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People v. Ambrose

2020 COA 112. No. 18CA1557. Criminal Law—Driving While Ability Impaired—Reasonable Suspicion—Criminal Procedure—Jurors—Challenge for Cause—Certification of Breath Test Instruments—Sentence Enhancer—Burden of Proof—Constitutional Law—Sixth Amendment—Confrontation Clause—Double Jeopardy—Drunk Driver Surcharge.

July 23, 2020

A deputy pulled defendant over for a defective taillight. After the deputy observed signs of intoxication, defendant consented to perform voluntary roadside maneuvers. The deputy observed several clues of impairment and placed defendant under arrest on suspicion of driving under the influence. Defendant agreed to a breath test, which revealed a blood alcohol concentration (BAC) of 0.063. Defendant moved to suppress evidence of impairment obtained as a result of the stop, but the trial court denied his motion. A jury convicted defendant of felony driving while ability impaired (DWAI), which was his fourth alcohol-related offense.

On appeal, defendant first contended that the trial court erroneously found that the deputy had reasonable suspicion to initiate a traffic stop. Here, the deputy testified that once he got behind defendant’s car, he saw that the left taillight emitted a steady white light instead of a red light. Therefore, the deputy had reasonable suspicion to stop defendant for a suspected motor vehicle equipment violation.

Defendant also contended that the trial court erroneously denied his challenge for cause to a juror. Although the juror 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,” there was no evidence that the juror was unable to be fair and impartial or that she would be unable to follow the law. Because she displayed no bias or enmity against defendant, the court did not abuse its discretion.

Defendant further contended that his prior driving under the influence (DUI) convictions were 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. Prior DUI convictions constitute sentence enhancers, not elements of the felony DUI or DWAI offense. Therefore, the court did not err by denying defendant’s motion to have a jury decide the issue of his prior convictions.

Defendant also argued that the trial court erroneously admitted Intoxilyzer 9000 (I-9000) evidence without first holding a hearing to assess its reliability. However, the statute instructs the court to take judicial notice of the methods of testing a person’s alcohol level as certified by the Colorado Department of Public Health and Environment (CDPHE), the record reflects that CDPHE certified the I-9000 machine used in this case, and the deputy testified that the machine was working properly. Thus, the court did not abuse its discretion.

Defendant further argued that the deputy’s testimony about the I-9000 constituted expert testimony in the guise of lay testimony. The deputy’s opinion is arguably an expert opinion because it was based on specialized training that he received in the operation of the I-9000. However, any error was harmless given the substantial other evidence of defendant’s impairment.

Defendant also argued that the trial court abused its discretion in admitting the I-9000 certificate and results because the certificate, printed by the machine at the time of the test, lacks a signature and was inadmissible as a matter of law. Even assuming without deciding that the statute requires a signature, any such deficiency goes to the weight of the evidence, not its admissibility, so the trial court did not err.

Defendant also contended 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. The I-9000 certificate is not testimonial; it does not prove a defendant’s BAC or any other material fact but establishes that the machine operates properly and complies with regulatory requirements. Further, the individual responsible for using the device and taking measurements, the deputy, testified at trial and therefore was available for cross-examination. CRS § 42-4- 1303 does not, facially or as applied, violate the Confrontation Clause.

Defendant further argued 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. Defendant was convicted of felony DWAI with three or more prior offenses. This subjected him to incarceration, parole, and a persistent drunk driver surcharge. Defendant’s original sentence without the surcharge was contrary to CRS § 42-4-1307(10)(b) and thus was illegal. The trial court could correct defendant’s illegal sentence without violating his rights against double jeopardy at any time under Crim. P. 35(a).

The judgment was affirmed.

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

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