Chapter 6 - § 6.6 • OPINION TESTIMONY

• Jurisdiction: Colorado

§ 6.6 • OPINION TESTIMONY

§ 6.6.1—Lay Opinion Concerning Intoxication

A witness who has had both sufficient experience with people under the influence of alcohol, and sufficient contact with the defendant, may usually express a non-expert opinion about the defendant's sobriety, despite the fact that the opinion embraces an ultimate issue in the case. Colorado law is well established that "once the proper foundation has been laid, a lay witness may express an opinion as to whether a defendant was under the influence" of alcohol. Souva, 141 P.3d at 850; People v. Norman, 572 P.2d 819 (Colo. 1977); see also Jones v. Blegen, 420 P.2d 404 (Colo. 1966); Brown v. Hollywood Bar & Café, 942 P.2d 1363 (Colo. App. 1997). Prior to the adoption of the Colorado Rules of Evidence, the Colorado Supreme Court reached this conclusion in Jones v. Blegen, 420 P.2d 404, 407 (Colo. 1966). Since the adoption of the CRE, the case has been cited with approval. People v. Nhan Dao Van, 681 P.2d 932 (Colo. 1984).

Lay opinions differ from expert opinions in that a witness expressing a lay opinion need have no special knowledge, skill, experience, training, or education beyond that of the average witness. CRE 701, 702. A lay opinion is allowed if it is "(a) rationally based on the perceptions of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702." CRE 701.

In DUI cases, for example, a lay witness's opinion that the defendant appeared "drunk" is merely a shorthand rendition of numerous other observations, such as slurred speech; strong odor of alcohol; unsteady balance; bloodshot, watery eyes; etc. Provided that there is a proper foundation, such an opinion may be expressed. The witness must have had (1) sufficient opportunity to observe the defendant, and (2) some experience with both sober and intoxicated persons so that the witness can venture an opinion about the differences between the two groups.

Additionally, CRE 704 provides, "Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact." Read literally, this rule allows a witness to testify that a person was "under the influence of alcohol" or "impaired by alcohol," even though those are ultimate issues in the case. In Jones v. Blegen, 420 P.2d 404, which predated the CRE, the Colorado Supreme Court held that a lay witness who has had "sufficient opportunity to observe the demeanor and conduct of another" may express an opinion as to whether that person was intoxicated. Jones, 420 P.2d at 407. However, the court further held that "[w]hether the ability of a person to drive an automobile has been impaired by the consumption of intoxicating liquor is a subject upon which a...