People v. Hard
2014 Colo. App. LEXIS 1676
Colo. Ct. App.2014Background
- Trooper stopped Lisa Hard for speeding/seatbelt; she produced only a driver’s license and appeared intoxicated; he discovered an outstanding DUI warrant and arrested her.
- Incident-to-arrest search recovered ten pills from Hard’s pockets; Hard said she had prescriptions but had no bottles; two beer cans found in car; she later consented to blood test (BAC .089); no drugs detected in blood.
- Trooper Hancey used Drugs.com at the scene to visually identify pills as oxycodone and alprazolam but did not submit the pills for chemical confirmation. He testified to the Drugs.com results at trial.
- A jury acquitted Hard of DUI but convicted her of possession of a Schedule II (oxycodone) and Schedule III (alprazolam—later conceded to be Schedule IV) controlled substance, failure to present proof of insurance, and speeding; sentenced to probation and fines.
- On appeal Hard challenged admission of the Drugs.com testimony, sufficiency of evidence for the drug convictions, and other matters; the People cross-appealed the reduced insurance fine.
Issues
| Issue | People’s Argument | Hard’s Argument | Held |
|---|---|---|---|
| Admissibility of Trooper’s testimony about Drugs.com (hearsay/CRE 803(17)) | Drugs.com is a widely relied-on commercial publication fitting CRE 803(17) | Drugs.com is unreliable hearsay; officer’s reliance is insufficient foundation | Reversed: Drugs.com testimony was inadmissible under CRE 803(17) because People failed to show necessity and reliability |
| Confrontation Clause (testimonial nature of Drugs.com) | Not testimonial; admission would not implicate Sixth Amendment | Claimed confrontation violation | Court declined to find a Confrontation Clause violation (information not testimonial) |
| Sufficiency to prove oxycodone possession | Visual match via Drugs.com sufficed with officer testimony | Visual comparison alone insufficient without chemical confirmatory testing or other proof | Conviction vacated for oxycodone; evidence insufficient and retrial barred by double jeopardy |
| Sufficiency to prove alprazolam possession | Physical match plus defendant’s statements (took Xanax; had prescriptions) and timing supported conviction | Argued insufficiency because no chemical test and blood negative | Conviction reversed but retrial permitted: evidence was close but sufficient to allow retrial |
| Legality of suspending half of mandatory insurance fine | Court may suspend half if defendant shows she obtained insurance | Hard argued reduction appropriate because she no longer owned/drove a car | Reduction was illegal: statute permits suspension only upon showing of obtained insurance; remanded for resentencing |
Key Cases Cited
- Yusem v. People, 210 P.3d 458 (Colo. 2009) (harmless-error standard for preserved evidentiary error)
- Burks v. United States, 437 U.S. 1 (U.S. 1978) (double jeopardy bar to retrial when evidence is insufficient)
- Dempsey v. People, 117 P.3d 800 (Colo. 2005) (standard for sufficiency review)
- People v. Thornton, 251 P.3d 1147 (Colo. App. 2010) (CRE 803(17) applied to Kelley Blue Book as market report)