v. Ambrose , 2020 COA 112 ( 2020 )

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
July 23, 2020
2020COA112
No. 18CA1557, People v. Ambrose — Crimes — DWAI; Vehicles
and Traffic — Alcohol and Drug Offenses — Certification of
Breath Test Instruments; Constitutional Law — Sixth
Amendment — Confrontation Clause
As a matter of first impression in Colorado and consistent with
other jurisdictions, a division of the court of appeals holds that a
“working order” certificate generated by an Intoxilyzer 9000 (I-9000)
machine is not testimonial and does not implicate a defendant’s
confrontation rights. The division concludes that such certificates
are admissible if they comply with the requirements of section 42-4-
1303, C.R.S. 2019, and that evidence related to the machine’s
reliability goes to the weight of the evidence, not its admissibility.
The division also concludes that a deputy’s opinion that the I-
9000 was working properly constitutes an expert opinion that was
erroneously admitted as a lay opinion, but that any error was
harmless.
Finally, the division rejects the remaining contentions that the
trial court erroneously (1) found the arresting officer had reasonable
suspicion; (2) failed to remove a biased juror for cause; (3) found the
prior driving under the influence convictions a sentence enhancer
rather than an element of the offense; (4) denied an evidentiary
hearing on the admissibility of the breath test result; and (5)
violated double jeopardy by imposing the persistent drunk driver
surcharge after sentencing.
COLORADO COURT OF APPEALS 2020COA112
Court of Appeals No. 18CA1557
Rio Blanco County District Court No. 17CR71
Honorable Anne K. Norrdin, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
William Edward Ambrose,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV
Opinion by JUDGE FREYRE
Lipinsky, J., concurs
Terry, J., concurs in part and dissents in part
Announced July 23, 2020
Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Meredith E. O’Harris, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 In this impaired driving case, we are asked to decide a novel
issue related to the Intoxilyzer 9000 machine (I-9000). Each time
the I-9000 is used to measure a person’s breath alcohol content
(BAC), it generates a BAC result and a separate document that
certifies the machine is working properly and is certified for use
during a specific range of dates. The question presented here is
whether that “working order” certificate is testimonial and
implicates a defendant’s confrontation rights under the Sixth
Amendment to the United States Constitution. We conclude,
consistent with every state to have considered this issue, that this
certificate is not testimonial and, thus, does not implicate the
Confrontation Clause.
¶2 Defendant, William Edward Ambrose, appeals the judgment
entered after a jury convicted him of felony driving while ability
impaired (DWAI). He contends that the trial court reversibly erred
by (1) finding the arresting officer had reasonable suspicion; (2)
failing to remove a biased juror for cause; (3) refusing to submit the
issue of prior alcohol convictions to the jury to determine beyond a
reasonable doubt; (4) failing to grant an evidentiary hearing on the
admissibility of the I-9000 breath test results; (5) allowing a
1
deputy’s expert testimony disguised as lay testimony concerning the
I-9000’s operations; (6) admitting the I-9000 certificate document
contrary to the relevant statute’s requirements and in violation of
his confrontation rights; and (7) imposing the persistent drunk
driver surcharge after sentencing in violation of his right to be free
from double jeopardy. We discern no reversible error and affirm the
judgment.
I. Factual Background
¶3 While on patrol and stopped in a highway pullout, Deputy
Corey Dilka saw a car pass him with a dimly lit left taillight. He
followed the car and as he got closer, he no longer saw any light
coming from the left taillight. Instead, he saw a steady white light.
Believing a traffic infraction had occurred, Deputy Dilka activated
his emergency lights, pulled the vehicle over, and contacted Mr.
Ambrose, who was driving.
¶4 While speaking with Mr. Ambrose, Deputy Dilka detected “an
odor of an unknown alcoholic beverage” coming from the vehicle
and saw that Mr. Ambrose’s eyes were glassy. After learning from
dispatch that Mr. Ambrose had active restraints on his driver’s
license in other states, Deputy Dilka asked Mr. Ambrose to step out
2
of the car. Deputy Dilka again detected an odor of an alcoholic
beverage, this time coming from Mr. Ambrose.
¶5 Mr. Ambrose subsequently consented to performing voluntary
roadside maneuvers. After observing several clues of impairment,
Deputy Dilka placed Mr. Ambrose under arrest on suspicion of
driving under the influence. Mr. Ambrose agreed to a breath test,
which revealed a BAC of 0.063.
¶6 As relevant here, prosecutors charged Mr. Ambrose with a
count of felony DWAI (felony fourth offense) and driving without a
valid license.1 The jury convicted him of DWAI and acquitted him of
driving without a valid license. In a bench trial, the trial court
found that the prosecution had established the existence of three
prior convictions for alcohol-related offenses, thereby elevating Mr.
Ambrose’s DWAI conviction from a misdemeanor to a class 4 felony.
The trial court sentenced Mr. Ambrose to three years in community
corrections, but it said nothing about the persistent drunk driver
1 The People initially charged Mr. Ambrose with failure to provide
insurance and failure to display proper taillights as well. Before
trial, the prosecution dismissed the taillight violation, and during
trial, the court dismissed the failure to provide insurance count.
3
surcharge at the hearing. The mittimus, however, reflected this
surcharge.
II. Reasonable Suspicion
¶7 Mr. Ambrose first contends the trial court erroneously found
that Deputy Dilka had reasonable suspicion to initiate a traffic stop.
He moved to suppress evidence of impairment obtained as a result
of the stop, but the trial court denied his motion. Considering the
totality of the circumstances, we discern no error.
A. Standard of Review and Relevant Law
¶8 A trial court’s ruling on a motion to suppress presents a mixed
question of fact and law. People v. Montante, 2015 COA 40, ¶ 59.
We defer to the court’s findings of fact if they are supported by the
record, and we review de novo the court’s legal conclusions. Id.
¶9 The Fourth Amendment to the United States Constitution
protects against unreasonable searches and seizures. “A
warrantless search and seizure is unreasonable unless it is justified
by one of the few, specifically established exceptions to the Warrant
Clause of the Fourth Amendment.” People v. Revoal, 2012 CO 8,
¶ 10.
4
¶ 10 An investigatory stop is permitted if the officer has “a
reasonable suspicion that criminal activity has occurred, is taking
place, or is about to take place.” Id. (citation omitted). “Reasonable
suspicion is both a qualitatively and quantitatively lower standard
than probable cause. That is, it can be supported both by less
information and by less reliable information than is necessary to
establish probable cause.” People v. King, 16 P.3d 807, 813 (Colo.
2001).
¶ 11 To determine whether an investigatory stop is valid, a court
must consider the facts and circumstances known to the police
officer at the time of the stop. Revoal, ¶ 11. To justify an
investigatory stop, an officer “must be able to point to specific and
articulable facts which, taken together with rational inferences from
those facts, reasonably warrant that intrusion.” Terry v. Ohio, 392
U.S. 1, 21 (1968). An “unarticulated hunch” is not sufficient.
Revoal, ¶ 11 (citation omitted). This inquiry focuses on an
“objective analysis of whether a reasonable, articulable suspicion
exists and not on the subjective intent of the officer.” People v.
Reyes-Valenzuela, 2017 CO 31, ¶ 12.
5
B. Analysis
¶ 12 Here, Deputy Dilka had reasonable suspicion to stop Mr.
Ambrose for a suspected motor vehicle equipment violation.
Section 42-4-215(6), C.R.S. 2019, provides that “[a]ny motor vehicle
may be equipped with not more than two back-up lamps either
separately or in combination with other lamps, but no such back-
up lamp shall be lighted when the motor vehicle is in forward
motion.” Deputy Dilka testified that once he got behind Mr.
Ambrose’s car, he saw that the left taillight emitted a steady white
light instead of a red light. The officer’s observation of a white light
coming from the area where the backup light was located was
enough to justify the stop. See People v. Chavez-Barragan, 2016
CO 16, ¶ 10 (“Suspicion of even a minor traffic offense can provide
the basis for a stop.”).
¶ 13 We are not persuaded by Mr. Ambrose’s argument that the
stop was unreasonable because Deputy Dilka testified that he
stopped Mr. Ambrose for a different equipment violation under
section 42-4-206(1), C.R.S. 2019. That statute says that “every
vehicle registered in this state and manufactured or assembled after
January 1, 1958, must be equipped with at least two tail lamps
6
mounted on the rear.” § 42-4-206(1). Mr. Ambrose argues that
because his vehicle displayed Wisconsin plates and presumably was
not registered in Colorado, Deputy Dilka did not have a reasonable
articulable suspicion to initiate a traffic stop. We disagree.
¶ 14 As our supreme court has reiterated, the reasonable suspicion
standard is an objective one, and is not one that focuses on the
officer’s subjective intent. See Reyes-Valenzuela, ¶ 12. Deputy
Dilka’s observation of a continually illuminated white light supports
an objective belief that Mr. Ambrose’s car may have had a back-up
light that was lit even though the vehicle was moving forward,
contrary to section 42-4-215(6) (“[N]o such back-up lamp shall be
lighted when the motor vehicle is in forward motion.”). Indeed, a
police officer does not have to observe a traffic violation to initiate a
stop; the officer can also initiate a stop if the officer has a
“reasonable articulable suspicion that a traffic or equipment
violation has occurred or is occurring.” People v. Johnston, 2018
COA 167, ¶ 20 (quoting United States v. Botero-Ospina, 71 F.3d
783, 787 (10th Cir. 1995)). The existence of out-of-state plates does
not alter the analysis because section 42-4-215(6) does not require
the vehicle to be registered in Colorado.
7
¶ 15 Since we conclude that Deputy Dilka had a reasonable
suspicion to initiate a traffic stop under section 42-4-215(6), we
need not address Mr. Ambrose’s remaining arguments concerning
the mistake of law exception. See People v. Curtis, 2014 COA 100,
¶ 12 (applying the principle of judicial restraint: “if it is not
necessary to decide more, it is necessary not to decide more”)
(citation omitted).
III. Biased Juror
¶ 16 Mr. Ambrose next contends that the trial court erroneously
denied his challenge for cause to Juror C.J. Specifically, he faults
the court for failing to rehabilitate or otherwise ensure Juror C.J.’s
ability to be fair and impartial after she indicated (by raising her
hand) that (1) she agreed it was always wrong to drive after having a
drink and (2) a person accused of doing something wrong should
explain himself or herself. Based on our consideration of the entire
voir dire, we discern no reversible error with respect to the first
point, and we decline to consider the second point because it is
raised for the first time on appeal.
8
A. Additional Facts
¶ 17 The trial court began voir dire by reading pertinent rules of law
(including the presumption of innocence and the burden of proof)
and inquiring about the statutory disqualifications for jury service.
At the end of this process, the court asked, “Is there anyone who
wants to bring anything to my attention? No hands are raised.”
¶ 18 The prosecutor then inquired about the prospective jurors’
ability to follow the law, asking whether anyone would just say to
themselves, “I’m going to go ahead and, and just say this shouldn’t
be a crime” or “I’m not going to follow what I don’t believe in.” Juror
C.J. did not raise her hand.
¶ 19 The prosecutor then asked, “Has anyone here ever had to take
away somebody’s keys?” Juror C.J. raised her hand and explained
that she once worked as a bartender and had taken patrons’ keys
away. When asked what helped her make that decision, Juror C.J.
responded, “Observation and erring on the side of safety.”
¶ 20 No prospective jurors raised their hands after the prosecutor
asked them whether they felt so strongly about alcohol that they
necessarily would render a guilty verdict, or whether anyone did not
trust law enforcement.
9
¶ 21 Defense counsel began voir dire by asking the panel members
if they “think[] that it’s never okay or not okay to have a beer and
then go drive a car?” Several prospective jurors, including Juror
C.J., raised their hands. Counsel then followed up with a different
juror, Juror R.N., in the following colloquy:
[Counsel]: So [Juror R.N.], I want to ask you a
question. If you’re told that there’s a rule in
Colorado, a law in Colorado that in some
circumstances it is legal, it is not illegal to
have a drink and then get in a car. That
sounds to be contrary to what your life beliefs
are. Is that fair?
[Juror R.N.]: Yes.
[Counsel]: Okay. And if you were asked to
raise your hand and swear an oath that you
could follow that rule, is that something that
you would struggle with?
[Juror R.N.]: Probably —
[Counsel]: Okay.
[Juror R.N.]: — yeah.
[Counsel]: And thank you for your honesty.
And again, this is what this whole process is
about. Is talking through stuff like that. So I
really appreciate that. Is it fair to say some
little defense lawyer isn’t going to change your
mind about that thinking[?] You’ve had this
belief for 40 years.
[Juror R.N.]: Yes.
10
[Counsel]: Okay. Fair to say that whatever he
says, he’s not going to change your mind about
your beliefs.
[Juror R.N.]: No.
[Counsel]: And even the Judge. Fair to say
that if she tells you otherwise, these are your
thoughts right now.
[Juror R.N.]: No, because mine’s based on
actually a higher calling. My Christianity. I, I
believe that you’re responsible for your own
actions. Anybody.
[Counsel]: Fair enough. And I think that’s —
[Juror R.N.]: (Indiscernible).
[Counsel]: -- that’s very commendable. And so
this is something that goes even deeper to you.
It’s —
[Juror R.N.]: Yes.
....
[Counsel]: Okay. Well, I appreciate that, Juror
R.N. Who here agrees with [Juror R.N.] that if
they’re told that rule, that in some
circumstances you can drink and you can
drive a car, it’s not illegal, that conflicts with
what you believe? Who agrees with [Juror
R.N.]?
(Emphasis added.) Juror C.J. did not raise her hand in response to
this last question. And defense counsel never questioned Juror
C.J. further concerning her earlier raised hand.
11
¶ 22 Later, defense counsel asked about a defendant’s right to
remain silent and said, “If you’re accused of doing something
wrong, who thinks you should explain yourself? I see some head
nodding. I want to see a hand raised.” Juror C.J. was among those
jurors who raised their hands, but defense counsel never asked her
any further questions.
¶ 23 During the subsequent bench conference, defense counsel
said, “I challenge [C.J.] for cause on the same grounds [as R.N.]. I
did not get as much information from her, but she did raise her
hand and agree with [R.N.] with the impairment, so I make the
same constitutional and statutory motion for cause on [C.J.].”
Defense counsel did not challenge Juror C.J. based on the
defendant’s right to remain silent.
¶ 24 Concerning Juror C.J., the prosecutor responded:
[C.J.], the mere fact that she agreed with some
other people [sic]. There was no statement,
[that she] could not follow the law. There was
no ultimate statement that actually conflicts or
would bring about [sic]. It’s just [defense
counsel’s] gut feeling that he thinks maybe she
couldn’t. She needs to actually be confronted
with the, the idea that she couldn’t follow the
law and say that she couldn’t follow the law.
And that was not the case with [C.J.].
12
¶ 25 The trial court agreed with the prosecution and said:
With regard to [C.J.], while she raised her
hand in response to a question (indiscernible)
she was not specifically asked about
(indiscernible), nor did she specifically state
[that] she would not follow the law. I can’t find
just by her — her raised [hand] that she is
subject to a cause challenge, to a valid cause
challenge (indiscernible). [The challenge to
C.J.] is denied.
¶ 26 After voir dire, both parties exercised peremptory challenges to
excuse several jurors. The defense did not exercise a peremptory
challenge to remove Juror C.J.
B. Standard of Review and Law
¶ 27 We will overturn a trial court’s ruling on a challenge for cause
only upon an affirmative showing that the court abused its
discretion, Carrillo v. People, 974 P.2d 478, 485 (Colo. 1999); that
is, only if there is no evidence in the record to support the ruling,
People v. Richardson, 58 P.3d 1039, 1042-43 (Colo. App. 2002).
This is a “very high standard of review” that accords deference to
the trial court’s superior ability to assess a potential juror’s
credibility, demeanor, and sincerity. People v. Young, 16 P.3d 821,
824 (Colo. 2001) (quoting Carrillo, 974 P.2d at 485-86); Morrison v.
People, 19 P.3d 668, 672 (Colo. 2000).
13
¶ 28 In determining whether a court abused its discretion in ruling
on a challenge for cause, we must review the entire voir dire of the
prospective juror. Carrillo, 974 P.2d at 486. If the trial court
abused its discretion, we must conduct an “outcome-determinative”
analysis to determine whether the error warrants reversal, if the
defendant used a peremptory challenge to excuse the wrongful
juror. Abu-Nantambu-El, ¶ 22. However, if the defendant fails to
use a peremptory challenge to dismiss a biased juror, and the juror
serves on the jury, the erroneous seating of the biased juror is
structural error requiring reversal. See Richardson v. People, 2020
CO 46, ¶ 28.
¶ 29 To protect a defendant’s right to an impartial jury, a trial court
must excuse prejudiced or biased persons from the jury. See
§ 16-10-103(1)(j), C.R.S. 2019; Nailor v. People, 200 Colo. 30, 31-32,
612 P.2d 79, 80 (1980). “Actual bias is a state of mind that
prevents a juror from deciding the case impartially and without
prejudice to a substantial right of one of the parties.” People v.
Macrander, 828 P.2d 234, 238 (Colo. 1992), overruled on other
grounds by Novotny, 2014 CO 18.
14
¶ 30 When a prospective juror makes a statement evincing bias,
she may nonetheless serve if she agrees to set aside any
preconceived notions and make a decision based on the evidence
and the court’s instructions. People v. Phillips, 219 P.3d 798, 801
(Colo. App. 2009). It is within the trial court’s discretion to accept a
juror’s statements that she would base her decision on the evidence
presented at trial. See Carrillo, 974 P.2d at 485.
¶ 31 A juror who initially misunderstands the law should not be
removed for cause if, after explanation and rehabilitative efforts, the
court believes that she can render a fair and impartial verdict based
on the instructions given by the judge and the evidence presented
at trial. People v. Clemens, 2017 CO 89, ¶ 16. The court must
examine the juror’s statements or silence in light of the totality of
the circumstances. Id. at ¶ 20. “[A] prospective juror’s silence in
response to rehabilitative questioning constitutes evidence that the
juror has been rehabilitated when the context of that silence
indicates that the juror will render an impartial verdict according to
the law and the evidence submitted to the jury at the trial.” Id. at ¶
19.
15
C. Preservation
¶ 32 The People concede that Mr. Ambrose preserved the first issue
related to the drinking and driving question. However, they argue
that defense counsel never challenged Juror C.J. for cause based
on the second question concerning the right to remain silent. Mr.
Ambrose responds that he preserved both issues by asking Juror
C.J. to be excused for cause because she was biased. Because
defense counsel alleged bias only with regard to the first issue, and
never mentioned or argued Juror C.J.’s raised hand to the right to
remain silent question, we agree with the People that the first issue
is preserved, and the second issue is not.
¶ 33 If a party fails to raise a matter pertaining to the qualifications
and competency of a prospective juror before the jury is sworn in,
the matter “shall be deemed waived.” Crim. P. 24(b)(2). Hence,
when a party fails to preserve a for-cause challenge, the appellate
court will “decline to address for the first time on appeal a different
ground that was not clearly brought to the attention of the trial
court and opposing counsel.” People v. Coughlin, 304 P.3d 575, 580
(Colo. App. 2011). Because defense counsel failed to preserve a
challenge to Juror C.J. based on the right to remain silent question
16
before the jury was sworn, we conclude that it is waived and decline
to consider it. See People v. Cevallos-Acosta, 140 P.3d 116, 122
(Colo. App. 2005) (the “defendant abandoned his challenge for
cause to [a prospective juror] by failing to [renew his] request that
the trial court grant or deny [the challenge] before exercising a
peremptory challenge to excuse her”); People v. Coleman, 844 P.2d
1215, 1218 (Colo. App. 1992) (declining to address the defendant’s
for-cause challenge on the grounds of bias “because defendant did
not present the issue of any actual, or implied, prejudice in the trial
court,” but instead challenged the juror on another basis).
D. Analysis
¶ 34 Based on the record before us, we are satisfied that the trial
court’s decision to deny Mr. Ambrose’s challenge for cause was not
an abuse of discretion. Although Juror C.J. raised her hand in
response to defense counsel’s question concerning whether it was
“never okay” to “have a beer and then go drive a car,” she did not
raise her hand at the conclusion of Juror R.N.’s questioning when
counsel asked whether any of the jurors agreed with Juror R.N.
And defense counsel did not further question Juror C.J. concerning
an inability to be fair. The absence of this further questioning,
17
when considered with the absence of raised hands to the
prosecutor’s questions about the panel’s ability to be fair and
impartial, leaves a record containing no evidence that Juror C.J.
was unable to be fair and impartial, or that she would be unable to
follow the law. Consequently, Juror C.J. displayed no bias or
enmity against Mr. Ambrose, and we discern no error in the court’s
ruling denying Mr. Ambrose’s challenge for cause.
IV. Felony DWAI Prior Convictions
¶ 35 Mr. Ambrose next contends that his prior driving under the
influence (DUI) convictions are an element of the offense (not a
sentence enhancer) of felony DWAI that entitled him to have a jury
decide the matter beyond a reasonable doubt.
¶ 36 We note that the supreme court granted certiorari on this
issue in Linnebur v. People, No. 18SC884, 2019 WL 3934483 (Colo.
Aug. 19, 2019) (unpublished order). However, we still must decide
the case before us.
¶ 37 We review the construction of statutes de novo. Lobato v.
Indus. Claim Appeals Office, 105 P.3d 220, 223 (Colo. 2005). A
sentence enhancement from a misdemeanor to a felony is not an
element of the offense if (1) the defendant may be convicted of the
18
underlying offense without any proof regarding the sentence
enhancer and (2) the sentence enhancement provision only
increases the potential punishment. People v. Schreiber, 226 P.3d
1221, 1223 (Colo. App. 2009).
¶ 38 The crime of DWAI is defined in section 42-4-1301, C.R.S.
2019:
A person who drives a motor vehicle or vehicle
while impaired by alcohol or by one or more
drugs . . . commits driving while ability
impaired. Driving while ability impaired is a
misdemeanor, but it is a class 4 felony if the
violation occurred after three or more prior
convictions, arising out of separate and
distinct criminal episodes, for DUI, DUI per se,
or DWAI . . . .
§ 42-4-1301(1)(b).
¶ 39 This section is virtually identical to the definitions of DUI and
DUI per se in section 42-4-1301(1)(a), (2)(a). Divisions of this court
are split as to whether prior convictions constitute sentence
enhancers or elements of the felony DUI or DWAI offense. The
divisions in People v. Jiron, 2020 COA 36, ¶ 14, People v. Quezada-
Caro, 2019 COA 155, ¶¶ 10-31, and People v. Gwinn, 2018 COA
130, ¶¶ 49-50, held that prior DUI convictions constitute a
sentence enhancer that can be proved to the court by a
19
preponderance of the evidence. A division of this court in People v.
Viburg, 2020 COA 8M, however, departed from Gwinn and
Quezada-Caro, and held that prior convictions are an element of the
felony offense that must be proved to a jury (if the defendant asks
for one) beyond a reasonable doubt. Id. at ¶¶ 6-31.
¶ 40 We decline to follow Viburg, and for the reasons stated in
Jiron, Gwinn, and Quezada-Caro, we conclude that the court did
not err by denying defendant’s motion to have a jury decide the
issue of his prior convictions.
V. Shreck Hearing
¶ 41 Mr. Ambrose next contends that the trial court erroneously
admitted I-9000 evidence without first holding a hearing to assess
its reliability under People v. Shreck, 22 P.3d 68 (Colo. 2001). We
disagree.
A. Additional Facts
¶ 42 Before trial, Mr. Ambrose requested a hearing to determine the
reliability and relevance of the I-9000 device under Shreck.
Attached to his motion were numerous press articles describing
allegations that certain I-9000 certificates in Colorado had been
fraudulently obtained and generated. He also challenged the
20
I-9000’s inner workings and the reliability of the device’s underlying
science. The trial court found as follows:
Colorado Revised Statutes 42-4-1301 requires
courts to take judicial notice of the testing
methods and of the design and operation of
testing devices, as certified by the Colorado
Department of Public Health [and]
Environment to determine a person’s alcohol
level. As recognized by the Court in People v.
Bowers, 716 P.2d 471, Colorado Supreme
Court case from 1986. Once CDPHE certifies a
methodology of testing for a device, the Court
may take judicial notice of the reliability of the
methodology and the device without the
necessity for further proof.
So here, the statutory scheme in Colorado
provides that [if a] breath device and method
[are] certified by CDPHE, the Court is to take
judicial notice of [their] reliability. The burden
is on the prosecution at trial to determine that
the testing devices were certified, were in
proper working order, and operated by a
qualified person and operated within
substantial compliance with CDPHE
regulations. If those things are satisfied, the
results are admissible. Thomas v. People, 895
P.2d 1040, Colorado 1995.
I have reviewed the defendant’s motion for a
[Shreck] hearing on the reliability and
admissibility, and I’ve reviewed the attached
news articles and [Judge Taylor’s Order] out of
Gilpin [County] from last summer related to
the device issues that occurred around the
rollout of the [I-9000s] in 2013 and used by
CDPHE of an expired — or the signature of an
21
individual who no longer worked at that
department.
Notably in Judge Taylor’s conclusion was the
statement that if the People can show the
[I-9000] was in proper working order without
the instrument certificate that was the one
with the faulty signature, the BAC results may
be admissible. Judge Taylor’s Order, while [it
is] interesting and instructive with regard to
the [I-9000] certification process and the
inadmissibility in the context of that case of an
instrument certificate, it did not address
whether a defendant is entitled to a [Shreck]
hearing on the Intoxilyzer.
Here, I do find that the breath tests in the
Intoxilyzer are not a new or novel science, such
that the Court needs to hold an evidentiary
hearing to address the reliability of the
science. Certainly[,] the case law with regard
to the admissibility about breath tests is from,
for example, Bowers came out in 1986,
Thomas came out in 1995, so we’re talking
about 25, 30 years of information regarding
the reliability of breath testing. I cannot find
that it’s a new or novel science.
I find that the admissibility and reliability of
the breath test is an issue for trial being the
prosecution must put on sufficient evidence,
as I said before, that the device was certified,
proper working order, operated by a qualified
person and in substantial compliance with
CDPHE regulations. The defendant will be
afforded the ability to object both to the
admission based on the record at trial and to
cross-examine . . . or present other evidence
that may attack the weight the jury gives
22
[indiscernible] evidence. But the defendant’s
request for a [Shreck] hearing on the breath
testing device in this case is denied.
¶ 43 The prosecutor later endorsed Deputy Dilka as an expert in
standard sobriety roadside maneuvers and the operation and
functionality of the I-9000 device. Mr. Ambrose objected to the
endorsement as untimely and reiterated his concerns under Shreck.
At a subsequent hearing, defense counsel explained that the
endorsement “calls into question how the Court could rule on a
Shreck motion regarding the . . . machine.” The court did not
readdress the Shreck issue but, instead, offered the defense a
continuance of the trial for up to one month to endorse its own
expert. The defense did not request a continuance.
B. Legal Framework and Standard of Review
¶ 44 CRE 702 governs the admissibility of expert testimony. It
states:
If scientific, technical, or other specialized
knowledge will assist the trier of fact to
understand the evidence or to determine a fact
in issue, [then] a witness qualified as an expert
by knowledge, skill, experience, training, or
education, may testify thereto in the form of an
opinion or otherwise.
23
¶ 45 Scientific evidence is admissible under CRE 702 if it is both
relevant and reliable. Shreck, 22 P.3d at 77; People v. Friend, 2014
COA 123M, ¶ 28, aff’d in part and rev’d in part, 2018 CO 90. In
determining the admissibility of expert testimony, the trial court
conducts a Shreck analysis, which requires the proponent to show
that (1) the scientific principles at issue are reasonably reliable; (2)
the witness is qualified; (3) the testimony would be helpful to the
jury; and (4) the evidence satisfies CRE 403. People v. Rector, 248
P.3d 1196, 1200 (Colo. 2011); Friend, ¶ 28. The purpose of this
inquiry is to determine whether the proffered evidence is reliable
and relevant, and for the trial court — acting as gatekeeper — to
prevent the admission of “junk” science. People v. Wilson, 2013
COA 75, ¶ 22; Estate of Ford v. Eicher, 220 P.3d 939, 942 (Colo.
App. 2008), aff’d, 250 P.3d 262 (Colo. 2011). The trial court’s
reliability inquiry should be “broad in nature and consider the
totality of the circumstances” specific to each case. Shreck, 22 P.3d
at 77.
¶ 46 When a party requests a Shreck analysis, the court may, in its
discretion, determine whether an evidentiary hearing would be
helpful. Rector, 248 P.3d at 1201. However, the trial court is not
24
required to conduct a hearing if it “already has sufficient
information to make specific findings under Shreck.” People v.
Campbell, 2018 COA 5, ¶ 41 (citation omitted). “Concerns about
conflicting theories or the reliability of scientific principles go to the
weight of the evidence, not its admissibility.” Id. at ¶ 42 (citing
Estate of Ford, 250 P.3d at 269). These concerns are mitigated by
vigorous cross-examination, presentation of contrary evidence, and
careful instruction on the burden of proof. Shreck, 22 P.3d at 78.
¶ 47 “We review a trial court’s evidentiary ruling for an abuse of
discretion.” Campbell, ¶ 38. The trial court abuses its discretion
when its ruling is “manifestly arbitrary, unreasonable, or unfair.”
Id. (citation omitted). And we review any error in denying a Shreck
hearing for nonconstitutional harmless error. Wilson, ¶ 24. An
error is harmless if a reviewing court can say with fair assurance
that, in light of the record as a whole, the error did not
substantially influence the verdict or impair the trial’s fairness. Id.
¶ 48 Section 42-4-1301(6)(c) provides that
(I) . . . [the trial court] shall take judicial notice
of methods of testing a person’s alcohol or
drug level and of the design and operation of
devices, as certified by the department of
public health and environment, for testing a
25
person’s blood, breath, saliva, or urine to
determine such person's alcohol or drug
level. . . .
(II) Nothing in this paragraph (c) prevents the
necessity of establishing during a trial that the
testing devices used were working properly and
were properly operated. Nothing in this
paragraph (c) precludes a defendant from
offering evidence concerning the accuracy of
testing devices.
(Emphasis added.)
¶ 49 In People v. Bowers, our supreme court stated that “[b]reath
tests to determine the concentration of alcohol in a suspect’s breath
have long been recognized as valid scientific evidence.” 716 P.2d
471, 473 (Colo. 1986). The court also concluded that the statute
delegated authority to the Board of Health (which was later replaced
by the Colorado Department of Public Health and Environment
(CDPHE)) to “prescribe scientifically valid procedures for chemical
testing that will not only ensure safety in the testing process
but . . . will [also] provide sufficient reliability to the testing method
as to avoid the necessity of formal evidentiary proof on this aspect
of the testing process.” Id. at 474. The requirement for courts to
take judicial notice of the methods of testing a person’s alcohol
content means “[t]he legislature obviously believed that the testing
26
methods prescribed in the rules of [CDPHE] would be reasonably
reliable, thus justifying the court in taking judicial notice of the
testing method and thereby dispensing with the requirement of
formal proof on that matter.” Id.
C. Analysis
¶ 50 We discern no abuse of discretion in the trial court’s denial of
a Shreck hearing, for two reasons. First, by employing the
mandatory word “shall,” section 42-4-1301(6)(c)(I) expressly
instructs courts to take judicial notice of the methods of testing a
person’s alcohol level as certified by CDPHE. People v. Dist. Court,
713 P.2d 918, 921 (Colo. 1986) (noting that the Colorado Supreme
Court “has consistently held that the use of the word ‘shall’ in a
statute is usually deemed to involve a mandatory connotation”).
Second, the record reflects that the I-9000 machine used in this
case was certified by CDPHE,2 and Deputy Dilka testified that the
machine was working properly.
2We note that Mr. Ambrose challenges separately whether the I-
9000 used in this case was in fact certified by CDPHE because the
certificate lacked a signature. We address that contention below.
27
¶ 51 We are not persuaded that the news articles attached to Mr.
Ambrose’s motion relating to alleged fraudulent certification of other
I-9000 machines require a different result. These issues go to the
weight of the evidence and not its admissibility and are properly
explored through cross-examination or the presentation of other
evidence. See Shreck, 22 P.3d at 78. Moreover, neither the statute
nor the trial court’s order precluded Mr. Ambrose from introducing
evidence at trial challenging the reliability of breath tests. See § 42-
4-1301(6)(c)(II).
¶ 52 Further, we are not convinced that the prosecution’s late
endorsement of Deputy Dilka as an expert witness necessitates a
different result. Mr. Ambrose does not separately challenge the
timeliness of the endorsement, so we do not consider it further.
People v. Plancarte, 232 P.3d 186, 193 (Colo. App. 2009) (declining
to consider an issue defendant did not raise in his opening brief).
And, the prosecutor never qualified Deputy Dilka as an expert at
trial. Finally, the trial court offered the defense a reasonable
remedy to any late endorsement — to continue the trial so that
defense counsel could endorse his own witness. Counsel refused
28
this offer. Accordingly, we discern no abuse of discretion in the
court’s ruling denying a Shreck hearing.
VI. Expert Versus Lay Testimony
¶ 53 Mr. Ambrose next contends that Deputy Dilka’s testimony
about the I-9000, specifically that the machine worked properly,
constituted expert testimony in the guise of lay testimony. We
conclude that any error was harmless.
A. Standard of Review and Law
¶ 54 Again, we review a trial court’s evidentiary rulings for an
abuse of discretion. Venalonzo v. People, 2017 CO 9, ¶ 15. A trial
court abuses its discretion when its ruling is unreasonable,
arbitrary, or contrary to law. Id. Preserved errors in the admission
of evidence are reviewed under the harmless error standard. People
v. Stewart, 55 P.3d 107, 124 (Colo. 2002). Such a ruling is not
reversible “unless the ruling affects a substantial right of the party
against whom the ruling is made.” Id. “If a reviewing court can say
with fair assurance that, in light of the entire record of the trial, the
error did not substantially influence the verdict or impair the
fairness of the trial, the error may properly be deemed harmless.”
Id. (citations omitted).
29
¶ 55 CRE 701 and 702 distinguish lay and expert testimony.
Under CRE 701, a lay opinion must be “(a) rationally based on the
perception of the witness, (b) helpful to a clear understanding of the
witness’[s] testimony or the determination of a fact in issue, and (c)
not based on scientific, technical, or other specialized knowledge
within the scope of [CRE] 702.” Under CRE 702, “[i]f scientific,
technical, or other specialized knowledge will assist the trier of fact
to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience,
training, or education, may testify thereto in the form of an opinion
or otherwise.”
¶ 56 A witness’s basis for his opinion and the nature of the
experiences that form such opinion distinguish lay testimony from
expert testimony. Venalonzo, ¶ 22; see Stewart, 55 P.3d at 123.
With lay opinion testimony, “courts consider whether ordinary
citizens can be expected to know certain information or to have had
certain experiences.” Venalonzo, ¶ 22 (quoting People v. Rincon,
140 P.3d 976, 982 (Colo. App. 2005)). On the other hand, expert
testimony requires experience or skills that go beyond common
experience. Id. Therefore, a trial court must look to the basis for
30
the witness’s opinion in order to determine whether it amounts to
lay or expert testimony. Id. at ¶ 23.
B. Application
¶ 57 Deputy Dilka testified about the step-by-step procedures he
followed when operating the I-9000 machine, including testing air
blanks before testing Mr. Ambrose’s breath. He also testified about
the results the machine generated at each step, including “zero”
readings for air blanks and a 0.063 reading for Mr. Ambrose’s
sample. After Deputy Dilka had described the process and results
generated, the prosecutor asked him whether it appeared to him
that the I-9000 machine used here “was working properly.” He
responded, “It does.” The prosecutor then admitted the machine-
generated report describing the data generated. See Stewart, 55
P.3d at 123 (a police officer’s testimony about his experiences and
perceptions is lay opinion testimony).
¶ 58 We acknowledge that Deputy Dilka’s opinion is arguably an
expert opinion because it was based on specialized training that he
received in the operation of the I-9000. See Venalonzo, ¶ 23 (if “the
witness provides testimony that could not be offered without
specialized experiences, knowledge, or training, then the witness is
31
offering expert testimony”); People v. Veren, 140 P.3d 131, 136
(Colo. App. 2005) (“[W]hen an officer’s opinions require the
application of, or reliance on, specialized skills or training, the
officer must be qualified as an expert before offering such
testimony.” (quoting Stewart, 55 P.3d at 123)). The prosecutor did
not qualify Deputy Dilka as an expert, however.
¶ 59 Nevertheless, we conclude that any error was harmless
because Deputy Dilka’s testimony did not substantially influence
the verdict or the fairness of the trial. First, the prosecution
presented substantial evidence of Mr. Ambrose’s impairment. See
Campbell v. People, 2019 CO 66, ¶¶ 41-42 (improperly admitting an
officer’s expert testimony about the horizontal gaze nystagmus test
was harmless because other evidence, including the defendant’s
performance on other field sobriety tests, overwhelmingly supported
the jury’s conclusion that the defendant’s ability to drive was
impaired by alcohol). Deputy Dilka described Mr. Ambrose’s glassy
eyes, an odor of alcohol on Mr. Ambrose’s person, and Mr.
Ambrose’s failure of several roadside sobriety tests, all of which are
indicative of impairment.
32
¶ 60 As well, Deputy Dilka never interpreted the I-9000’s results
and never opined that the I-9000 indicated Mr. Ambrose was
impaired. Unlike Veren, where the division found that the
improperly admitted opinion constituted the only evidence of
distribution used to convict the defendant of distribution of a
controlled substance, 140 P.3d at 140, the jury here had
substantial other evidence, beyond the breath test, from which to
determine that Mr. Ambrose was impaired to the slightest degree.
Accordingly, we discern no reversible error in the admission of
Deputy Dilka’s opinion.
VII. I-9000 Certificate
¶ 61 Mr. Ambrose next contends that the I-9000 certificate and
results are inadmissible as a matter of law because the certificate,
printed by the machine at the time of the test, lacks a signature.
So, he says, the trial court abused its discretion by admitting it. We
disagree.
¶ 62 As noted above, we review a trial court’s evidentiary rulings for
an abuse of discretion. Nicholls v. People, 2017 CO 71, ¶ 17.
¶ 63 Section 42-4-1303, C.R.S. 2019, provides as follows:
33
Official records of the department of public
health and environment relating to
certification of breath test instruments,
certification of operators and operator
instructors of breath test instruments,
certification of standard solutions, and
certification of laboratories shall be official
records of the state, and copies thereof,
attested by the executive director of the
department of public health and environment or
the director’s deputy and accompanied by a
certificate bearing the official seal for said
department that the executive director or the
director’s deputy has custody of said
records, shall be admissible in all courts of
record and shall constitute prima facie proof of
the information contained therein. The
department seal required under this
section may also consist of a rubber stamp
producing a facsimile of the seal stamped upon
the document.
(Emphasis added.) Our supreme court has held that “any
deficiency in the evidence with respect to the state board of health
certifications should be considered as to the weight to be given the
test results and not as to their admissibility.” Thomas v. People,
895 P.2d 1040, 1046 (Colo. 1995).
¶ 64 The parties do not dispute that the I-9000 certificate was not
signed by the executive director of CDPHE, or that it included the
department’s seal. Even assuming without deciding that the
statute requires a signature, we apply our supreme court’s rule that
34
any such deficiency goes to the weight of the evidence and not its
admissibility. See id. Therefore, we discern no error by the trial
court in admitting the certificate, and we need not address the
People’s or Mr. Ambrose’s statutory arguments.
VIII. Confrontation
¶ 65 Mr. Ambrose next contends that, if the I-9000 certificate is
admissible under section 42-4-1303, then it is testimonial, and the
statute violates his Sixth Amendment right to confrontation both
facially and as applied. Specifically, he argues that if section
42-4-1303 allows the prosecutor to avoid calling the state analyst
who certified the machine, without proving that the analyst was
unavailable, the statute violates his right to confront witnesses. We
are not persuaded.
A. Standard of Review
¶ 66 As previously stated, we review a court’s evidentiary rulings for
an abuse of discretion. Nicholls, ¶ 17. But possible violations of
the Confrontation Clause are reviewed de novo. Bernal v. People, 44
P.3d 184, 198 (Colo. 2002). Statutory interpretation is also
reviewed de novo. McCoy v. People, 2019 CO 44, ¶ 37.
35
¶ 67 We review preserved evidentiary errors under the harmless
error standard and confrontation violations under the constitutional
harmless error standard. Hagos v. People, 2012 CO 63, ¶¶ 11-12.
However, we review unpreserved errors — constitutional and
nonconstitutional — for plain error. Id. at ¶ 14; People v. Barry,
2015 COA 4, ¶ 65. “[U]nder plain error analysis, [the] defendant
must establish that error occurred, that the error was obvious, and
that the error’s effect is so grave that it undermines the
fundamental fairness of the trial itself and casts doubt upon the
reliability of the conviction.” Barry, ¶ 71.
B. Preservation
¶ 68 As a threshold matter, the parties dispute preservation of this
issue. Mr. Ambrose argues that he preserved the issue in his
motion for a Shreck hearing by asserting that
[t]o the extent that the People argue Colo. Rev.
Stat. §42-4-1303 permits admission of the
I-9000 results, this argument fails to take into
consideration the constitutional implications of
admitting untested, unreliable, and potentially
misleading evidence in violation of Rule 702,
403, and state and federal constitutional
guarantees of Due Process and Confrontation.
(Emphasis added.)
36
¶ 69 Mr. Ambrose also relies on counsel’s objection during trial to
admission of the I-9000 certificate and the breath test results “as
unreliable.” The People argue that this was insufficient to preserve
Mr. Ambrose’s appellate argument that admission of the working
order certificate violated his rights under the Confrontation Clause.
The trial court did not rule on the confrontation issue when it
denied defense counsel’s motion for a Shreck hearing.
¶ 70 We acknowledge that a pretrial motion, like the one here, may
preserve an evidentiary objection for appellate review “if the moving
party fairly presents the issue to the court and the court issues a
definitive ruling.” People v. Dinapoli, 2015 COA 9, ¶ 20; see also
People v. Gross, 39 P.3d 1279, 1281 (Colo. App. 2001) (“[W]here a
party objects during a pretrial hearing on a motion in limine . . . the
objector is entitled to assume that the trial court will adhere to its
initial ruling and that the objection need not be repeated.”). But a
defendant may forfeit his right to fix a constitutional error by failing
to make an adequate objection during trial. Martinez v. People,
2015 CO 16, ¶ 13. General objections are insufficient. Id. at ¶ 14.
Although no “talismanic language” is required to preserve an
argument for appeal, a party “must present the trial court with ‘an
37
adequate opportunity to make findings of fact and conclusions of
law’ on the issue.” Id. (citation omitted); see also Phillips v. People,
2019 CO 72, ¶ 12 (to preserve a claim for appellate review, the party
asserting error must have supplied the right ground for the request
and that conclusory boilerplate contentions constitute insufficient
preservation).
¶ 71 Counsel’s pretrial motion objected only to the I-9000’s results
and not to the certificate related to the machine’s proper working
condition. As well, counsel objected to the admission of the I-9000
certificate and the breath test results during trial, but only “as
unreliable,” without mentioning or arguing the Confrontation
Clause. We conclude that the motion and this objection were
insufficient to provide the trial court with a meaningful opportunity
to determine whether the I-9000 certificate was testimonial and
subject to the Confrontation Clause or whether section 42-4-1303
was unconstitutional, either facially or as applied. Therefore, we
conclude that Mr. Ambrose did not preserve the Confrontation
Clause issue as framed in the opening brief, and we review for plain
error.
38
C. Applicable Law
¶ 72 “The Sixth Amendment of the United States Constitution
affords to the accused the right ‘to be confronted with the witnesses
against him.’” Marshall v. People, 2013 CO 51, ¶ 15 (quoting U.S.
Const. amend. VI); see Colo. Const. art. II, § 16 (“In criminal
prosecutions the accused shall have the right . . . to meet the
witnesses against him face to face . . . .”). When evaluating a
potential Confrontation Clause violation, we must first determine
whether the statement at issue was testimonial. See Crawford v.
Washington, 541 U.S. 36, 68-69 (2004). Admission of a testimonial
hearsay statement against the defendant violates the Confrontation
Clause unless the declarant is unavailable and the defendant had
an opportunity to cross-examine the declarant. Id.
¶ 73 “[A]t a minimum, statements are testimonial if the declarant
made them at a ‘preliminary hearing, before a grand jury, or at a
former trial; and [in] police interrogations.’” People v. Vigil, 127 P.3d
916, 921 (Colo. 2006) (citation omitted). Three formulations of
statements qualify as testimonial in nature: (1) “ex parte in-court
testimony or its functional equivalent,” such as “affidavits, custodial
examinations, prior testimony that the defendant was unable to
39
cross-examine, or similar pretrial statements that declarants would
reasonably expect to be used prosecutorially”; (2) “extrajudicial
statements . . . contained in formalized testimonial materials, such
as affidavits, depositions, prior testimony or confessions”; and (3)
“statements that were made under circumstances which would lead
an objective witness reasonably to believe that the statement would
be available for use at a later trial.” Id. (quoting Crawford, 541 U.S.
at 51-52).
¶ 74 In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the
United States Supreme Court held that laboratory certificates
reporting the results of forensic analyses performed on substances
are functionally equivalent to affidavits. The Court determined that
the affidavits are “testimonial,” and therefore implicate a
defendant’s Sixth Amendment right to confront witnesses against
him, because they are made for the purpose of establishing some
material fact at the defendant’s trial and under circumstances that
would lead a reasonably objective witness to believe that the
statements contained therein would be available for use at a later
trial. Id. at 310-11.
40
¶ 75 Even before Melendez-Diaz, our supreme court held that
laboratory reports are testimonial and subject to the Confrontation
Clause. Hinojos-Mendoza v. People, 169 P.3d 662, 666 (Colo. 2007),
abrogated on other grounds by Phillips, ¶¶ 32-33. The court rejected
the rationale that a lab report qualifies as a business record and
that the practice of weighing an undisputed substance “merely . . .
authenticated the document.” Id. (citation omitted). Instead, the
court held that the lab report was testimonial for two reasons.
First, the “report was prepared at the direction of the police and a
copy of the report was transmitted to the district attorney’s office”;
thus, the court reasoned, there could be no serious dispute that the
report’s sole purpose was to analyze the substance found in
anticipation of a criminal prosecution. Id. at 667. Second, the
report admitted at trial established an element of the offense with
which the defendant was charged. Id. The court reaffirmed this
position a few years later. See Marshall, ¶ 15 (“The People appear to
concede, and we agree, that the [lab] report in this case was
testimonial in nature.” (first citing Bullcoming v. New Mexico, 564
U.S. 647, 664-65 (2011); then citing Hinojos-Mendoza, 169 P.3d at
667)).
41
¶ 76 However, neither our supreme court nor the United States
Supreme Court has decided whether a certificate used to establish
that an intoxilyzer machine complies with state rules and
regulations is testimonial and subject to the Confrontation Clause.
But all of the state courts that have considered this issue have
concluded that such certificates are not testimonial and do not
implicate the Confrontation Clause. We hold that the I-9000
certificate here is not testimonial and reject Mr. Ambrose’s facial
and as-applied challenges to section 42-4-1303.
D. Analysis
¶ 77 The I-9000 certificate differs from the document at issue in
Melendez-Diaz in three ways. First, the document in Melendez-Diaz
contained forensic analysis results used to prove the identity of the
illicit substance (an element of the crime) and was sworn before a
notary public by the reporting analyst. See 557 U.S. at 308-09. In
contrast, the I-9000 certificate contains no testing results, but
simply certifies that the I-9000 machine complies with CDPHE-
approved methods (not an element of a crime) to measure a
person’s BAC. See Commonwealth v. Zeininger, 947 N.E.2d 1060,
1069 (Mass. 2011) (distinguishing certificates of drug analysis
42
offered as direct proof of an element of the offense charged from
Office of Alcohol Testing certification records, which “bear only on
the admissibility or credibility of the evidence”); People v. Pealer,
985 N.E.2d 903, 907 (N.Y. 2013) (affirming breathalyzer testing
certificates are not testimonial in part because they “do not directly
inculpate defendant or prove an essential element of the charges
against him”). Moreover, the I-9000 certificate did not include a
sworn statement.
¶ 78 Second, unlike the document in Melendez-Diaz, the I-9000
certificate is not prepared in anticipation of a particular
prosecution. See State v. Bergin, 217 P.3d 1087, 1089 (Or. Ct. App.
2009) (“[T]he person who performs the test of a machine’s accuracy
does so with no particular prosecutorial use in mind, and, indeed,
there is no guarantee that the machine will ever, in fact, be used.”).
Instead, the certificate — which the I-9000 prints
contemporaneously with the breath test result — contains only the
machine’s serial number, the date range of the certificate’s validity,
and CDPHE’s seal, consistent with the statutory and regulatory
requirements. See § 42-4-1304(4), C.R.S. 2019 (requiring the state
board of health to promulgate rules and procedures for the
43
collection and testing of blood and breath samples for alcohol and
drugs). The fact that the certificate is printed contemporaneously
with the test result does not mean that it is prepared for a specific
prosecution. See Zeininger, 947 N.E.2d at 1065 (explaining that the
notation of certification at issue appeared “on the same report as
the results of the breathalyzer test”).
¶ 79 Finally, rather than proving the material fact of a person’s
BAC, the I-9000 certificate proves only that the device used to
measure a person’s BAC complies with state regulations. Dep’t of
Pub. Health & Env’t Reg. 4.1.3.2, 5 Code Colo. Regs. 1005-2
(requiring that CDPHE “certify each Evidential Breath Alcohol Test
instrument initially and annually thereafter”); Dep’t of Pub. Health
& Env’t Reg. 4.1.3.3, 5 Code Colo. Regs. 1005-2 (providing that
CDPHE will issue a certificate for each instrument after initial
certification and after each annual certification, with each
certificate reflecting the instrument serial number and the dates of
the certification period). Indeed, the I-9000 certificate in this case
did not mention Mr. Ambrose or his BAC result. See also
Commonwealth v. Dyarman, 73 A.3d 565, 569 (Pa. 2013)
(distinguishing calibration and accuracy certificates for breath test
44
machines from the certificates in Melendez-Diaz because “the
certificates at issue here did not provide any information regarding
appellant’s BAC or even refer to her”).
¶ 80 We are not persuaded that the certificate, which showed the
I-9000 was working properly, was testimonial simply because the
breath test result, contained in a separate document, permitted the
jury to infer that Mr. Ambrose was impaired. See § 42-4-
1301(6)(a)(II); see also People v. Hamilton, 2019 COA 101, ¶¶ 24-26
(time stamps and similar information that a machine generates
without human intervention are not “statements” and, thus, are not
hearsay); Cranston v. State, 936 N.E.2d 342, 345 (Ind. Ct. App.
2010) (an evidence ticket produced by a chemical breath machine is
not testimonial hearsay for purposes of the Sixth Amendment). The
I-9000 certificate merely constitutes prima facie evidence that the I-
9000 used to test Mr. Ambrose’s breath complied with CDPHE
regulations. See People v. Ortega, 2016 COA 148, ¶ 11 (attestation
used merely to authenticate phone records was not testimonial and
thus not subject to the Confrontation Clause).
¶ 81 And we agree with the decisions of other state courts that have
found similar certificates nontestimonial because they “bear a more
45
attenuated relationship to conviction.” Bergin, 217 P.3d at 1089;
see also State v. Kramer, 278 P.3d 431, 437 (Idaho Ct. App. 2012)
(Intoxilyzer 5000 certificates “were not direct proof of an element of
the crime of driving under the influence,” but were “instead
admitted as proof that the testing instrument was working
properly”); Dyarman, 73 A.3d at 570 (calibration and accuracy
certificates do not establish an element of an offense, but instead
concern “the weight to be accorded to the test results”).
¶ 82 Further, our conclusion is consistent with dictum in Melendez-
Diaz:
Contrary to the dissent’s suggestion, we do not
hold, and it is not the case, that anyone whose
testimony may be relevant in establishing the
chain of custody, authenticity of the sample, or
accuracy of the testing device, must appear in
person as part of the prosecution’s case. . . .
Additionally, documents prepared in the regular
course of equipment maintenance may well
qualify as nontestimonial records.
557 U.S. at 311 n.1 (emphasis added) (citation omitted).
¶ 83 Indeed, Mr. Ambrose has not cited, nor have we found, any
case from any jurisdiction holding that certificates similar to the
I-9000 working order certificate are testimonial and subject to the
Confrontation Clause. See Smith v. State, 791 S.E.2d 418, 422 (Ga.
46
Ct. App. 2016) (“inspection certificates are not testimonial in
nature”); Jones v. State, 982 N.E.2d 417, 428 (Ind. Ct. App. 2013)
(reaffirming prior precedents and concluding such certificates are
“nontestimonial”); State v. Benson, 287 P.3d 927, 932 (Kan. 2012)
(holding “that [a] certificate of calibration is not a testimonial
statement”); State v. Britt, 813 N.W.2d 434, 437 (Neb. 2012)
(affirming that certificate by analyst who prepared breath test
simulator solution used to test the device was not testimonial and
therefore not subject to confrontation analysis); State v. Dial, 998
N.E.2d 821, 827 (Ohio Ct. App. 2013) (a certificate of a breath test
machine using a new bottle of ethyl alcohol was not testimonial);
Anderson v. State, 317 P.3d 1108, 1122 (Wyo. 2014) (annual
certification of breathalyzer machines is not testimonial for
purposes of the Confrontation Clause).
¶ 84 We are also not persuaded that Barry requires a different
result, for three reasons. In Barry, ¶ 67, the emergency medical
technician (EMT) who drew the defendant’s blood for a blood alcohol
test signed a certificate stating that she drew the blood by
venipuncture and that she was an EMT. Colorado law authorizes
EMTs to draw a person’s blood for criminal investigations in
47
accordance with Colorado State Board of Health rules and
regulations, and these rules require that the EMT collect the blood
using venipuncture. Id. at ¶ 76. The EMT did not testify at trial,
and a division of this court concluded that the EMT’s certificate
constituted a hearsay testimonial statement. Id. at ¶ 79.
¶ 85 First, unlike the EMT in Barry, Deputy Dilka, the person who
collected the sample and tested it, testified at trial and was
available for cross-examination both as to his procedures and as to
the functioning of the equipment he used. Second, and in contrast
to Barry, the I-9000 certificate validated the machine’s proper
functioning for a range of dates — not just for the prosecution of
Mr. Ambrose’s case. See id. at ¶ 67 (EMT’s certificate was prepared
specifically for the prosecution of the defendant); see also Ramirez
v. State, 928 N.E.2d 214, 219-20 (Ind. Ct. App. 2010) (a certificate
of inspection and compliance for a machine used in a chemical
breath test was “not prepared for a particular prosecution of any
one defendant”); Bergin, 217 P.3d at 1089. As well, the EMT’s
certificate was not merely a document “prepared in the regular
course of equipment maintenance.” Melendez-Diaz, 557 U.S. at 311
n.1.
48
¶ 86 And third, the I-9000 certificate is an official record that
CDPHE is statutorily required to maintain. Section 42-4-1304(4)(a)
empowers and requires CDPHE to establish rules and procedures
for certifying the collection and testing of blood and breath samples
for alcohol and drugs, and those rules require that CDPHE annually
certify instruments like the I-9000. Dep’t of Pub. Health & Env’t
Reg. 4.1.3.2, 5 Code Colo. Regs. 1005-2. There are no similar
statutory or regulatory requirements for an EMT to certify how he or
she drew blood.
¶ 87 We are also not persuaded that Bullcoming requires a different
result. In Bullcoming, an analyst who did not perform the
defendant’s blood alcohol test testified about the results another
analyst had obtained. 564 U.S. at 659-60. The United States
Supreme Court held that such testimony violated the defendant’s
confrontation right. Id. at 657-58. We find Bullcoming
distinguishable for two reasons. First, as explained above, the
I-9000 certificate is not testimonial. It does not prove a defendant’s
BAC or any other material fact, but, instead, establishes that the
machine operates properly and complies with regulatory
requirements. Second, the individual responsible for using the
49
device and taking measurements, Deputy Dilka, testified at trial
and, therefore, was available for cross-examination.
¶ 88 Finally, even if we were to find that an error occurred, we
conclude that it would not constitute plain error given the plethora
of case law from other jurisdictions finding similar certificates not
testimonial. See People v. Pollard, 2013 COA 31M, ¶ 41 (the
uniformity with which numerous other courts have embraced a rule
even in the absence of Colorado case law squarely on point is
relevant to plain error analysis).
¶ 89 Accordingly, we hold that the I-9000 certificate is not
testimonial and that its admission did not implicate Mr. Ambrose’s
right to confront witnesses. We also conclude that section 42-4-
1303 does not, facially or as applied, violate the Confrontation
Clause.
IX. Persistent Drunk Driver Surcharge
¶ 90 Mr. Ambrose last contends that the trial court violated his
right to be free from double jeopardy by imposing the persistent
drunk driver surcharge on the mittimus without first announcing it
in open court at the sentencing hearing. We disagree.
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A. Standard of Review and Relevant Law
¶ 91 We review de novo whether the court violated Mr. Ambrose’s
rights against double jeopardy. People v. Cattaneo, 2020 COA 40,
¶ 41.
¶ 92 The Double Jeopardy Clauses of the United States and
Colorado Constitutions protect a defendant from being punished
twice for the same offense. U.S. Const. amends. V, XIV; Colo.
Const. art. II, § 18. We must determine whether the initial sentence
imposed in open court, which omitted the persistent drunk driver
surcharge, was lawful. See Yeadon v. People, 2020 CO 38, ¶ 8
(addressing whether the imposition of a similar drug offender
surcharge violates double jeopardy). If the original sentence was
illegal, it may be corrected at any time without violating double
jeopardy — even if the correction increases the sentence — because
a defendant has no legitimate expectation of finality in an illegal
sentence. See id.; Cattaneo, ¶ 42.
¶ 93 “We review the legality of a sentence de novo.” Cattaneo, ¶ 43.
“Sentences that are inconsistent with the statutory scheme outlined
by the legislature are illegal.” Id. (quoting People v. Rockwell, 125
P.3d 410, 414 (Colo. 2005)).
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B. Analysis
¶ 94 Mr. Ambrose was convicted of felony DWAI with three or more
prior offenses, pursuant to section 42-4-1301(1)(b). This subjected
him to incarceration, parole, and a persistent drunk driver
surcharge. See § 18-1.3-401(1)(a)(V), C.R.S. 2019; § 42-4-
1307(6.5), (10)(b), C.R.S. 2019. The court imposed the persistent
drunk driver surcharge under section 42-4-1307(10)(b), which
provides in relevant part that
[p]ersons convicted of DUI, DUI per se, and
DWAI are subject to a surcharge of at least one
hundred dollars but no more than five
hundred dollars to fund programs to reduce
the number of persistent drunk drivers. The
surcharge shall be mandatory, and the court
shall not have discretion to suspend or waive
the surcharge; except that the court may
suspend or waive the surcharge if the court
determines that a person is indigent.
(Emphasis added.)
¶ 95 Relying on the language that empowers the court to “suspend
or waive the surcharge if the court determines that a person is
indigent,” Mr. Ambrose reasons that the surcharge is punishment
because it is not mandatory in all cases. Consequently, he argues
that the Double Jeopardy Clause precluded the court from entering
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the surcharge on the mittimus after sentencing. We reject this
argument. See Yeadon, ¶ 14; Waddell v. People, 2020 CO 39, ¶ 19;
see also People v. Smith, 183 P.3d 726, 729 (Colo. App. 2008)
(“Colorado Supreme Court decisions are binding on the Colorado
Court of Appeals.” (citing People v. Close, 22 P.3d 933, 936 (Colo.
App. 2000))).
¶ 96 After laying out the surcharge’s parameters, the statute
subsequently says that the court “may suspend or waive the
surcharge if the court determines that a person is indigent.” § 42-
4-1307(10)(b). As in Cattaneo, reading the statute as a whole and
giving sensible effect to all of its parts, we conclude that the trial
court had the authority to suspend or waive the surcharge only if it
determined that the defendant was indigent. See Cattaneo, ¶ 48
(concluding that the authority to reduce or eliminate the drug
offender surcharge exists “only to the extent the offender is unable
to pay it”). The statute does not authorize a court to otherwise omit
the surcharge without making such a finding. See id.
¶ 97 Mr. Ambrose did not argue at sentencing, nor did the court
find, that he was indigent. Consequently, his original sentence
without the surcharge was contrary to section 42-4-1307(10)(b) and
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was, therefore, illegal. See Cattaneo, ¶ 49. The trial court could
correct Mr. Ambrose’s illegal sentence, without violating his rights
against double jeopardy, at any time under Crim. P. 35(a). See
Yeadon, ¶ 15.
¶ 98 Therefore, we conclude there was no double jeopardy violation
and affirm the court’s imposition of the persistent drunk driver
surcharge.
X. Conclusion
¶ 99 The judgment is affirmed.
JUDGE LIPINSKY concurs.
JUDGE TERRY concurs in part and dissents in part.
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JUDGE TERRY, concurring in part and dissenting in part.
¶ 100 I concur in all parts of the majority’s opinion except for Part
IV, in which the majority concludes that prior convictions are not
an element of the felony offense that must be proved to a jury
beyond a reasonable doubt, and except for its ultimate affirmance of
the felony DWAI conviction.
¶ 101 The majority’s opinion relies on People v. Gwinn, 2018 COA
130, in which I concurred. But appellate judges are free to change
our minds on arguable issues of law, and I did so later, when I
joined the opinion in People v. Viburg, 2020 COA 8M. In deciding to
concur in that opinion, I was persuaded by the Viburg division’s
reasoning, as well as by now-Chief Judge Bernard’s partial dissent
in People v. Schreiber, 226 P.3d 1221, 1225-27 (Colo. App. 2009)
(Bernard, J., concurring in part and dissenting in part). I still
believe that Viburg came to the right conclusion on this very
difficult legal issue.
¶ 102 As the majority notes, the question presented in this case is
now before the supreme court in Linnebur v. People, (Colo. No.
18SC884, Aug. 19, 2019) (unpublished order). Colorado’s courts
will benefit from further guidance on this issue.
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¶ 103 In the meanwhile, I would reverse Ambrose’s felony DWAI
conviction and remand for a jury trial on that charge.
56