dissenting.
The substantive issue in this appeal is whether the express consent statute, section 42-4-1301.1, C.R.S. (2010), and the parallel express consent provision in the vehicular assault statute, section 18-8-205(4)(a), C.R.S. (2010), require a police officer to request a driver's cooperation in the completion of a blood sample test before ordering involuntary testing. The majority claims it "cannot reasonably interpret" the statutory scheme to require a police officer to request a driver's cooperation in performing a blood draw. Maj. op. at 1162. I respectfully disagree.
The plain language of both the express consent and vehicular assault statutes require an officer to extend a request to a driver to cooperate in testing. See CLPF-Parkridge One, L.P. v. Harwell Invs., Inc., 105 P.3d 658, 660 (Colo.2005) ("If the statutory provisions are clear, we apply their plain and ordinary meaning."). Section 42-4-1301.1(2)(a)(I) plainly states a driver must cooperate in testing, "when so requested and directed by a law enforcement officer having probable cause...." Section 18-3-205(4)(a) also requires an officer to request a driver's cooperation in testing:
[Tlhe person, upon the request of the law enforcement officer, shall take, and complete, and cooperate in the completing of any test or tests of the person's blood, breath, saliva, or urine for the purpose of determining the alcoholic or drug content within his or her system.
(emphasis added). The combined effect of these two statutes is to require an officer to request a driver's cooperation before ordering involuntary testing.
Neither section 42-4-1301.1(8) nor the statutory scheme, read as a whole, renders this interpretation unreasonable. Section 42-4-1301.1(8) provides, in relevant part, that if the driver refuses to cooperate in taking a test, the officer may order involuntary testing:
No law enforcement officer shall physically restrain any person for the purpose of obtaining a specimen of such person's blood, breath, saliva, or urine for testing except when the officer has probable cause to believe that the person has committed . vehicular assault pursuant to section 18-3-205(1)(b), C.R.S., and the person is refusing to take or to complete, or to cooperate in the completing of, any test or tests, then, in such event, the law enforcement officer may require a blood test.
Based on this section, the majority concludes that officers "do not need to obtain a driver's consent prior to drawing his blood when they have probable cause that the driver committed vehicular assault under the influence of alcohol or drugs...." Maj. op. at 1162. The majority then reasons that it would be unreasonable to require the police to request the driver's cooperation given that the police can "physically restrain the driver and perform the draw anyway." Id. The majority thus concludes that "the statutory scheme, read as a whole, does not evince any legislative intent to" require officers to request a driver's cooperation prior to ordering involuntary testing. Id.
The majority's statutory interpretation runs contrary to the plain text of the statute. Section 42-4-1301.1(8) does eliminate the need for an officer to obtain the driver's consent prior to ordering involuntary testing.1 Obtaining a driver's consent to testing is, however, distinet from requesting a driver's cooperation in testing. Sections 42-4-1301.1(2) and 18-8-205(4)(a) make this distinction explicit by requiring an officer to "request" the driver's cooperation. Only if the driver "is refusing to take or to complete, or to cooperate in the completing of, any test or tests," § 42-4-1301.1(3), may the officer then order involuntary testing. See also § 18-3-205(4)(a) ("If the person refuses to take, or to complete, or to cooperate in the completing of any test or tests, the test or tests may be performed at the direction of a law enforcement officer having probable cause, without the person's authorization or consent."). The plain text of the statute thus permits the police to order involuntary testing only after requesting the driver's cooper*1164ation and only if the driver is refusing to cooperate.
Nonetheless, despite this clear statutory scheme, the majority jumps from its conclusion that an officer does not need to obtain the driver's consent to its conclusion that it would be unreasonable to require an officer to request a driver's cooperation. As a result, the majority overlooks the express statutory language requiring an officer to "request" a driver's cooperation in completing a blood test. See § 42-4-1801.1(2); § 18-3-205(4)(a). Similarly, the majority effectively deletes the requirement that the driver must "refuse" to cooperate in testing before the officer may physically restrain the driver and order testing. See § 42-4-1801.1(8); 18-3-205(4)(a). As a result, the majority's interpretation of the statutory scheme contradicts the plain language of the statute and our principles of statutory interpretation. People v. Cross, 127 P.3d 71, 73 (Colo.2006) ("We do not add or subtract statutory words that contravene the legislature's obvious intent.").
The majority attempts to minimize its deletion of the statutory requirement that an officer requests a driver's cooperation in testing. The majority explains that there is no Fourth Amendment requirement that the police ask for the consent of a driver suspected of vehicular assault before drawing his blood. Maj. op. at 1161. The majority thus criticizes the district court for reading such an "extra-constitutional" requirement into the statutory scheme. Id. at 1161. This argument, however, misses the point As the majority rightly notes, this case is premised solely on the "non-constitutional rights afforded to Smith under the express consent statute." Maj. op. at 1160 (citations omitted). The principal issue then is whether the express consent and vehicular assault statutes require the police to request a driver's cooperation in testing, not whether the Fourth Amendment requires such a request.
Instead of adopting the majority's flawed statutory interpretation, I would track the statutory language and harmonize sections 42-4-1801.1 and 18-8-205(a)(a) by requiring officers to request a driver's cooperation in testing prior to ordering involuntary testing. Only if the driver then refuses to cooperate may the officer then order involuntary testing. In the instant case, however, the officer did not request Smith's cooperation in taking a blood draw. Rather, the officer ordered a nurse to draw Smith's blood. The officer's failure to request the defendant's cooperation prior to ordering the blood draw violates the provisions of sections 42-4-1801.1 and 18-3-205(4)(a). Accordingly, I would affirm the trial court's order suppressing the evidence. See Turbyne v. People, 151 P.3d 563, 569 (Colo.2007) (court retains discretion to suppress evidence).
I am authorized to say that Justice MARQUEZ joins in this dissent.
. To the extent People v. Maclaren, 251 P.3d 578, 580-81 (Colo.App.2010) (selected for official publication), requires a driver's consent, i is misplaced.