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People v. Marston

2020 COA 121. No. 18CA1879. Driving While Ability Impaired—Admissibility of Evidence—Shreck Hearing.

August 6, 2020


J.P. was driving behind defendant’s vehicle when he observed it straddling lanes and speeding up and slowing down erratically. He also saw defendant nodding off at the wheel. J.P. called 911 and followed the vehicle to a convenience store. Defendant entered the store. J.P. approached Deputy Fosler, who had just pulled into the store’s parking lot, and told him what he’d seen. Deputy Fosler approached defendant and asked him to step outside the store and answer some questions. Defendant obliged and told him his license was suspended. Throughout the conversation, Deputy Fosler noticed that defendant’s eyes were red and watery, he smelled of alcohol, and his speech was thick-tongued

Deputy Kehl arrived and administered roadside sobriety tests to defendant, including the horizontal gaze nystagmus (HGN) test. Deputy Kehl determined that defendant didn’t perform the roadside tests as a sober person would and arrested him. Defendant refused a chemical test. Defendant was charged with driving under the influence (DUI) and driving under restraint. At trial, the prosecution endorsed Deputy Kehl as an expert in HGN testing. Defendant filed a motion requesting a hearing under People v. Shreck, 22 P.3d 68 (Colo. 2001), to challenge the admissibility of the HGN test and Deputy Kehl’s qualifications as an expert. The court denied the motion after a hearing, and Deputy Kehl testified about defendant’s performance on the HGN test. The jury convicted defendant of the lesser included driving while ability impaired (DWAI) offense. Because defendant had three prior alcohol-related driving convictions, he was sentenced for felony DWAI.

On appeal, defendant argued that the district court erred by denying his motion to suppress his statements to Deputy Fosler because they were involuntary. Here, Deputy Fosler simply asked defendant, in a conversational tone, questions about his driving and alcohol consumption. There was no indication that defendant’s will was overborne by coercive police conduct, and his statements were therefore voluntary. Accordingly, the district court did not err.

Defendant also contended that the district court abused its discretion by not holding a Shreck hearing on the science, reliability, and margin of error of the HGN test, as well as Deputy Kehl’s expertise on those issues. The weight of judicial authority favors admissibility of HGN test results without the need for additional evidence of scientific reliability if the evidence is offered only as evidence of impairment and not a specific blood alcohol level. Therefore, evidence of HGN test results is admissible as evidence of impairment if offered through a qualified expert witness. Such witness must be an expert in administering the test and interpreting the subject’s responses but doesn’t have to be an expert in the science underlying the test. Here, Deputy Kehl was sufficiently qualified to testify about the administration and interpretation of the HGN test, and the district court had ample information from which it could determine the admissibility of the HGN test results without granting defendant’s request for a Shreck hearing. Accordingly, the district court did not abuse its discretion. Further, even if the court did err, any error was harmless given the overwhelming evidence against defendant aside from the HGN test.

Defendant also argued 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 to decide beyond a reasonable doubt. However, such prior convictions are sentence enhancers, not elements of the offense, and therefore don’t have to be decided by a jury.

The judgment was affirmed.

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

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