2021 COA 62
Colo. Ct. App.2021Background
- Deputy Dilka stopped Ambrose after observing a steady white light from the rear of his moving car; during the stop he detected alcohol, observed glassy eyes, administered field sobriety tests, and arrested Ambrose.
- Ambrose consented to an Intoxilyzer 9000 (I-9000) breath test that produced a 0.063 BAC and printed a contemporaneous machine-generated “working order” certificate (machine serial, certificate dates, CDPHE seal) that lacked the executive director’s signature.
- Prosecutors tried Ambrose for DWAI; a jury convicted him and the court (in a bench proceeding) found three prior alcohol convictions, elevating DWAI to a felony; Ambrose was sentenced and appealed.
- Pretrial, Ambrose sought a Shreck hearing challenging the I-9000’s reliability; the trial court denied the hearing, took judicial notice of CDPHE-certified methods, and admitted the breath result and the machine certificate at trial; Deputy Dilka testified about operating the machine and said it was "working properly."
- On appeal the court addressed multiple issues (reasonable suspicion, juror bias, Shreck hearing, lay vs expert testimony, statutory certification and Confrontation Clause challenges). The division reversed the felony conviction per the Colorado Supreme Court’s Linnebur decision (priors are an element) and remanded for retrial or resentencing on the misdemeanor.
Issues
| Issue | People’s Argument | Ambrose’s Argument | Held |
|---|---|---|---|
| Reasonable-suspicion traffic stop for equipment violation | Officer observed what appeared to be a backup/white light on while vehicle in forward motion, justifying stop | Stop invalid because officer cited a different equipment statute and car had out-of-state plates | Stop was supported by objective reasonable suspicion; no error |
| Challenge for cause to juror C.J. (bias re alcohol beliefs) | No explicit statement by juror she could not follow law; voir dire showed rehabilitation possible | Juror’s raised hands and statements showed bias against defendants who drink and drive | Trial court did not abuse discretion denying challenge; no reversible error |
| Prior convictions used to elevate misdemeanor to felony | Priors proven at bench can serve to enhance sentence | Priors are elements that must be submitted to jury beyond a reasonable doubt | Following Linnebur, priors are elements; felony conviction reversed and case remanded for retrial or resentencing on misdemeanor |
| Denial of Shreck evidentiary hearing on I-9000 reliability | Statute requires courts to take judicial notice of CDPHE-certified testing methods; device certification and operator testimony suffice; issues go to weight | Requested hearing necessary given news allegations and questions about I-9000 certification fraud | Denial not an abuse of discretion; statute and record justified judicial notice; challenges go to weight and cross-examination |
| Deputy’s testimony that I-9000 "was working properly" (expert vs lay) | Testimony described perceptions and procedures; admissible as lay opinion | Opinion stemmed from specialized training and should have required expert qualification | Admission possibly should have been as expert testimony, but any error was harmless given abundant other impairment evidence |
| Admissibility of unsigned I-9000 certificate under §42-4-1303 | Certified departmental records with seal are prima facie proof; signature absence affects weight not admissibility | Certificate lacked required signature and thus was inadmissible | Certificate admissible; signature deficiency goes to weight per Thomas v. People |
| Confrontation Clause challenge to I-9000 working-order certificate | Certificate is nontestimonial device-maintenance/ certification record and not proof of BAC; admission does not implicate Crawford/Melendez-Diaz | Certificate is testimonial (functionally like a lab certificate) and admission without maker’s testimony violated Sixth Amendment | Certificate is nontestimonial; admission did not violate Confrontation Clause; statute is not facially or as-applied unconstitutional |
Key Cases Cited
- Crawford v. Washington, 541 U.S. 36 (defines testimonial statements for Confrontation Clause analysis)
- Melendez-Diaz v. Massachusetts, 557 U.S. 305 (lab certificates reporting forensic results are testimonial)
- Bullcoming v. New Mexico, 564 U.S. 647 (prohibits surrogate testimony for absent analyst where report is testimonial)
- People v. Bowers, 716 P.2d 471 (Colo. 1986) (statutory delegation to health agency and judicial notice of certified breath-testing methods)
- Thomas v. People, 895 P.2d 1040 (Colo. 1995) (deficiencies in board certifications affect weight, not admissibility)
- People v. Shreck, 22 P.3d 68 (Colo. 2001) (CRE 702 gatekeeping test and when scientific evidence requires a reliability hearing)
- Hinojos-Mendoza v. People, 169 P.3d 662 (Colo. 2007) (laboratory reports can be testimonial and subject to Confrontation Clause)