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People v. Marston.

2021 COA 14. No. 18CA1879. Criminal Law—Driving While Ability Impaired—Prior Convictions—Elements—Jury—Involuntary Statements—Shreck Hearing—Horizontal Gaze Nystagmus Test—Expert Witness.

February 11, 2021

J.P. observed defendant’s truck straddling lanes and speeding up and slowing down erratically. J.P. called 911 to report his observations and followed the truck to a 7-Eleven. After defendant went into the store, J.P approached a sheriff’s deputy who had just pulled into the parking lot. J.P. told the deputy what he had seen, and the deputy approached defendant. The deputy noticed that defendant’s eyes were red and watery, he smelled of alcohol, and his speech was “thick-tongued.” Defendant made inconsistent statements about whether he had driven to the store or his girlfriend had driven him there and told the officer that he had consumed several mixed drinks the night before. Another deputy arrived and administered roadside field sobriety tests, including the horizontal gaze nystagmus (HGN) test. Defendant failed the roadside tests and was arrested. Defendant was originally charged with driving under the influence (DUI) and driving under restraint. He went to trial on the DUI charge and a jury convicted him of the lesser included driving while ability impaired (DWAI) offense. The court then determined that defendant had at least three prior alcohol-related driving convictions and sentenced him for felony DWAI.

On appeal, defendant contended that the district court erred by finding that he had at least three prior alcohol-related driving convictions by a preponderance of the evidence rather than submitting the issue to the jury for it to decide beyond a reasonable doubt. Defendant’s prior convictions are elements of the crime, so reversal is required.

Defendant also contended that his statements to the deputy at the scene should have been suppressed because they were involuntary. Defendant asserted that his statements were coerced because more than one deputy was present, the two deputies stood close to him, the encounter lasted 20 to 30 minutes, he wasn’t given a Miranda advisement, and he wasn’t free to leave. However, based on the totality of the circumstances, these facts don’t constitute coercion. Therefore, defendant’s will wasn’t overborne by coercive police conduct and his statements were voluntary.

Defendant also argued that the district court erred by refusing to hold a Shreck hearing on the science, reliability, and margin of error of the HGN test and the deputy’s expertise on those issues. Evidence of HGN test results is admissible as evidence of impairment if offered through a qualified expert witness. Here, the deputy was sufficiently qualified to testify about the administration and interpretation of the test, and there was overwhelming evidence against defendant independent of the HGN test results. Therefore, the court did not abuse its discretion in denying defendant’s request for a Shreck hearing or admitting the evidence at trial.

The judgment was reversed and the case was remanded for proceedings consistent with this opinion.

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

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