2019 COA 2
Colo. Ct. App.2019Background
- Defendant Kim Fuerst rear-ended another vehicle; a bystander said he tried to hide beer; Fuerst performed roadside sobriety tests and showed signs consistent with a CNS depressant.
- Officer arrested Fuerst and offered the expressed-consent alcohol test choice under § 42-4-1301.1(2)(a)(I); Fuerst chose and completed a breath test, which returned a zero BAC.
- After the negative alcohol result, the officer concluded drugs might be involved and requested a blood test under § 42-4-1301.1(2)(b)(I); Fuerst initially refused but consented after being told his license would be revoked.
- Blood testing showed alprazolam (Xanax) at about 101 ng/mL. Fuerst was charged with DUI, DWAI, and unsafe backing; jury convicted him of DWAI and unsafe backing but acquitted him of DUI.
- Fuerst moved to suppress the blood-test results arguing the Expressed Consent Statute did not authorize a drug test after a completed alcohol test and that admission of the lab report violated confrontation and statutory hearsay rules; the trial court denied suppression and admitted the lab report.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an officer may request a drug test under § 42-4-1301.1(2)(b)(I) after a suspect already chose and completed an alcohol test under § 42-4-1301.1(2)(a)(I) | People: Nothing in the statute prohibits requesting both tests; officer may request drug test if probable cause exists | Fuerst: After choosing and completing an alcohol test, the officer may not invoke the expressed-consent drug-test provision to require a second test | Court: Officer may request and suspect must submit to drug testing when officer has probable cause for drug impairment; statute permits both tests and does not limit to one or the other |
| Whether Turbyne / § 42-4-1301.1(2)(a.5)(I) preclude changing or adding tests here | People: Turbyne concerned changing selected alcohol test type; statutory amendment addresses extraordinary circumstances; not applicable | Fuerst: Turbyne’s rule prevents changing or adding the test after selection | Court: Turbyne does not apply because Fuerst completed his chosen alcohol test and the drug-test request arose from new probable cause for drugs |
| Whether admission of the CBI laboratory report violated the Confrontation Clause | People: CBI toxicologist personally reviewed raw data, led quality-control review, signed the report; comparable to permissible testimony in Marshall | Fuerst: Witness did not perform or observe the original testing and thus was surrogate witness like Bullcoming | Court: Testimony was like Marshall, not Bullcoming; the witness reviewed the raw data, employed QA steps, and certified the report, satisfying confrontation concerns |
| Whether admission of the laboratory report complied with Colo. Rev. Stat. § 16-3-309(5) (report must be introduced by the employee who ‘‘accomplished’’ the analysis) | People: The certifying toxicologist ‘‘accomplished’’ the analysis by reviewing data, supervising QA, and signing the report | Fuerst: The witness did not do the original analysis and so did not ‘‘accomplish’’ it | Court: Marshall controls; reviewing, supervising, and certifying the testing falls within ‘‘accomplishing’’ the analysis, so admission was proper |
Key Cases Cited
- Halter v. Dep’t of Revenue, 857 P.2d 535 (Colo. App. 1993) (officer may require alcohol tests, drug tests, or both when probable cause exists)
- Turbyne v. People, 151 P.3d 563 (Colo. 2007) (officer may not change the type of alcohol test a detainee selected under prior statutory scheme)
- Bullcoming v. New Mexico, 564 U.S. 647 (2011) (Confrontation Clause bars testimony by a surrogate who neither performed nor certified forensic testing)