v. Fuerst

2019 COA 2

• Court: Colorado Court of Appeals
• Decided: January 10, 2019
• Docket: 17CA0772, People
• Status: Published

Opinion

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 section 42-4-1301.1(2)(b)(I), C.R.S.

2018, of the Expressed Consent Statute if the officer has already

requested, and the suspect has completed, an alcohol test under

subsection 1301.1(2)(a)(I). The division answers this question

affirmatively. COLORADO COURT OF APPEALS 2019COA2

Court of Appeals No. 17CA0772 Mesa County District Court No. 16CR706 Honorable Brian J. Flynn, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kim Maurice Fuerst,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division IV Opinion by JUDGE HAWTHORNE Tow and Márquez*, JJ., concur

Announced January 10, 2019

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 Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2018. ¶1 Defendant, Kim Maurice Fuerst, appeals his conviction for

driving while ability impaired (DWAI). We affirm.

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 section

42-4-1301.1(2)(a)(I), C.R.S. 2018, a provision in Colorado’s

Expressed Consent Statute. Defendant chose a breath test. The

1 breath test results showed that defendant’s blood alcohol content

was zero.

¶5 The officer then concluded that “it had to be drugs” and asked

defendant to take a blood test under section 42-4-1301.1(2)(b)(I).

Defendant initially refused and asked to speak to the officer’s

supervisor. The supervising officer told defendant that if he didn’t

take the blood test, his driver’s license would be revoked.

Defendant then agreed to take the blood test.

¶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.

2 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 that would prohibit the second test. Then,

during his closing, defendant argued, among other things, that the

officer couldn’t invoke the Expressed Consent Statute a second time

after he had already selected and completed the breath test.

3 ¶ 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 subsection

1301.1(2)(b)(I) if the officer has already requested, and the suspect

has completed, an alcohol test under subsection 1301.1(2)(a)(I). We

disagree.

¶ 14 Subsection 1301.1(2)(a)(I) authorizes a breath or blood test if

an officer has probable cause to believe a driver is under the

influence of alcohol. Subsection 1301.1(2)(b)(I) authorizes a blood,

saliva, or urine sample if an officer has probable cause to believe a

driver is under the influence of drugs and requiring the test is

4 reasonable. The statute doesn’t say an officer can only do one or

the other. In fact, nothing in the statutory language ties together

subsections 1301.1(2)(a)(I) and (2)(b)(I), other than that the two

provisions are in the same statute. And we disagree with

defendant’s argument that because there’s no express statutory

provision allowing an officer to do both, an officer can’t do both. We

conclude that if the General Assembly had intended to prohibit

what the officer did in this case, it would have included language in

the Expressed Consent Statute specifying that an officer can

proceed under subsection 1301.1(2)(a)(I) or (2)(b)(I), but not both. To

adopt defendant’s interpretation would require us to add words to

the statute, and “[w]e do not add words to the statute or subtract

words from it.” People v. Diaz, 2015 CO 28, ¶ 12 (quoting Turbyne

v. People, 151 P.3d 563, 567 (Colo. 2007)).

¶ 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

5 subsection 1301.1(2)(a)(I), and the plaintiff chose a breath test. Id.

at 536. The breath test was negative for the presence of alcohol.

Id. The arresting officer ultimately testified that “because the

alcohol came back zero” and he still felt that the plaintiff “was

impaired,” he thought at that point that the plaintiff “was under

drugs” because “that could be the only other answer.” Id. Another

officer then requested that the plaintiff provide a urine sample to

test for drugs. Id. Over the next several hours, the plaintiff didn’t

provide a urine sample and his driver’s license was revoked. Id. at

536-37.

¶ 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.

6 ¶ 17 Instead, defendant argues that under Turbyne, 151 P.3d 563,

and section 42-4-1301.1(2)(a.5)(I), the officer couldn’t “change” the

type of test that defendant had originally requested. We conclude

that Turbyne and section 42-4-1301.1(2)(a.5)(I) don’t apply here.

¶ 18 In Turbyne, the officer requested that the defendant submit to

a breath or blood test under subsection 1301.1(2)(a)(I), and the

defendant chose a blood test. Turbyne, 151 P.3d at 565. But,

because the officer faced difficulty in getting the blood test

completed, he required the defendant to submit to a breath test. Id.

at 565-66. Under the version of the Expressed Consent Statute in

effect at that time, the supreme court held that the officer couldn’t

change the type of test that defendant had selected under

subsection 1301.1(2)(a)(I). See id. at 567-72. Soon after the

Turbyne decision, the General Assembly amended the Expressed

Consent Statute by adding section 42-4-1301.1(2)(a.5)(I), providing

that an officer isn’t bound by the driver’s choice between a breath

or blood test under subsection 1301.1(2)(a)(I) if “extraordinary

circumstances” prevent completing the selected test. See People v.

Null, 233 P.3d 670, 678 (Colo. 2010) (discussing the statutory

amendment).

7 ¶ 19 Unlike in Turbyne, where the defendant wasn’t allowed to take

the type of test he had selected under subsection 1301.1(2)(a)(I),

defendant chose a breath test and the officer complied by giving

him that test. After completing that procedure, the officer had

probable cause to believe defendant was under the influence of

drugs, and subsection 1301.1(2)(b)(I) authorized the officer to

request a blood test.

¶ 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 section 16-3-309(5), C.R.S. 2018, by

admitting a laboratory report containing his blood test results. He

8 argues that the witness who testified about the laboratory report

and the blood test results wasn’t sufficiently involved in the process

of testing the blood sample and certifying the results. Again, we

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.

9 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.

The prosecutor followed up by asking, “Does that mean that you

performed the screening, or that you reviewed the screening, in its

entirety, for accuracy? Or, or could it be both?” The CBI

toxicologist responded, “It actually could be both.”

¶ 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.

10 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 section 16-3-309(5)).

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

11 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.

12 ¶ 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 issue. We deem it sufficient that he specified that by

13 signing the laboratory report, he employed the standard,

regimented process in completing the laboratory report.

¶ 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 Section 16-3-309(5) requires that a criminalistics laboratory

report be admitted through the testimony of the employee or

technician “who accomplished” the analysis in the report.

¶ 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 section 16-3-309(5). See Marshall, ¶¶ 20-23. The

court again emphasized that the supervisor didn’t need to have

conducted the original testing. Id. at ¶ 22; see also

Medrano-Bustamante, ¶¶ 26-28 (holding, in a case similar to

Marshall, that the admission of a laboratory report didn’t violate

section 16-3-309(5)).

14 ¶ 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 section 16-3-309(5).

IV. Conclusion

¶ 37 The judgment is affirmed.

JUDGE TOW and JUDGE MÁRQUEZ concur.