Chapter 6 - § 6.1 • EVIDENCE OF INITIAL OBSERVATIONS

• Jurisdiction: Colorado

§ 6.1 • EVIDENCE OF INITIAL OBSERVATIONS

The initial observations of the actions of a defendant's vehicle, the defendant's behavior upon contact, an odor of alcohol upon the defendant's breath, bloodshot and/or watery eyes, slurred speech, difficulty obtaining license, staggering upon exit from the vehicle, etc., are all arguably probative of the defendant's intoxication. Herman v. Dep't of Rev., Motor Veh. Div., 870 P.2d 628 (Colo. App. 1994); People v. Shepherd, 906 P.2d 607 (Colo. 1995); People v. Mersman, 148 P.3d 199 (Colo. App. 2006). Contrast, People v. Roybal, 655 P.2d 410 (Colo. 1982), in the context of a motion to suppress where the vehicle accident and odor of alcohol alone did not establish probable cause. See Chapter 4 of this Benchbook. Such observations are therefore relevant and admissible, unless suppressed. CRE 401. No expert testimony is necessary for the jury to glean the significance of these symptoms, since they are well recognized by lay persons as indications of possible intoxication. CRE 701; see People v. Souva, 141 P.3d 845, 850 (Colo. App. 2005). Lay opinion evidence of drug intoxication is also admissible upon the laying of a proper foundation. Id.

While there may be alternative explanations for each symptom, these explanations generally go to the issue of what weight the jury should give the observations, and not to their admissibility. Refer to § 6.6.1, below, for a further discussion of lay testimony about intoxication.

The issue may be more difficult if the observations of the witness amount to evidence of another crime. Generally, CRE 404 bars evidence of other crimes, wrongs, or acts to prove the character of a person and that the person acted in conformity with that character. If the observations amount to evidence of another traffic offense, that conduct will...