers indicated at a suppression hearing that he
waited approximately twenty minutes for the nurse to initially arrive
to administer the test. After Montoya’s change of mind, however, it
is unknown whether the nurse could have come back to administer
the test before the statutory two-hour period expired at
approximately 2:40 p.m.

13
pertained to all statements). CRE 106 provides that “[w]hen a

writing or recorded statement or part thereof is introduced by a

party, an adverse party may require him at that time to introduce

any other part or any other writing or recorded statement which

ought in fairness to be considered contemporaneously with it.” This

rule is intended to “prevent[] a party from achieving an unfair result

by introducing all or part of a writing or recording out of its

context.” People v. Short, 2018 COA 47, ¶ 42 (quoting 2 Stephen A.

Saltzburg et al., Federal Rules of Evidence Manual § 106.02 (11th

ed. 2015)).

¶ 26 Instead, subject to considerations of relevance and prejudice

under CRE 401 and 403, “if a statement made by the defendant in

a criminal case is admissible in evidence as an admission or

declaration, it is admissible as an entire statement, including the

parts thereof which are favorable as well as the parts which are

unfavorable to the party offering the same.” Melillo, 25 P.3d at 775

(quoting McRae v. People, 131 Colo. 305, 311, 281 P.2d 153, 156

(1955)).

¶ 27 The rule of completeness is akin to the judicially created

doctrine of “opening the door,” which is “also based on principles of

14
fairness and completeness.” Id. “The concept of ‘opening the door’

represents an effort by courts to prevent one party in a criminal

trial from gaining and maintaining an unfair advantage by the

selective presentation of facts that, without being elaborated or

placed in context, create an incorrect or misleading impression.”

People v. Heredia-Cobos, 2017 COA 130, ¶ 20 (quoting People v.

Murphy, 919 P.2d 191, 195 (Colo. 1996)).

¶ 28 After analyzing numerous treatises and legal sources, a

division of this court in Short, ¶ 49, concluded that while evidence

may include hearsay or exculpatory statements made by the

defendant, under the rule of completeness, “[i]f the prosecution

wants to admit part of a statement, it ought, in fairness, to ‘pay the

costs’ of admitting it in its (relevant) entirety under the rule of

completeness. If it is not willing to pay the costs, it should not be

permitted to admit any portion of the statement.” See id. at ¶ 42

(“When the trial court finds that fairness requires the admission of

additional evidence, the proponent must decide between allowing all

of the evidence to be admitted and withdrawing the originally

proffered portions.” (quoting 2 Saltzburg et al., § 106.02)). We agree

15
with Short and conclude for three reasons that Montoya’s entire

test-taking video needed to be presented to the jury under CRE 106.

¶ 29 First, based on our analysis in Part II.C.1, supra, because a

driver’s initial refusal may not be binding depending on the entire

circumstances of the exchange (i.e., whether the officer

“disengaged,” the amount of time left to administer the test in the

two-hour window, and the driver’s external actions), the entire video

of the test-taking circumstances, which includes the remaining ten

to fifteen minutes, needed to be presented so the jury had a

complete picture of what had occurred.

¶ 30 Second and relatedly, given our agreement with Short, we are

not convinced that the redacted video was properly excluded

because it included self-serving hearsay. We acknowledge that

other divisions of this court have concluded that self-serving

hearsay may be excluded because it lacks an indicia of

trustworthiness. See, e.g., People v. Davis, 218 P.3d 718, 731 (Colo.

App. 2008); People v. Zubiate, 2013 COA 69, ¶ 33, aff’d, 2017 CO

17. But see People v. Vanderpauye, 2021 COA 121, ¶ 3 (self-serving

hearsay is not per se inadmissible, but it is subject to CRE 403 and

the statement must satisfy a hearsay exception). But, as Short

16
recognized, many commentators opine that the rule of completeness

acts to “trump” otherwise inadmissible evidence to prevent a

misleading or incomplete view. Indeed, “[a] party should not be able

to admit an incomplete statement that gives an unfair impression,

and then object on hearsay grounds to completing statements that

would rectify the unfairness.” Short, ¶ 45 (quoting 2 Saltzburg et

al., § 106.02).

¶ 31 Zubiate is instructive in distinguishing between using evidence

of a defendant’s refusal and using the statement of a defendant’s

refusal as evidence. That case dealt with a defendant who refused

to take a blood test because she was afraid of needles. Zubiate, ¶ 5.

A division of this court noted that the inculpatory statement — the

defendant’s refusal to take the test — was not introduced as

evidence. Instead, when asked by the prosecutor whether the

defendant agreed to provide a blood sample, the officer simply

indicated, “No, ma’am.” Id. at ¶ 32. In addition to holding that the

exculpatory statement was self-serving hearsay, Zubiate determined

that, under the rule of completeness, there was no statement that

needed to be completed. Id. Here, on the other hand, the jury

specifically viewed Montoya’s statements of refusal from the video.

17
As a result, the ten to fifteen minutes of video with his subsequent

statement indicating a willingness to take the test were needed for a

complete understanding of his prior statements of refusal.

¶ 32 Finally, we are unpersuaded that the evidence of Montoya’s

later statement would cause confusion to the jury or prejudice to

the prosecution under CRE 403. Under Short, ¶ 49, the

prosecution needed to either “pay the costs” and show the entire

video or withdraw the evidence. Here, the district court indicated

that the jury would question why Montoya was not given the test.

But that is precisely the point. Because refusal to take a chemical

test may be more complex and nuanced than simply saying “no” —

as demonstrated in this case — the jury’s potential question as to

why Montoya was not given the test if shown the latter portion of

the video would put the issue of refusal in dispute. Redacting the

video allowed the prosecution to stop at the refusal at 2:05 p.m.

and relieved it of its responsibility to present evidence as to why

Montoya’s later change of mind still nonetheless constituted refusal

or refusal by noncooperation.

¶ 33 Indeed, during the redacted video shown to the jury, Montoya

was shown vacillating and asking for legal advice as to whether he

18
should take the test. Because we do not have the unredacted

version, if Montoya continued to vacillate, the jury could very well

have considered his later “change of mind” to be a delay tactic or

refusal by noncooperation. Or, as the prosecutor argued pretrial,

because Montoya only changed his mind after he knew he was

going to jail, the officer could have testified he had “disengaged” and

Montoya lost his opportunity to take the test. But without making

the prosecution “pay the costs” of showing the entire test-taking

circumstances, the jury was not given the complete picture.8

¶ 34 Thus, we conclude that, under the facts of this case, when

refusal to take a chemical test is disputed by the defendant based

on the defendant’s recorded or written statement that the

prosecution seeks to use at trial, the entire statement must be

presented to the jury for its consideration.9 Because the district

8 Our opinion should not be read to imply that, explicitly or
implicitly, Montoya consented to take a chemical test when he later
purportedly changed his mind.
9 Our opinion should not be read to mean that any time a defendant

disputes that he refused to take a chemical test, his statements will
always be admissible under CRE 106.

19
court permitted the video footage to be redacted, we conclude that

this was error.10

3. The Error Was Not Harmless

¶ 35 We thus turn to whether presenting the jury with the redacted

version of the video was reversible error. We review preserved

challenges to evidentiary rulings for harmless error. See Pernell v.

People, 2018 CO 13, ¶ 22. Nonconstitutional harmless error

requires reversal only if we conclude that it affected the substantial

rights of a party. People v. Murphy, 2021 CO 22, ¶ 71. This means

that the error substantially influenced the verdict or impaired the

fairness of the trial. People v. Valera-Castillo, 2021 COA 91, ¶ 36.

The error here was not harmless.

¶ 36 The prosecutor presented the case as one in which Montoya

refused to take the blood test. In opening statements, the

prosecutor stated:

At first Mr. Montoya says, Okay, I’ll give you
my blood. You’ll see when they’re at the detox
center and the nurse arrives, Mr. Montoya

10 We acknowledge that the supreme court will be considering the
issue of whether self-serving hearsay is admissible under the rule of
completeness in People v. McLaughlin, (Colo. No. 21SC506, Mar. 14,
2022) (unpublished order). Our analysis remains unchanged given
current precedent.

20
decides to not show us what is in his blood, let
us know what alcohol he had in his system.
You will hear that Mr. Montoya did admit to
drinking two beers prior, but doesn’t say
anything else regarding that.

As a result of the court’s ruling allowing the video to be redacted,

defense counsel likewise had to present the case as one involving a

refusal to submit to a chemical test. In opening statements,

defense counsel stated, “Mr. Montoya said, Well, I did have two

beers, I don’t know how that will show up, and then said, I’m not

going to take the test.” The video was introduced and admitted as

evidence through the testimony of Officer O’Halloran, with the jury

hearing Montoya’s statements refusing the blood test. But Officer

O’Halloran did not testify that he was “disengaged” after Montoya

refused at 2:05 p.m., nor did the officer testify that he construed

Montoya’s actions as a refusal by noncooperation.

¶ 37 During closing argument, the prosecutor stated:

[Montoya] refused a chemical test. The
evidence to show how much alcohol he had in
his system was the defendant’s to give and he
chose not to give you that evidence. And why?
What was he hiding? Two beers? You can use
your common sense and experience in life
about drinking two beers at noon and getting a
blood draw at 2:00.

21
You heard him in that video say how important
it is to keep his license because he wants to
get a job at Comcast. You heard him say, If I
refuse are you going to take my license right
now? He knew that, and he chose to do that
rather than give the evidence of his blood
because common sense would say he didn’t
have two beers.

And, at the jury instruction conference, defense counsel argued that

the refusal instruction is not a standard Colorado jury instruction

for DUI or driving while ability impaired (DWAI) cases. Defense

counsel also argued the instruction was “more like a theory of the

prosecution than an actual statement of the law” and that it

“impermissibly highlights one fact that is likely more beneficial to

the prosecution.”

¶ 38 Jury instruction 14 stated:

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
person’s breath or blood for the purpose of
determining the alcoholic content of the
person’s breath or blood when so requested
and directed by a law enforcement officer
having probable cause to believe that the
person was driving a motor vehicle while under
the influence of alcohol or driving a motor
vehicle while the person’s ability to operate a
vehicle was impaired by alcohol.

22
If you find that Mr. Montoya refused to take
and complete, and to cooperate in the taking
and completing of a chemical test of his breath
or blood, you may consider this refusal along
with other evidence in determining whether
Mr. Montoya is guilty of Driving Under the
Influence or Driving While Ability Impaired.

¶ 39 We acknowledge that a jury is permitted to consider a driver’s

refusal of a test as part of the evidence to determine guilt of an

alcohol-related driving offense, and that such consideration of the

evidence generally is presented in the form of what we call a Cox

instruction. See Cox v. People, 735 P.2d 153, 155 (Colo. 1987); see

also People v. Mersman, 148 P.3d 199, 201 (Colo. App. 2006)

(interpreting Cox to mean that the jury may be instructed to

“consider a driver’s refusal to take a blood or breath test, along with

other evidence, in determining his or her guilt of driving under the

influence”).

¶ 40 We also acknowledge that our supreme court has concluded

that introducing evidence of a person’s refusal to take a chemical

test neither violates a defendant’s Fourth Amendment rights nor

violates the defendant’s equal protection rights. See Fitzgerald v.

People, 2017 CO 26, ¶ 27 (“The prosecution’s use of a defendant’s

23
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.”); see also People

v. Hyde, 2017 CO 24, ¶ 31 (taking a chemical test of an

unconscious driver does not violate equal protection because

without it the People are “deprived of the evidence they typically rely

on in drunk-driving prosecutions,” such as having the defendant

“perform roadside maneuvers, display speech or conduct indicative

of alcohol impairment, or admit to alcohol consumption”).

¶ 41 And we must presume the jury followed the instructions. See

People v. Kern, 2020 COA 96, ¶ 14. As a result, the jury was invited

to consider Montoya’s refusal as part of the evidence when it did not

have the entire video in which Montoya later claimed a willingness

to take the test.

¶ 42 In the context of analyzing whether evidence of refusal is even

admissible, Cox noted that “[t]he weight to be given the evidence of

refusal is for the jury to determine.” 735 P.2d at 159. It continued,

“[b]ecause a defendant may have a reason for refusing to submit to

a test that is unrelated to a consciousness of guilt, the inference of

intoxication that is permissible from evidence of refusal is

24
rebuttable.” Id. Here, the “consciousness of guilt” may have been

rebutted precisely because Montoya claimed a willingness to later

take the test.

¶ 43 Again, whether the jury would credit Montoya’s later

statement of willingness is for that fact finder to decide, but we

cannot say that providing the Cox jury instruction on refusal when

the entire test-taking circumstances were not also provided did not

substantially influence the verdict or affect the fairness of the trial.

See People v. Arzabala, 2012 COA 99, ¶ 13 (as the fact finder, it is

the jury’s responsibility to weigh the evidence and resolve any

conflicts or inconsistences).11

¶ 44 Although Montoya admitted to drinking two beers earlier, he

also claimed he was not drunk; the first officer who had contact

with Montoya testified he did not notice an indicia of intoxication;

there was no evidence of open liquor on Montoya (a shot of vodka

11Although we refer to defense counsel’s objections at the jury
instruction conference to providing a so-called Cox instruction,
Montoya did not raise on appeal a separate contention asserting
that the district court erred in this regard. Thus, we take no
further position other than what we have already stated. See
Moody v. People, 159 P.3d 611, 614 (Colo. 2007) (generally
arguments not advanced on appeal are deemed waived (citing
People v. Salazar, 964 P.2d 502, 507 (Colo. 1998))).

25
was found on him but it was sealed); and there were no

eyewitnesses to Montoya drinking, as S.M. “believed” he was

intoxicated but was not close enough to him to smell alcohol on

him. Therefore, we reverse Montoya’s DUI conviction and remand

for a new trial.

III. Montoya’s Other Contention

¶ 45 Finally, Montoya contends that Officer O’Halloran’s testimony

was improper because it included “screening” evidence of probable

cause and arrests of DUI suspects. Because the testimony came up

in the officer’s re-direct examination in response to the defense’s

cross-examination, there is no indication that it will be presented in

the same posture on remand. Therefore, we decline to address it.

IV. Conclusion

¶ 46 We reverse Montoya’s felony and underlying misdemeanor DUI

convictions and remand the case for a new trial.

JUDGE FOX concurs.

JUDGE WELLING specially concurs.

26
JUDGE WELLING, specially concurring.

¶ 47 I agree with the majority in full. I write separately to highlight

a jury-instruction predicament that I anticipate will arise on

remand.

¶ 48 As explained in the majority opinion, we reverse for two

reasons: (1) because the record and the court’s findings regarding

Montoya’s refusal of chemical testing weren’t adequate; and

(2) because the court abused its discretion when it limited the

evidence presented to the jury on the issue of refusal.

¶ 49 On remand, the trial court will need to determine, based on

the totality of the record, whether Montoya did “refuse” chemical

testing, as that term is used within Colorado’s Expressed Consent

Statute, section 42-4-1301.1, C.R.S. 2021. If the trial court finds

refusal, then the evidence of that refusal will be admissible at trial.

See § 42-4-1301(6)(d), C.R.S. 2021. And there are two more

decisions that it will then need to make: (1) what evidence relating

to refusal will be admitted; and (2) what, if any, instruction will it

give to the jury regarding the evidence of refusal. The majority

opinion appropriately focuses its analysis on the first question. I

completely agree with the majority’s analysis in that regard.

27
¶ 50 I write separately, however, to focus on the second issue.

Crafting this instruction under these circumstances — namely,

where the fact of refusal is disputed — is perilous. My concerns

begin with the refusal instruction that the court gave at the trial,

which is where I turn first.

I. Concerns Regarding the Refusal Instruction Given at Trial

¶ 51 Even apart from the errors identified in the majority opinion,

the refusal instruction given at trial was, in my view, problematic.

At trial, the court gave the jury the following refusal instruction:

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
person’s breath or blood for the purpose of
determining the alcoholic content of the
person’s breath or blood when so requested
and directed by a law enforcement officer
having probable cause to believe that the
person was driving a motor vehicle while under
the influence of alcohol or driving a motor
vehicle while the person’s ability to operate a
vehicle was impaired by alcohol.

If you find that Mr. Montoya refused to take and
complete, and to cooperate in the taking and
completing of a chemical test of his breath or
blood, you may consider this refusal along with
other evidence in determining whether Mr.

28
Montoya is guilty of Driving Under the
Influence or Driving While Ability Impaired.

(Emphasis added.)

¶ 52 This instruction is problematic for at least three reasons, and

those problems all revolve around the phrase “[i]f you find that

Mr. Montoya refused.”

¶ 53 First, the instruction called on the jury to make a finding

regarding whether Montoya refused chemical testing. We don’t

generally ask juries to make findings that aren’t elements of

charged crimes or facts necessary to enhance a sentence. Cf.

Garcia v. People, 2022 CO 6, ¶ 41 (Because whether the movement

of the victim “substantially increased the risk of harm to the victim”

“is neither an element nor a legal definition of one of the statutory

elements, a trial court does not err when it tenders second degree

kidnapping jury instructions without this language.” (quoting

People v. Harlan, 8 P.3d 448, 477 (Colo. 2000))). The fact of refusal

is neither. To be sure, refusal has administrative and evidentiary

consequences. See § 42-2-126(3)(c)(I), C.R.S. 2021 (an individual’s

driver’s license shall be revoked for at least one year upon an

administrative finding of refusal); § 42-4-1301(6)(d) (evidence of

29
refusal is admissible at a criminal trial). But it’s not an element of

DUI or DWAI (or any other crime Montoya was charged with). See

§ 42-4-1301(1)(a), (b) (elements of DUI and DWAI, respectively).

Therefore, I think it’s inadvisable to ask the jury to make a finding

here.

¶ 54 Second, even if it were appropriate to instruct the jury to make

a refusal finding, nothing in the court’s instructions tells the jury

what it means for a defendant to “refuse” chemical testing. The first

paragraph advises the jury of a driver’s obligations under the

Expressed Consent Statute, but it doesn’t define or provide

direction on the contours of refusal. And what it means for a driver

to refuse or fail to cooperate in the taking or completion of a

chemical test is a nuanced question. See, e.g., Schulte v. Colo. Dep’t

of Revenue, 2018 COA 140, ¶¶ 29-42 (applying five different


I recognize that the supreme court in Cox v. People, 735 P.2d 153,
155 (Colo. 1987), held that it wasn’t error for a trial court to
instruct the jury that it could consider refusal when reaching its
verdict on DUI and DWAI charges. But the instruction in Cox didn’t
ask the jury to make any findings on the issue of refusal. Id. The
instruction at issue in Cox read as follows: “If a person refuses to
submit to such chemical test, then the jury may consider such
refusal along with all other competent evidence in determining the
Defendant’s guilt or innocence.” Id.

30
appellate opinions when assessing whether the record supported an

administrative law judge’s finding of refusal). The majority opinion

distinctly illustrates the complexity of this determination. See

supra ¶¶ 10-11.

¶ 55 Finally, even if it were proper to ask the jury to make a refusal

finding and the meaning of that term doesn’t require a definition or

further direction, nothing in the instructions the court gave advised

the jury of the burden of proof that it was to apply when making

this collateral finding of refusal. The court did instruct the jury

that the burden was on the prosecution to prove “all of the

necessary elements” of a charged offense beyond a reasonable

doubt. See COLJI-Crim. E:03 (2021) (“The burden of proof is upon

the prosecution to prove to the satisfaction of the jury beyond a

reasonable doubt the existence of all of the elements necessary to

constitute the crime charged.”). But, as noted before, refusal isn’t

an element of DUI or DWAI. And nothing else in the instructions

31
guided the jury on the burden of proof applicable to its refusal

finding.

II. How Can the Refusal Instruction the Trial Court Gave Be
Fixed?

¶ 56 Identifying the serious problems with the instruction given at

trial should come with the responsibility of suggesting a fix.

Unfortunately, I don’t have one that readily comes to mind (except,

perhaps, faithfully cleaving to language that has previously survived

appellate scrutiny). But even that has its perils. Cf. Garcia v.

People, 2019 CO 64, ¶ 22 (even following the model instructions

doesn’t always provide “safe harbor that insulates instructional

error from reversal”). The best I can do is offer an oft overlooked

option for consideration on remand: don’t give a refusal instruction

at all. I offer this suggestion for several reasons.

¶ 57 First, the Expressed Consent Statute doesn’t require a refusal

instruction. That statute simply provides that if a defendant

refuses or fails to cooperate with chemical testing, evidence of such


Because I don’t think it’s proper to ask the jury to make a finding
on the issue of refusal in this context, I don’t reach — and offer no
opinion regarding — what the proper burden of proof for a jury
finding of refusal would be.

32
refusal shall be admissible at the defendant’s criminal trial for DUI

or DWAI:

If a person refuses to take or to complete, or to
cooperate with the completing of, any test or
tests as provided in section 42-4-1301.1 and
such person subsequently stands trial for DUI
or DWAI, the refusal to take or to complete, or to
cooperate with the completing of, 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 to take or to complete, or
to cooperate with the completing of, any test or
tests.

§ 42-4-1301(6)(d) (emphasis added); see also Cox v. People, 735

P.2d 153, 159 (Colo. 1987) (noting that the effect of this statute “is

to allow admission of evidence of refusal in every case without a

judicial determination of relevancy on a case-by-case basis”). It

doesn’t say that the jury must be instructed that it may draw any

particular inference. Indeed, the statute doesn’t reference an

instruction at all.

¶ 58 Second, no reported case holds that a refusal instruction is

required or necessary. To be sure, it’s well established that it isn’t

improper for a trial court to instruct a jury in a DUI or DWAI case

that it may consider “refusal along with all other competent

33
evidence” in determining a defendant’s guilt or innocence. Cox, 735

P.2d at 155; see also, e.g., People v. Mersman, 148 P.3d 199, 201

(Colo. App. 2006) (“[I]t is proper to instruct a jury that it can

consider a driver’s refusal to take a blood or breath test, along with

other evidence, in determining his or her guilt of driving under the

influence.”). But neither Cox nor its progeny stands for the

proposition that such an instruction must or even should be given.

¶ 59 Third, courts don’t generally ask juries to make predicate

findings before they can consider evidence, as the trial court did

here. Our law is replete with circumstances where there are factual

predicates to the admission of evidence (even if we don’t always

think of them as such) — a defendant’s confession must be freely

and voluntarily given, a statement must satisfy a hearsay exception,

and a document must be authentic, just to name a few. In all of

those examples, it’s the court and not the jury that makes the

predicate finding. See, e.g., People v. Castro, 159 P.3d 597, 600

(Colo. 2007) (voluntariness involves questions of fact to be decided

by the trial court); People v. Fuller, 788 P.2d 741, 744 (Colo. 1990)

(before admitting a hearsay statement, the trial court should

establish that the statement satisfies the prerequisites to

34
admissibility); People v. Crespi, 155 P.3d 570, 573-74 (Colo. App.

2006) (whether a proper foundation for authentication has been

established is a matter within the sound discretion of the trial

court). In none of those examples — nor any others that come to

mind — do we ask the jury to revisit the court’s determination as a

precondition to its consideration of the evidence.

¶ 60 Fourth, courts don’t generally tell jurors that they can

consider evidence for a particular purpose. Cf. People v. Garcia,

2021 COA 65, ¶ 46 (“[I]nstructions that emphasize specific evidence

are generally disfavored.”) (cert. granted Apr. 11, 2022). And when a

court does instruct jurors that they can consider evidence for a

specific purpose, it’s almost always because their consideration of

the evidence is limited to that identified purpose. See, e.g., People v.

Spoto, 795 P.2d 1314, 1321 (Colo. 1990) (limiting instructions

alleviate the risk that the jury will use testimony for a prohibited

purpose). Under the Expressed Consent Statute, evidence of

refusal isn’t admitted for a limited purpose. See § 42-4-1301(6)(d)

(providing that if a driver refuses a chemical test, “the refusal . . .

shall be admissible into evidence at the trial”). And neither the

35
instruction given at trial nor the one authorized in Cox is a limiting

instruction.

¶ 61 Simply put, a special instruction isn’t required for the jury to

draw — or for the prosecutor to highlight — reasonable inferences

about a defendant’s guilt or innocence of driving under the

influence from evidence of the defendant’s refusal. See Fitzgerald v.

People, 2017 CO 26, ¶ 21 (noting that “refusal is conduct that

potentially shows a consciousness of guilt” (citing Cox, 735 P.2d at

158-59)); Domingo-Gomez v. People, 125 P.3d 1043, 1049 (Colo.

2005) (“In closing argument to the jury, the prosecutor may argue

all reasonable inferences from evidence in the record.” (quoting ABA

Standards for Crim. Just., Prosecution Function & Def. Function

§ 3-5.8(a) (3d ed. 1993))).

III. Conclusion

¶ 62 My note of caution is this: crafting a refusal instruction is a

perilous endeavor, particularly when the fact of refusal is contested.

Under such circumstances, not giving a refusal instruction at all

should be on the table. In my view, omitting such an instruction

comports with the Expressed Consent Statute, doesn’t impair the

prosecutor’s latitude to argue that the jury should draw an adverse

36
inference from the evidence of the defendant’s refusal, and avoids

the disfavored practice of giving instructions that highlight

particular evidence.

37