The People of the State of Colorado, Plaintiff-Appellee, v. Kim Maurice Fuerst, Defendant-Appellant.
No. 17CA0772
Colorado Court of Appeals
January 10, 2019
2019COA2
Opinion by JUDGE HAWTHORNE; Tow and Márquez*, JJ., concur
Mesa County District Court No. 16CR706; Honorable Brian J. Flynn, Judge
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY
January 10, 2019
2019COA2
No. 17CA0772, People v. Fuerst — Regulation of Vehicles and Traffic — Alcohol and Drug Offenses — Expressed Consent for the Taking of Blood, Breath, Urine, or Saliva
In this criminal case, a division of the court of appeals is asked to decide whether a police officer is authorized to request that a suspect take a drug test under
Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Emilyn Winkelmeyer, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of
¶ 1 Defendant,
I. Background
¶ 2 Defendant backed his car into a pickup truck. When a police officer arrived on the scene, a bystander told the officer that, after the accident, defendant had asked her if she wanted his beer because he needed to hide it.
¶ 3 Defendant agreed to perform several roadside sobriety tests. The horizontal gaze nystagmus test indicated that he was under the influence of a central nervous system depressant (CNS depressant). Alcohol is a CNS depressant. Defendant also performed poorly on the walk-and-turn and one-leg stand tests and had difficulty following the officer‘s instructions. Based on defendant‘s performance on these tests and his previous statement to the bystander about the beer, the officer believed defendant was under the influence of alcohol.
¶ 4 The officer arrested defendant and gave him the option of taking either a breath or blood test under
¶ 5 The officer then concluded that “it had to be drugs” and asked defendant to take a blood test under
¶ 6 The blood test revealed 101 nanograms of Alprazolam (Xanax) per milliliter, which is near the upper limit of the therapeutic range for that drug (25 to 102 nanograms per milliliter). Alprazolam is also a CNS depressant.
¶ 7 Before trial, defendant moved to suppress the blood test results. After hearing evidence and argument, the trial court denied the motion.
¶ 8 At trial, the jury found defendant not guilty of driving under the influence (DUI) but found him guilty of DWAI and unsafe backing.
II. The Trial Court Didn‘t Err in Denying the Motion to Suppress the Blood Test Results
¶ 9 Defendant contends that the trial court erred in denying his motion because the officer‘s requiring him to complete the blood test — after he had already selected and completed the breath test — wasn‘t authorized by the Expressed Consent Statute and violated his constitutional rights. We disagree.
A. Defendant Preserved His Argument
¶ 10 In defendant‘s written motion to suppress, he argued only that the officer didn‘t have probable cause to request that he take the blood test. But, at the evidentiary hearing on the motion, during closing argument, the trial court specifically asked the prosecutor, “[T]ell me your position on the law if someone agrees to take a breath test and then can law enforcement ask them for a second test . . . ?” The prosecutor answered that he wasn‘t aware of anything in the law
¶ 11 Under these circumstances, we conclude that defendant preserved his contention for appeal.
B. Standard of Review
¶ 12 Review of a trial court‘s suppression order presents a mixed factual and legal question. People v. Hyde, 2017 CO 24, ¶ 9. We defer to the trial court‘s factual findings that have record support, but we assess those facts’ legal effect de novo. Id. And we also review de novo the court‘s interpretation of the Expressed Consent Statute. See Fitzgerald v. People, 2017 CO 26, ¶ 8.
C. Analysis
¶ 13 Defendant argues that the Expressed Consent Statute doesn‘t authorize an officer to request a drug test under
¶ 14
¶ 15 This case‘s facts are strikingly similar to those in Halter v. Department of Revenue, 857 P.2d 535 (Colo. App. 1993). There, the officer had probable cause to believe the plaintiff was impaired by alcohol because of, among other things, his poor performance on roadside sobriety tests. Id. at 536, 538. The officer gave the plaintiff the option of performing a breath or blood test under
¶ 16 Although the plaintiff in Halter didn‘t make the same statutory argument that defendant does in this case, the Halter division analyzed the Expressed Consent Statute and concluded that if an officer has probable cause to believe that a driver is under the influence of alcohol or drugs, the officer may request, and the driver is obligated to complete, “either the applicable alcohol tests or the applicable drug tests or both.” Id. at 538 (emphasis added). Notably, in this case, the People relied on Halter in their answer brief but defendant didn‘t address the case in his reply brief.
¶ 17 Instead, defendant argues that under Turbyne, 151 P.3d 563, and
¶ 19 Unlike in Turbyne, where the defendant wasn‘t allowed to take the type of test he had selected under
¶ 20 Defendant doesn‘t present any independent argument that conducting the blood test violated his constitutional rights. Instead, he argues, “[T]he issue here is whether that procedure [employed by the officer] was lawful under the statute. Because it was not, the blood draw was unconstitutional and the results should have been suppressed.” We conclude that the procedure employed by the officer didn‘t violate the Expressed Consent Statute. Because defendant‘s statutory claim fails, his constitutional claim necessarily fails.
III. The Trial Court Properly Admitted the Blood Test Results at Trial
¶ 21 Defendant also contends that the trial court violated his confrontation rights and
A. Further Background
¶ 22 The court admitted the laboratory report based on the testimony of a forensic toxicologist for the Colorado Bureau of Investigation (CBI toxicologist), who was qualified as an expert in forensic science and forensic toxicology.
¶ 23 During initial questioning, the CBI toxicologist testified that he believed he had done at least some of the original testing on defendant‘s blood sample, but he couldn‘t confirm that. The prosecutor then offered the laboratory report, but the trial court concluded that the prosecutor hadn‘t laid a sufficient foundation.
¶ 24 Through further questioning, the CBI toxicologist said that he had created and signed the laboratory report, and explained the process for doing so:
[W]hen I will begin to write a report, [the] person whose name goes on the report will take in all of the information. They will review it themselves.
They‘ll go through each of the raw data. They‘ll make sure that all quality control passes CBI‘s acceptable criteria.
I will look at the raw data for the case, itself. Make sure that that matches with what‘s in our electronic database.
I will go through this entire process, write the report. And when I write the report, it will, then, go through a technical review process, where another forensic scientist will come through and make sure everything I did on the report is correct.
And then, after that technical review process, it will go through an administrative review process, where a CBI Supervisor or Manager will go through and make sure everything is grammatically correct, and that what‘s on the Request for Laboratory Examination was actually done for the case.
¶ 25 Following argument, the trial court concluded that the prosecutor had laid a sufficient foundation, admitted the laboratory report into evidence, and allowed the CBI toxicologist to testify about the blood test results.
B. Standard of Review
¶ 26 We review defendant‘s claims de novo. See Nicholls v. People, 2017 CO 71, ¶ 17 (“Confrontation claims are reviewed de novo.“); People v. Hill, 228 P.3d 171, 173 (Colo. App. 2009) (reviewing de novo whether evidence was admissible under
C. Analysis
1. Right to Confrontation
¶ 27 The parties disagree about whether the circumstances in this case are more like those in Bullcoming v. New Mexico, 564 U.S. 647 (2011), or those in Marshall v. People, 2013 CO 51. We agree with the People that the CBI toxicologist‘s role in completing and signing the laboratory report is much more similar to the circumstances in Marshall than those in Bullcoming.
¶ 28 In Bullcoming, the Supreme Court held that a witness shouldn‘t have been allowed to testify about the results in a laboratory report because the witness hadn‘t signed the report certification and hadn‘t performed or observed the forensic testing on the blood sample. 564 U.S. at 651-63. Instead, the analyst was familiar only with the laboratory‘s testing procedures generally. Id. at 651. The Court described the analyst‘s testimony as “surrogate testimony,” and held that the defendant had the right to confront the analyst who had actually completed and signed the report certification. Id. at 652.
¶ 29 In Marshall, the Colorado Supreme Court held that a witness was properly allowed to testify about the results in a laboratory report. 2013 CO 51, ¶ 1. The witness, a supervisor at the laboratory, hadn‘t done any of the original testing on the urine sample. Still, the court held that the supervisor was qualified to testify about the results in the report because she had (1) supervised the testing process; (2) reviewed all the data generated by the test; (3) found that the data accurately determined that the defendant had methamphetamine present in her urine; and (4) certified the test results. Id. at ¶ 2. The court explained that those circumstances didn‘t present the type of “‘surrogate’ testimony” found to be problematic in Bullcoming. Id.; see also People v. Medrano-Bustamante, 2013 COA 139, ¶¶ 19-25 (a case similar to Marshall in which a division of this court held that the admission of a laboratory report didn‘t violate the defendant‘s right to confrontation), rev‘d in part on other grounds sub nom. Reyna-Abarca v. People, 2017 CO 15.
¶ 30 Although the prosecutor could have elicited more specific details about each step of the CBI toxicologist‘s review process, the CBI toxicologist specified that he personally reviewed all the information — including the raw data generated by the testing on the blood sample — and proceeded through the CBI‘s quality control process, which included several levels of review. He then certified the results of that process by signing the laboratory report. As in Marshall, these circumstances didn‘t present the type of “surrogate testimony” found to be problematic in Bullcoming.
¶ 31 Defendant emphasizes that the CBI toxicologist couldn‘t confirm at trial that he had performed the original testing on defendant‘s blood sample. But, in Marshall, even though the supervisor hadn‘t completed the original testing on the urine sample, she was still qualified to testify about the results certified in the report.
¶ 32 We are also not persuaded by defendant‘s argument that the CBI toxicologist‘s testimony was phrased in terms of the process he generally employed in completing and signing laboratory reports like the one at
¶ 33 We also find it immaterial that the CBI toxicologist didn‘t hold a formal supervisory position at the CBI‘s laboratory. The important information is that he led the process of reviewing the test results, employed the CBI‘s quality control process, and certified the results by signing the laboratory report.
2. Section 16-3-309(5)
¶ 34
¶ 35 In Marshall, the supreme court held that the supervisor‘s process of reviewing the testing and completing and certifying the laboratory report fell within the meaning of “accomplish[ing]” the analysis under
¶ 36 Again, Marshall isn‘t meaningfully distinguishable. The CBI toxicologist led the process of reviewing the test results, employed the CBI‘s quality control process, and certified the results by signing the laboratory report. That fell within the meaning of “accomplishing” the report under
IV. Conclusion
¶ 37 The judgment is affirmed.
JUDGE TOW and JUDGE MÁRQUEZ concur.