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People v. Ambrose.

2021 COA 62. No. 18CA1557.  Driving While Ability Impaired—Reasonable Suspicion—Traffic Stop—Juror Challenge for Cause—Elements of Felony Offense—Sentence Enhancer—Intoxilyzer 9000—Expert Testimony—Constitutional Law—Confrontation Clause.

May 6, 2021

Defendant was pulled over for having a defective taillight. During the stop, the officer detected the odor of alcohol, and defendant consented to performing roadside maneuvers. The officer arrested defendant after observing several clues of impairment and learning from dispatch that he had active restraints on his driver’s license in other states. Defendant was convicted of driving while ability impaired (DWAI). 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 defendant’s conviction from a misdemeanor to a class 4 felony.

On appeal, defendant argued that the trial court erred in finding that the officer had reasonable suspicion to initiate a traffic stop. However, the officer’s observation that defendant’s car’s taillight emitted a steady white light instead of a red light justified the stop. Further, the fact that defendant’s vehicle displayed Wisconsin plates does not alter the analysis because CRS § 42-4-215(6) does not require a vehicle to be registered in Colorado to be stopped for a traffic violation.

Defendant further argued that the trial court erred in denying his challenge for cause to Juror C.J. However, the record contains no evidence that Juror C.J. was unable to be fair and impartial, or that she would be unable to follow the law, so the court did not err.

Defendant also argued that because prior convictions under CRS § 42-4-1301(1)(b) transform a misdemeanor conviction into a felony conviction, they constitute an element of the felony offense that must be proved to a jury beyond a reasonable doubt, rather than treated as a sentence enhancer. Based on the holding in Linnebur v. People, 2020 CO 79M, the Court of Appeals agreed. Because the trial court treated defendant’s prior convictions as a sentence enhancer, his felony conviction must be reversed.

Defendant also contended that the trial court erroneously admitted Intoxilyzer 9000 (I-9000) evidence without first holding a hearing to assess its reliability under People v. Shreck, 22 P.3d 68 (Colo. 2001). When a party requests a Shreck analysis, the court has discretion to hold an evidentiary hearing but is not required to do so if it has sufficient information to make specific findings under Shreck. The record reflects that the I-9000 machine used here was certified by the Colorado Department of Public Health and Environment (CDPHE), and the arresting officer testified that the machine was working properly. Further, the prosecution’s late endorsement of the officer as an expert witness does not require a different result, and the trial court offered to continue the trial so defense counsel could endorse his own witness, but counsel refused the offer. Accordingly, there was no abuse of discretion.

Defendant further contended that the officer’s testimony that the I-9000 worked properly constituted expert testimony in the guise of lay testimony. While the officer’s opinion is arguably an expert opinion because it was based on specialized training that he received in the operation of the I-9000, any error was harmless because the testimony did not substantially influence the verdict or the fairness of the trial.

Defendant also argued that the I-9000 certificate and results are inadmissible as a matter of law because the certificate lacks a signature, so the trial court abused its discretion by admitting it. However, any such deficiency goes to the weight and not the admissibility of the evidence, so the trial court did not err.

Defendant further argued that if the I-9000 certificate is admissible under CRS § 42-4-1303, it is testimonial, and the statute violates his Sixth Amendment right to confrontation both facially and as applied. However, the I-9000 certificate merely constitutes prima facie evidence that the I-9000 complied with CDPHE regulations, so it is neither testimonial nor subject to the Confrontation Clause. Further, CRS § 42-4-1303 does not, facially or as applied, violate the Confrontation Clause.

The DWAI conviction was reversed and the case was remanded for imposition of a misdemeanor DWAI and resentencing, unless the prosecution opts to retry the felony DWAI charge. The judgment was otherwise affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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