2020 COA 36
Colo. Ct. App.2020Background
- Officer Davis responded within a few minutes to a dispatch reporting an assault at a residence; he saw a car pull out of that driveway and stopped it without observing a traffic violation.
- Defendant Dorothy Jiron was the driver; officers observed strong alcohol odor, slurred speech, glassy eyes, poor performance on field maneuvers, and arrested her for DUI.
- A post-arrest blood test showed BAC 0.334; a jury convicted Jiron of DUI and DUI per se.
- At sentencing the court found, by a preponderance, three prior DUI convictions and elevated the convictions to felonies.
- Jiron appealed, challenging: denial of suppression (reasonable suspicion for the stop), the use and proof of prior convictions (including a collateral attack on a 1998 conviction and Apprendi/Blakely issues), admission of blood-test evidence via a certifying scientist (Confrontation Clause/hearsay), and admission of officer testimony as lay vs. expert.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prior DUI convictions are elements of felony DUI or sentence enhancers | Prior convictions are sentence enhancers; conviction of DUI does not require proof of priors to convict | Priors are elements that must be proved to a jury beyond a reasonable doubt | Priors are sentence enhancers under §42-4-1301; preponderance standard for priors at sentencing was proper |
| Apprendi / Blakely claim (right to jury finding on priors) | Prior-conviction exception applies; no Sixth Amendment violation | Jiron: Apprendi/Blakely require jury to find priors | No Apprendi/Blakely violation; Colorado precedent treats prior convictions as exception to Apprendi |
| Timeliness / sufficiency of collateral attack on 1998 conviction (statutory time bar & excusable neglect) | Section 42-4-1702’s six-month time bar applies; defendant did not timely raise challenge | Jiron: little reason to challenge pre-felony-era DUI; excusable neglect/justifiable excuse; Custis exception for counsel violations | Time bar applied; delay not excused; Custis does not negate state statutory time limits on collateral attacks |
| Whether the stop violated the Fourth Amendment (reasonable suspicion) | The officer reasonably suspected the driver leaving the residence minutes after an assault might be involved | Jiron: leaving scene alone, without more, is insufficient (relying on Bohman) | Stop was supported by reasonable suspicion given immediate proximity in time/place to reported assault and vehicle leaving residence |
| Admissibility of blood-test results via certifying scientist (Confrontation Clause / in-person testimony / implied hearsay) | Certifying scientist independently reviewed data and testified—satisfies confrontation and §16-3-309(5) | Jiron: Bullcoming & Confrontation Clause require the analyst who ran the test to testify; hearsay/implied hearsay concerns | Testimony by certifying scientist who independently reviewed and certified results satisfied Confrontation Clause/statute; implied hearsay objection was unpreserved and no plain error |
| Officer Davis’s testimony about HGN, field maneuvers, and blood-draw procedure (lay vs expert) | Officer’s lay opinions about intoxication were permissible; any technical overreach was harmless given overwhelming proof | Jiron: testimony improperly amounted to expert testimony not offered as expert | Some descriptive HGN testimony exceeded permissible lay scope, but error (if any) was harmless in light of strong BAC and other evidence; lay opinion that defendant was intoxicated was proper |
Key Cases Cited
- Apprendi v. New Jersey, 530 U.S. 466 (U.S. 2000) (facts increasing penalty generally must be found by jury)
- Blakely v. Washington, 542 U.S. 296 (U.S. 2004) (Sixth Amendment right to jury finding on facts increasing sentence)
- Bullcoming v. New Mexico, 564 U.S. 647 (U.S. 2011) (forensic lab reports are testimonial; surrogate testimony problematic)
- Crawford v. Washington, 541 U.S. 36 (U.S. 2004) (Confrontation Clause bars admission of testimonial hearsay unless witness unavailable and prior cross-examination occurred)
- Custis v. United States, 511 U.S. 485 (U.S. 1994) (collateral attack exception limited to convictions obtained in violation of right to counsel)
- Terry v. Ohio, 392 U.S. 1 (U.S. 1968) (constitutionality of brief investigatory stops requires reasonable, articulable suspicion)
- Florida v. J.L., 529 U.S. 266 (U.S. 2000) (police suspicion must be measured by what they knew before the stop)
- United States v. Bohman, 683 F.3d 861 (7th Cir. 2012) (tip + vehicle leaving property insufficient to transfer suspicion to occupants)
- United States v. Brewer, 561 F.3d 676 (7th Cir. 2009) (circumstances of vehicle leaving crime scene can support reasonable suspicion)
- Lopez v. People, 113 P.3d 713 (Colo. 2005) (analysis for element vs sentence-enhancer based on statutory language)
- Vega v. People, 893 P.2d 107 (Colo. 1995) (plain-language statutory interpretation governs)
- People v. Wiedemer, 852 P.2d 424 (Colo. 1993) (factors for assessing justifiable excuse/excusable neglect in collateral challenges)