Chapter 6 - § 6.3 • EVIDENCE OF BREATH TESTS

• Jurisdiction: Colorado

§ 6.3 • EVIDENCE OF BREATH TESTS

§ 6.3.1—Introduction

If reliably conducted, the results of breath tests to determine the amount of alcohol in the defendant's system are admissible. Ordinarily, this issue of reliability is to be resolved at trial and not during pretrial motions. Provided that the court finds that the test was reliably conducted, it is for the jury to determine what weight to accord the test results and the effect of any irregularities in the testing procedure. The jurors must be instructed regarding the permissive inferences they can draw from test results.

A breath test must have been conducted in substantial compliance with the applicable rules and regulations of the Colorado Department of Public Health and Environment (CDPHE) before the results of the test can be admitted into evidence. The latest amendment to the regulations became effective February 14, 2019, and can be found at the CDPHE Evidential Breath Alcohol Testing (EBAT) webpage, https://cdphe.colorado.gov/laboratory-services/evidential-breath-alcohol-testing-ebat, under "EBAT documents," and in Appendix A to this Benchbook. C.R.S. § 42-4-1301(6)(f); People v. Bowers, 716 P.2d 471 (Colo. 1986). Only those violations of the regulations that call into question the validity of the result itself should bar admission of the results. All other violations of the regulations go only to the weight to be afforded the results. A breath sample should be obtained within a "reasonable" time of the driving, and the fact that a breath sample is not speedily obtained ordinarily goes only to the weight of the chemical result obtained and not to its admissibility. C.R.S. § 42-4-1301(6)(a); People v. Emery, 812 P.2d 665 (Colo. App. 1990). However, Bowers also stands for the proposition that chemical test results should not be admitted unless the court finds that the test was reliably conducted.

Bowers also held that since the issue of the foundation's sufficiency is an issue of evidentiary admissibility — not constitutional suppression — it is a matter to be resolved at trial and not before. CRE 104(c) also allows such determinations to be made in front of the jury, unless justice requires otherwise.

"The factors bearing on admissibility of any particular item of evidence . . . can best be evaluated in the evidentiary state of the record at trial rather than in the artificial atmosphere of a pretrial motion." Higgs v. District Court, 713 P.2d 840, 859 (Colo. 1985). "It is only in the exceptional case that a county court should have reason to conduct a pretrial hearing on the evidentiary, as opposed to constitutional, admissibility of a chemical test of a defendant's breath or blood in connection with a prosecution for driving while under the influence of or impaired by intoxicating liquor." Bowers, 716 P.2d at 473.

The ultimate admission of the test may involve testimony from several different witnesses. Their testimony can be taken in the presence of the jury, subject to the court later admitting the test result, or if not, subject to the testimony being stricken. CRE 104.

The court should consider the danger of a mistrial if the test result is mentioned by the parties, but later ruled inadmissible. It may be advisable to preclude mention of the specific result until the court determines its admissibility. The court can order the parties not to mention the result in opening statement, and to instruct their witnesses not to mention the result until the court rules on admissibility.

Witnesses laying the foundation for the test results can then testify in front of the jury without mentioning the test result. Arguments concerning the adequacy of the foundation, if needed, can take place out of the presence of the jury. If the court admits the results, the jury can return and hear the results. The court should be careful, however, not to give its imprimatur to the test and should avoid statements such as, "The test was reliably conducted, so I'll admit," but instead, "Exhibit C will be admitted," or "The witness may testify as to the result obtained."

Evidence of extrapolation backward in time to prove a defendant's blood alcohol level at the time of driving may be inadmissible. In Emery, 812 P.2d 665, the state obtained two blood samples from the defendant, the first (0.129) nearly three hours after his accident, and the second (0.124) a half hour later. The state's expert testified that, by extrapolating backward in time, the defendant's blood alcohol would have been between 0.184 and 0.164 at the time he had been driving.

The Emery court ruled that when the state's actual test result is high enough to invoke permissive inferences under C.R.S. § 42-4-1301(6), and when the defense has not offered extrapolation or other evidence to attack the state's results, the state's extrapolation is neither probative of any fact of consequence, nor helpful to a jury in determining the issues. It held the extrapolation evidence inadmissible, but also held the admission of the evidence to be harmless error. It did not rule on the scientific reliability of such analysis. The opinion does not necessarily bar such extrapolation evidence if the defense offers evidence attacking the result or to establish a lack of impairment.

§ 6.3.2—The Foundation for Admission

In People v. Bowers, 716 P.2d 471 (Colo. 1986), the Colorado Supreme Court discussed the foundation that must be established before chemical test results could be admitted. At a pretrial motion, the trial court had suppressed a breath test result because the defendant had been under close and continuous observation for only 19 minutes instead of the 20 minutes required by a CDPHE regulation. The court held that strict compliance with the regulation is not a prerequisite for admission of the test result, so long as the court makes a preliminary determination that, by a preponderance of evidence:

• The testing method was scientifically valid and reliable;
• The equipment used was in proper working order;
• The test was conducted by a qualified person; and
• The test was administered following proper procedures.

Id. at 473.

Similarly, in Thomas v. People, 895 P.2d 1040 (Colo. 1995), the Colorado Supreme Court held that breathalyzer tests should be admitted when the prosecution establishes that the testing devices were in proper working order and were operated by a qualified person. There is no requirement that the prosecution make this showing in a particular fashion. Introduction of CDPHE certifications of the instrument and the operator are adequate, but the prosecution may also make this showing through the testimony of the operator or other competent evidence. Id. at 1045. Once a prima facie showing is made on these facts, and evidence is presented that the test was administered in substantial compliance with CDPHE regulations, the results are admissible. Id. at 1045-46. Further evidence going to deficiencies in the instruments, operator, or procedures go to the weight, not the admissibility, of the results. Id. at 1046.

Although the test must be given in compliance with CDPHE regulations, the Bowers court concluded that non-compliance is but one factor to be considered in deciding whether the above-noted foundational requirements have been met:

. . . even though chemical testing of a driver's breath has not been conducted in strict compliance with a Board of Health rule, the test results may nonetheless be admitted if the trial court is satisfied that the proponent of such evidence has adequately established that the breath test actually administered was scientifically valid and reliable and was conducted by a qualified person using properly working testing devices.

Bowers, 716 P.2d at 475.

Additionally, C.R.S. § 42-4-1301(6)(f) provides:

Strict compliance with [CDPHE rules] shall not be a prerequisite to the admissibility of test results at trial unless the court finds that the extent of noncompliance . . . has so impaired the validity and reliability of the testing method and the test results as to render the evidence inadmissible. In all other circumstances, failure to strictly comply . . . shall only be considered in the weight to be given the test results . . . .

Thus, noncompliance with the rules of the CDPHE does not prevent admission of the test result if the prosecution meets its burden of showing, by a preponderance of the evidence, that the test was reliably conducted. See id.; Thomas, 895 P.2d 1040 (substantial compliance when the prosecution establishes that the testing devices were in proper working order and were operated by a qualified person); Aultman v. Motor Vehicle Division, Dep't of Revenue, 706 P.2d 5 (Colo. App. 1985) (prima facie case of compliance with health department rules upon showing simulator tested within acceptable limits, that checklist was followed, and that operator was certified, despite no proof police department instrument was certified); Glasmann v. State, Dep't of Revenue, 719 P.2d 1096 (Colo. App. 1986) (when officer did not keep eyes on the defendant in a fixed stare, but was within presence of the defendant for over 20 minutes, compliance with 20-minute observation rule, pursuant to 5 C.C.R. 1005-2, adequately established); Barone v. State, Dep't of Revenue, 736 P.2d 432, 434 (Colo. App. 1987) (face-to-face observation with a fixed stare not required under 20-minute rule so long as the suspect was in immediate presence of the officer and under his control).

Of course, the opponent of the evidence should be given broad latitude to disclose any irregularities or failure to follow CDPHE regulations, since these matters affect the weight of the evidence and may indicate that the test was not, in fact, reliably conducted. See C.R.S. § 42-4-1301(6)(f).

Generally, the foundation required to admit the results of a chemical test must be provided by the person conducting the test. However, C.R.S. § 16-3-309(5) allows admission of chemical test results "'in the same manner...