concurring in part and dissenting in part.
I concur with the majority's affirmation of the trial court's suppression of Rodger Null's incriminating statements. However, I write separately because I conclude that the majority's discussion of Colorado's express consent statute, § 42-4-1801.1, C.R.S. (2009), and 'our decision in Turbyne v. People, 151 P.3d 563 (Colo.2007), is incomplete on the issue of law enforcement diligence in providing a driver with his or her choice of a blood test. In the context of this original proceeding, affirmation of the trial court's suppression of Null's refusal to take a breath test and its dismissal of the DUI charge are premature.
This case presents our first opportunity to construe the 2007 amendment to the express consent statute codifying the extraordinary cireumstances exception. Ch. 261, see. 1, § 42-4-1801.1, 2007 Colo. Sess. Laws 1022, 1023-24. In my view, the statute and our prior decisions require us to consider law enforcement diligence in determining the appropriate sanction for police noncompliance with the statute.
Dismissal of the charges against a defendant is a drastic remedy that may be appropriate in some cases but not in others. Turbyne, 151 P.3d at 569-70. Our case law requires that dismissal of a DUI charge is an appropriate sanction for police noncompliance with the express consent statute only "when the police have no reasonable protocol in place to obtain and complete the blood test under routine cireumstances, or when the blood test is not administered and there is mo showing of a good faith effort by the arresting officer to follow that protocol." Id. at 569 (emphasis added).
Under the express consent statute and our decisions, the established protocol upon which law enforcement relies must be reasonably calculated to obtain a timely blood draw, given reasonably anticipated exigen-cles, and law enforcement must exercise a degree of diligence in complying with that protocol in any given case. See § 42-4-1301.1(2)(a.5)(I); Turbyne, 151 P.3d at 569; Riley v. People, 104 P.3d 218, 221-22 (Colo.2004); People v. Gillett, 629 P.2d 613, 618 n. 9 (Colo.1981). For example, if the ambulance service with which law enforcement has contracted lacks adequate response capability to cover law enforcement's needs, in addition to the needs of other customers, the protocol fails to comply with the statutory requirement that law enforcement, in the absence of extraordinary cireumstances, hon- or a driver's choice of a blood test. Further, law enforcement's failure to abide by a driver's choice must not result from its failure to make a good faith effort to follow that protocol.
In this case, the fact that law enforcement twice attempted to obtain a response from the ambulance service is not sufficient proof of a good faith effort to follow an established and adequate protocol because the record lacks any proof of law enforcement's diligence in attempting to ascertain the reason for the service's non-response. Absent such proof in the record, suppression of Null's refusal to take a breath test and dismissal of the DUI charge may be appropriate sanc*683tions under Turbyne. However, without further findings regarding law enforcement's diligence in determining the reason for the ambulance service's non-response, I find incomplete and premature the majority's analysis affirming suppression of Null's refusal to take a breath test and dismissal of the DUI charge. On remand, the trial court should allow the prosecution to present additional evidence regarding law enforcement's good faith effort to abide by its protocol.
Accordingly, I concur with the majority's affirmation of the suppression of Null's incriminating statements, but I do not join in the judgment affirming suppression of Null's refusal to take a breath test and dismissal of the DUI charge. In my view, the rule in this original proceeding should remand the case to the trial court for further findings. Thus, I respectfully dissent in part.