Criminal Law Newsletter
| Publication year | 1980 |
| Pages | 961 |
| Citation | Vol. 9 No. 5 Pg. 961 |
1980, May, Pg. 961. Criminal Law Newsletter
Prior to January 22, 1979, various toxicology experts, over the course of four years, had testified in Colorado trial level courts that breath samples could be saved. Finally, the Colorado Supreme Court ruled in Garcia v. District Court,(fn1)
that in all cases where a defendant elects to submit to a breath test to determine his blood alcohol level, he must be given a separate sample of his breath at the time of the test, or the alcoholic content of his breath in a manner which will permit scientifically reliable, independent testing by the defendant, if that test is to be used as evidence.(fn2)
Prior to this decision, samples of blood and urine were being maintained for independent testing but defendants who were administered breath tests did not have access to a sample for independent testing.
Subsequent to the decision allowing breath samples for defendants, almost all breath testing stopped in the state while the Colorado Department of Health set up approved methods to be used. While this approval was not required by the Supreme Court decision, it would appear to have a statutory basis in Colorado's Implied Consent Law,(fn3) which directs the State Board of Health to promulgate regulations for alcohol testing.
Historically, the Colorado Department of Health has administered these regulations. On January 16, 1980, the Colorado State Board of Health adopted revised regulations titled: "Amendments to Rules and Regulations of the Colorado Board of Health Relating to Chemical Tests for Blood Alcohol, Implied Consent Law, 5-CCR-1005-2," which contain procedures for the collection and saving of breath samples. Although only recently promulgated by the State Board of Health, the procedures for saving breath samples have been in general use throughout the state since April 1979.
There were about 30,000 arrests in Colorado on alcohol-related driving offenses during 1979 and of these, about 70 percent were administered a breath test. It is apparent that before the Supreme Court decision, the vast majority of drunk driving arrestees had no means to verify the accuracy of the reported blood alcohol level. Since most of these breath tests are given by non-technical personnel and on instruments not...
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