v. Jiron

2020 COA 36, 490 P.3d 612

• Court: Colorado Court of Appeals
• Decided: March 5, 2020
• Docket: 17CA0820, 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 March 5, 2020

2020COA36

No. 17CA0820, People v. Jiron — Regulation of Vehicles and Traffic — Alcohol and Drug Offenses — Collateral Attack; Constitutional Law — Fourth Amendment — Searches and Seizures

A division of the court of appeals applies the time bar for

collateral attacks on previous convictions for driving under the

influence set forth in section 42-4-1702, C.R.S. 2019, for the first

time since felony DUI provisions were added to section 42-4-1301,

C.R.S. 2019. Additionally, the divison considers a novel

suppression issue and holds that a responding officer reasonably

concluded that a person driving a car out of the driveway of a house

where an assault had been reported “a couple of minutes” earlier

may have been involved in it. COLORADO COURT OF APPEALS 2020COA36

Court of Appeals No. 17CA0820 Arapahoe County District Court No. 15CR2866 Honorable Phillip L. Douglass, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dorothy Marie Jiron,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI Opinion by JUDGE GROVE Richman and Freyre, JJ., concur

Announced March 5, 2020

Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Dorothy Marie Jiron, appeals her convictions for

felony driving under the influence (DUI) and DUI per se. She

contends, among other things, that the trial court erroneously

denied her motion to suppress and that she should have been

permitted to collaterally attack her 1998 DUI conviction. We affirm.

I. Background

¶2 Officer Jacob Davis responded to an assault reported at a

nearby house. As he approached the house a few minutes later, he

saw a car pull out of the driveway. Without observing a traffic

infraction, he pulled the vehicle over and contacted Jiron, who was

sitting in the driver’s seat.

¶3 During the encounter, Jiron smelled strongly of alcohol, her

speech was slurred, and her eyes were glassy and watery. She was

“uneasy on her feet,” admitted to having consumed “a few beers,”

and performed poorly on voluntary roadside maneuvers.

Concluding that she was “very intoxicated,” Officer Davis arrested

her for DUI. Results of a blood test performed after Jiron was taken

into custody showed that her blood alcohol content (BAC) was .334.

¶4 Jiron’s defense at trial was that she “wasn’t driving,” and

instead “went outside to catch a moment alone” to cool off after an

1 altercation with her landlord (the same altercation that led to the

report of assault). A jury found Jiron guilty of DUI and DUI per se.

At the sentencing hearing, the trial court found, by a

preponderance of the evidence, that Jiron had committed three

prior DUI offenses, and imposed felony convictions for the DUI and

DUI per se counts.

II. Analysis

¶5 Jiron contends that (1) she was entitled to have a jury

determine beyond a reasonable doubt whether she had prior DUI

convictions; (2) the evidence of the prior DUI convictions was

insufficient; (3) the trial court erred by denying her suppression

motion; (4) the trial court erred by admitting evidence concerning

her BAC through a certifying scientist; and (5) the trial court

erroneously admitted expert testimony in the guise of lay witness

testimony. Finding no reversible error, we affirm.

2 A. Felony DUI Determination

¶6 Jiron first contends that her prior DUI convictions were an

element of the offense rather than a sentence enhancer, and

therefore had to be proved to the jury beyond a reasonable doubt.1

¶7 Whether a statutory provision is a sentence enhancer or a

substantive element of an offense is a question of law that we review

de novo. Lopez v. People, 113 P.3d 713, 720 (Colo. 2005). We look

to the plain language of the statute to decide whether the prior

convictions are an element or a sentence enhancer. Vega v. People,

893 P.2d 107, 112 (Colo. 1995). If the legislative intent is clear

from the plain language of the statute, our analysis is complete.

People v. Vigil, 2013 COA 102, ¶ 13.

¶8 “A statutory provision is a sentence enhancer when the

defendant may be convicted of the underlying offense without any

proof of the prior conviction.” People v. Gwinn, 2018 COA 130,

¶ 44. In contrast, elements of a crime are “the legal components

1 Because her argument is conclusory, see People v. Wallin, 167 P.3d 183, 187 (Colo. App. 2007), we do not address Jiron’s contention that “[t]he Colorado Constitution should be interpreted as requiring proof beyond a reasonable doubt to a jury of every fact that increases a sentence.”

3 that are necessary to establish criminal liability.” People v.

Hopkins, 2013 COA 74, ¶ 8. “Thus, a fact is a sentence enhancer

rather than a substantive element of an offense if (1) a defendant

may be convicted of the underlying offense without any proof of the

fact and (2) the fact merely increases the defendant’s potential

punishment.” People v. Quezada-Caro, 2019 COA 155, ¶ 11.

Linking the severity of punishment to the presence or absence of an

identified fact does not automatically make that fact an element.

Gwinn, ¶ 44.

¶9 “Generally, any fact, other than the fact of a prior conviction,

that increases the penalty for a crime beyond the prescribed

statutory maximum must be submitted to a jury and proved beyond

a reasonable doubt.” Id. at ¶ 45 (emphasis added).

¶ 10 With respect to what is required to elevate a DUI charge from a

misdemeanor to a felony, section 42-4-1301(1)(a), C.R.S. 2019,

provides, in relevant part, as follows:

A person who drives a motor vehicle or vehicle under the influence of alcohol or one or more drugs . . . commits driving under the influence. Driving under the influence is a misdemeanor, but it is a class 4 felony if the violation occurred after three or more prior convictions, arising out of separate and distinct criminal

4 episodes, for DUI, DUI per se, or DWAI . . . or any combination thereof.

¶ 11 Section 42-4-1301(2)(a) is structured similarly and uses the

same language with respect to the elevation of a DUI per se charge

from a misdemeanor to a felony. Further, section 42-4-1301(1)(j)

states that the prosecution “shall set forth such prior convictions in

the indictment or information.”

1. Sentence Enhancer or Element

¶ 12 Jiron contends that the legislative intent in establishing felony

DUI was to create a separate offense, not a sentence enhancer. She

argues this interpretation is supported by the structure of the

felony DUI statute, the pleading requirement that the People

include prior convictions in the indictment or information, and

comparisons to various other Colorado statutes. 2

¶ 13 Divisions of this court have split as to whether prior DUI

convictions constitute a sentence enhancer or are an element of

2 Jiron also contends that “[t]o the extent there is any ambiguity in the statute, [she] is entitled to lenity.” Because our conclusion rests on the unambiguous language of the statute, we do not reach this argument. See Candelaria v. People, 2013 CO 47, ¶ 12 (stating rule that when the statutory language is clear, appellate courts do not resort to other rules of statutory construction).

5 felony DUI.3 Compare Quezada-Caro, ¶ 24 (holding prior DUI

convictions are a sentence enhancer rather than an element of

felony DUI), and Gwinn, ¶ 39 (holding prior DUI convictions

constitute a sentence enhancer that do not require a jury finding),

with People v. Viburg, 2020 COA 8M, ¶ 1 (departing from Quezada-

Caro and Gwinn and concluding that prior convictions are an

element of felony DUI that must be proved to a jury beyond a

reasonable doubt).

¶ 14 We agree with Quezada-Caro and Gwinn, and hold that under

section 42-4-1301(1)(a) and (2)(a), prior convictions are a sentence

enhancer that need not be submitted to a jury.

¶ 15 Under the plain language of section 42-4-1301(1)(a) and (2)(a),

defendants can be convicted of DUI and DUI per se without proof of

their prior convictions. Section 42-4-1301(1)(a) describes DUI as

“driv[ing] a motor vehicle or vehicle” while “under the influence of

alcohol or one or more drugs.” And section 42-4-1301(2)(a)

describes DUI per se as “driv[ing] a motor vehicle or vehicle when

3 The supreme court has granted certiorari on this issue in Linnebur v. People, No. 18SC884, 2019 WL 3934483 (Colo. Aug. 19, 2019) (unpublished order).

6 the person’s BAC is 0.08 or more at the time of driving or within

two hours after driving.” With respect to both offenses, the prior

conviction provisions are contained in a separate sentence within

the relevant statutory subsection. Reading the statutory language

in context, see Vigil, ¶ 13, we conclude that section 42-4-1301(1)(a)

“defines the crime” and then subsequently “establish[es] the class[]

of felony.” Hopkins, ¶ 14. This point is illustrated by the fact that a

defendant may be convicted under section 42-4-1301(1)(a) even if

she has no prior convictions for driving under the influence.

¶ 16 Although other statutes place prior conviction sentence

enhancers in a separate section or subsection from the elements of

the offense — see, e.g., § 18-6-401, C.R.S. 2019 (elements of child

abuse and prior conviction sentence enhancer); § 18-6-800.3,

C.R.S. 2019 (elements of domestic violence); § 18-6-801(7)(a), C.R.S.

2019 (domestic violence prior conviction sentence enhancer); § 18-

7-302, C.R.S. 2019 (elements of indecent exposure and prior

conviction sentence enhancer) — “the structure of the statute does

not change its plain language.” Quezada-Caro, ¶ 20. But context

does bear on proper statutory interpretation. Thus, in the statute

prohibiting possession of a weapon by a previous offender (POWPO),

7 the legislature defined the offense — including the required fact of a

qualifying prior conviction — in a single sentence. See § 18-12-

108(1), C.R.S. 2019.4 Because “[t]he prior conviction requirement is

included in the definition” of the crime, it “is an element of the

POWPO offense.” Quezada-Caro, ¶ 18 (citing People v. Dist. Court,

953 P.2d 184, 189 (Colo. 1998)).

¶ 17 Finally, the mere fact that the prior convictions must be

pleaded in the charging document does not prove that they are an

element of the offense. To the contrary, although the prosecution

“shall set forth such prior convictions in the indictment or

information,” § 42-4-1301(1)(j), a division of this court has

concluded that according to the DUI statute’s plain language, “prior

DUI convictions constitute sentence enhancers that do not require a

jury finding, rather than elements of the crime that do.” Gwinn,

¶ 39. Because we agree with the reasoning of the division in Gwinn,

we conclude that under the DUI statute, prior DUI convictions are a

4 The elements of POWPO are that (1) the defendant, (2) in the State of Colorado, at or about the date and place charged, (3) subsequent to being convicted of a qualifying felony, (4) knowingly (5) possessed, used, or carried upon her person any weapon that is subject to the provisions of title 18, article 12. See § 18-12-108(1) C.R.S. 2019.

8 sentence enhancer, and not an element of a DUI offense. See id. at

¶¶ 43-53. But see Viburg, ¶ 12 (“[T]he General Assembly would not

have required the prosecutor to plead the prior offenses in the

indictment or information unless it had intended prior convictions to

be elements of the offense.”).

¶ 18 Based on the plain language of the statute, we conclude that

prior DUI convictions are a sentence enhancer rather than an

element of felony DUI. Thus, the trial court properly applied the

preponderance of the evidence standard in determining the

existence and validity of the prior convictions.

2. Apprendi/Blakely Prior Conviction Exception

¶ 19 Jiron next contends that under Apprendi v. New Jersey, 530

U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004),

she was entitled to a jury finding as to the existence of her prior

convictions. We disagree because our supreme court has held that

prior convictions are excepted from Apprendi, see Misenhelter v.

People, 234 P.3d 657, 660-61 (Colo. 2010), and we are bound by

supreme court precedent. Thus, contrary to Jiron’s claim, if the

sentence enhancer is a prior conviction, the defendant does not

9 have a constitutional right to have a jury decide whether she had

such a prior conviction. See Gwinn, ¶ 45.

3. Equal Protection

¶ 20 Finally, for the first time on appeal, Jiron contends that “the

Felony DUI scheme violates equal protection” because it prescribes

different penalties for the same conduct. In Quezada-Caro, ¶ 32, a

division of this court rejected this argument “[b]ecause the statutes

proscribe different conduct, for which the legislature may impose

different penalties.” We agree with this reasoning, and therefore

conclude that the DUI statutes do not violate Jiron’s right to equal

protection.

B. Sufficiency of the Evidence

¶ 21 Jiron next contends that the prosecution did not present

sufficient evidence to prove that she had been convicted of three

prior DUI offenses. Specifically, Jiron argues that (1) the trial court

erroneously applied the statutory time bar to her collateral attack

on one of the convictions and (2) the prosecution did not establish a

“connecting link” showing that she was the person convicted in the

prior cases. We address and reject each contention in turn.

10 1. Time Bar

¶ 22 Jiron contends that the trial court erred when it found that

her collateral challenge to her 1998 DUI conviction was time barred

because (1) a statute may not infringe on the right to challenge

prior convictions where the conviction was obtained in violation of

the right to counsel; and (2) even if the statutory time bar applies,

she established justifiable excuse or excusable neglect.

¶ 23 A defendant charged with felony DUI may attack the

constitutional validity of her prior impaired driving convictions. See

People v. Roybal, 618 P.2d 1121, 1124 (Colo. 1980). And an

unconstitutionally obtained conviction cannot be used in a later

proceeding to support guilt or enhance punishment. Id.

¶ 24 However, a motion collaterally attacking the validity of a

judgment entered for a prior DUI must be filed “within six months

after the date of entry of the judgment.” § 42-4-1702(1), C.R.S.

2019. Jiron was convicted of a DUI on November 4, 1998.

Therefore, unless an exception applied (a question that we review de

novo, see Close v. People, 180 P.3d 1015, 1019 (Colo. 2008)), the

time bar for Jiron to collaterally attack her 1998 DUI conviction

expired on May 4, 1999. She did not do so until March 7, 2017.

11 ¶ 25 The overwhelming majority of cases addressing time

limitations on collateral attacks do so in the context of section 16-5-

402, C.R.S. 2019.5 However, because both statutes establish an

exception for “justifiable excuse or excusable neglect,” and since the

time bar pertaining to traffic convictions was enacted after section

16-5-402, cases interpreting section 16-5-402 can fairly be

assumed to apply to section 42-4-1702 as well. See People v.

Trimble, 839 P.2d 1168, 1171-72 (Colo. 1992) (holding a trial court

should consider whether “justifiable excuse or excusable neglect”

justified an otherwise untimely collateral attack); People v. Fleming,

781 P.2d 1384, 1387 n.5 (Colo. 1989) (holding that the five-year

grace period that the supreme court had previously held was

implied by section 16-5-402 would also apply to postconviction

challenges filed pursuant to section 42-4-1501.5, C.R.S. 1984

(repealed 1994)).

5 Section 16-5-402, C.R.S. 2019, is general in scope and establishes different limitation periods for felonies, for misdemeanors, and for petty offenses. In contrast, section 42-4-1702, C.R.S. 2019, was enacted as part of the Uniform Motor Vehicle Law, see § 42-1-101, C.R.S. 2019, and by its plain terms allows only collateral challenges to alcohol- and drug-related driving offenses. Thus, section 42-4- 1702, a more specific statute, controls. § 2-4-205, C.R.S. 2019.

12 ¶ 26 Factors in addressing the issue of justifiable excuse or

excusable neglect include: (1) whether there are circumstances or

outside influences preventing a challenge to a prior conviction and

the extent to which the defendant having reason to question the

constitutionality of a conviction investigates its validity and takes

advantage of relevant avenues of relief that are available;

(2) whether a defendant had any previous need to challenge a

conviction and either knew that it was constitutionally infirm or

had reason to question its validity; (3) whether a defendant had

other means of preventing the government’s use of the conviction,

so that a postconviction challenge was previously unnecessary; and

(4) whether the passage of time affects the State’s ability to defend

against the challenge. People v. Wiedemer, 852 P.2d 424, 441-42

(Colo. 1993).

¶ 27 Before the sentencing hearing, defense counsel moved to

suppress Jiron’s conviction in Arapahoe County case number

98M101348, arguing that it had been unconstitutionally obtained.6

6Specifically, Jiron argued that her 1998 conviction was constitutionally infirm as the result of the application of section 16- 7-301(4)(a), C.R.S. 1998, which, at the time, encouraged indigent

13 She argued that the time bar should not apply because, before the

felony DUI statute was passed, a defendant had no need to

collaterally challenge a misdemeanor DUI conviction.

¶ 28 Jiron advances the same argument on appeal, contending that

her failure to seek relief within the applicable time period was the

result of circumstances amounting to justifiable excuse or

excusable neglect because “[p]rior to August 2015,” when the felony

DUI law took effect, “there was little reason to challenge

unconstitutionally obtained DUI convictions.” The record, however,

belies this assertion. Jiron’s 1998 conviction affected her sentence

for her second and third DUIs, including by mandating jail time for

her 2011 conviction. See § 42-4-1301(7), C.R.S. 2005 (sentencing

provision in effect for 2005 conviction); § 42-4-1307(6), C.R.S. 2010

(sentencing provision in effect for 2011 conviction). As the trial

court noted, at the time of that conviction

defendants charged with a misdemeanor, petty offense, or traffic offense to engage in uncounseled plea negotiations with the prosecutor before qualifying for the appointment of counsel. Facing questions about the constitutionality of this arrangement in the wake of Rothgery v. Gillespie County, 554 U.S. 191 (2008), the General Assembly amended section 16-7-301(4)(a) in 2013. Ch. 306, sec. 1, § 16-7-301, 2013 Colo. Sess. Laws 1622-23.

14 the United States Supreme Court had already said that you are entitled to a lawyer for a misdemeanor charge that could involve jail time. Her 201[1] conviction involved jail time . . . and more jail time because of the 1998 conviction. So after the Supreme Court spoke, she had a need to do it, she had a reason to do it, and she didn’t.

¶ 29 Jiron does not explain what steps, if any, she took between

1998 and 2017 to investigate the validity of the conviction or why

she did not take advantage of the avenue of relief that is statutorily

provided in section 42-4-1702 to challenge the conviction. Nor does

Jiron explain why, when she was charged in this case, she did not

promptly challenge the validity of the 1998 conviction. Even if

Jiron had no need to challenge that conviction before she was

charged, she certainly did once it became clear that the conviction

was integral to the prosecution’s case. As the trial court recognized,

even “giving [Jiron] every benefit of the doubt,” the collateral attack

“should have been brought within six months of November of 2015

[when Jiron was charged in this case], and was not.” In fact, Jiron

did not file her collateral attack until just before sentencing — more

than fourteen months after she was charged with felony DUI.

15 ¶ 30 We also reject Jiron’s argument that under Custis v. United

States, 511 U.S. 485, 487 (1994), she should have been allowed to

challenge her 1998 conviction irrespective of the statutory time bar

because a statute may not infringe the right to challenge a prior

conviction where the conviction was obtained in violation of the

right to counsel. In Custis, the United States Supreme Court held

that a defendant who is subject to mandatory enhanced sentencing

under the Armed Career Criminal Act has no constitutional right to

collaterally attack her underlying state convictions in the federal

courts “with the sole exception of convictions obtained in violation

of the right to counsel.” Id. But, irrespective of a defendant’s

grounds for asserting that her previous conviction was

unconstitutionally obtained, Custis did not abrogate a state’s ability

to set time limits on collateral attacks. See Wiedemer, 852 P.2d at

434 (“It is well settled that states may attach reasonable time limits

to the assertion of federal constitutional rights.”); see also People v.

Vigil, 955 P.2d 589, 591 (Colo. App. 1997) (holding that a lack of

counsel does not amount to justifiable excuse or excusable neglect

under section 16-5-402). And collateral attacks on alcohol- or

drug-related traffic offenses are subject to section 42-4-1702(1),

16 which, as relevant here, precludes a collateral attack on the validity

of a judgment unless the attack is commenced within six months

after the date of entry of the judgment.

¶ 31 Thus, Jiron’s explanation for the substantial delay in

collaterally attacking her previous DUI conviction does not establish

justifiable excuse or excusable neglect.

2. The State’s Proof of Prior Convictions

¶ 32 Jiron next contends that “the State failed in its burden of

proving that [she] had three prior DUI convictions.”

¶ 33 We review the sufficiency of the evidence de novo. See People

v. Strock, 252 P.3d 1148, 1155 (Colo. App. 2010). We look at the

evidence as a whole and in the light most favorable to the

prosecution to determine if it “is substantial and sufficient to

support a conclusion by a reasonable person that the defendant” is

the person previously convicted. People v. Carrasco, 85 P.3d 580,

582 (Colo. App. 2003). The prosecution is given the benefit of every

inference that may reasonably be drawn from the evidence. Id. at

583. To establish by a preponderance of the evidence that Jiron

had three prior convictions, the prosecution was required to show

that it was “more likely than not” that Jiron is the same person who

17 was convicted in the three prior incidents. People v. Groves, 854

P.2d 1310, 1313 (Colo. App. 1992).

¶ 34 At the sentencing hearing, the prosecution presented the

following evidence of Jiron’s prior convictions:

• a certified Division of Motor Vehicles (DMV) record;

• a certified sentencing order, register of actions, and plea

agreement for Arapahoe County case number

98M101348;

• a certified register of actions and plea agreement for

Denver County case number 00M00320; and

• a certified sentencing order, waiver of advisal of rights,

and register of actions for Adams County case number

10CR1867.

¶ 35 Defense counsel focused his argument on the 1998 conviction,

arguing that the evidence was insufficient to show that Jiron was

the same person who was convicted because the defendant’s name

on the supporting documentation was “Dorothy Marie Velasquez”

and the prosecution presented a plea to a probation violation,

rather than a plea to DUI.

18 ¶ 36 The trial court took judicial notice of Jiron’s signature in the

court file, compared it to the signatures on the supporting evidence,

and found the signatures to be consistent. See CRE 901(b)(3). It

also compared the photograph in the DMV record to Jiron as she

appeared in the courtroom and determined that the photograph was

of Jiron. The trial court acknowledged that the 1998 case involved

a probation violation plea agreement, but also noted that the

underlying case involved a conviction for DUI. Accordingly, the trial

court found that Jiron had three prior convictions for DUI.

¶ 37 Jiron contends that the evidence presented is insufficient to

provide the “connecting link” between the prior convictions and

Jiron because

[t]here were no fingerprints submitted for the prior convictions. Nor were there photographs. There was no sentencing order to support the 2000 conviction, and the sentencing orders for the 1998 case and the 2010 case were not from the initial sentencing hearings. Indeed, the 1998 conviction had a different name.

¶ 38 The DMV record included Jiron’s photograph, full legal name,

date of birth, address, and signature. It also included a listing of all

activity related to her driving history, which included her three prior

DUIs:

19 (1) Entry 043 showed a citation for DUI by the Englewood

Police Department with a violation date of June 13, 1998,

a conviction date of November 4, 1998, and a citation

number of 221880.

(2) Entry 036 had a citation for DUI by the Denver Police

Department with a violation date of January 9, 2000, a

conviction date of August 15, 2005, and a citation

number of 00M00320.

(3) Entry 027 showed a citation for DUI by the Adams

County Sheriff’s Department with a violation date of July

3, 2010, a conviction date of January 11, 2011, and a

citation number of 10-9096.

¶ 39 With respect to Arapahoe County case number 98M101348,

the People introduced the sentencing order, register of actions, and

plea agreement, which were in the name of “Dorothy Marie

Velasquez” — Jiron’s former name — but listed the same date of

birth as the DMV record. The sentencing order and plea agreement

were for a violation of probation in 2004, but they referred to the

underlying guilty plea to DUI that originally placed Jiron on

probation. The register of actions listed personal identifying

20 information that matched the DMV record; it also listed an offense

date as well as a ticket number for Jiron’s DUI charge, and reflected

a guilty plea to that charge with a sentence to probation.

¶ 40 As for Denver County case number 00M00320, the People

introduced the register of actions and plea agreement, which were

in Jiron’s legal name with the same date of birth as the DMV record

and documents from Arapahoe County case number 98M101348.

The first page of the register of actions under the “Party

Information” section listed not only Jiron’s legal name, but that she

was also known as “Dorothy Marie Velasquez.” The register of

actions also listed the charging date and the dates on which Jiron

pleaded guilty and was sentenced. The plea agreement included

Jiron’s signature, an elemental advisement with the entry for “DUI

with a prior DUI” circled, and a copy of the original summons and

complaint listing number 00M00320 as well as her driver’s license

number — which matched the DMV record — and other personal

identifying information.

¶ 41 Finally, with respect to Adams County case number

10CR1867, the People introduced a sentencing order, waiver of

advisal of rights, and register of actions, which included Jiron’s

21 legal name and the date of birth in her DMV record. Page one of the

register of actions listed Jiron’s various aliases — including the

name “Dorothy Marie Velasquez” — as well as other personal

identifying information matching the DMV record. The register of

actions reflected the date that Jiron was charged, the ticket

number, her guilty plea, and the sentencing date.

¶ 42 Reviewing the evidence as a whole and in the light most

favorable to the prosecution, we conclude that it supports the trial

court’s finding, by a preponderance of the evidence, that Jiron had

committed at least three prior DUI offenses.

C. Motion to Suppress

¶ 43 Jiron argues that the trial court erroneously denied her

motion to suppress. Although it is a close call, we conclude that

there was no error.

¶ 44 Before trial, Jiron moved to suppress evidence collected from

the traffic stop that led to her arrest, arguing that it was an

investigatory detention that took place without reasonable

articulable suspicion. In a detailed written order issued after a two-

day hearing, the trial court concluded that Officer Davis had

22 reasonable suspicion to conduct the investigatory stop. It therefore

denied Jiron’s motion.

¶ 45 Review of a suppression order presents a mixed question of

fact and law. People v. Brown, 2019 CO 63, ¶ 8. We accept the

trial court’s findings of fact that are supported by competent

evidence, but we review the application of the law to those facts de

novo. Id.

¶ 46 A police officer may conduct a brief investigatory stop if he has

“a specific and articulable basis in fact for suspecting that criminal

activity has occurred, is taking place, or is about to take place.” Id.

at ¶ 10 (quoting People v. Perez, 690 P.2d 853, 855 (Colo. 1984)). In

determining whether an officer had reasonable suspicion, courts

look to the totality of circumstances, keeping in mind that “[a]n

officer is entitled to draw reasonable inferences from all the

circumstantial evidence ‘even though such evidence might also

support other inferences.’” Id. at ¶ 11 (quoting People v. Threlkel,

2019 CO 18, ¶ 20). Relevant factors include

(1) the particularity of the description of the offender or the vehicle in which he fled; (2) the size of the area in which the offender might be found, as indicated by such facts as the elapsed time since the crime occurred; (3) the

23 number of persons about in that area; (4) the known or probable direction of the offender’s flight; (5) observed activity by the particular person stopped; and (6) knowledge or suspicion that the person or vehicle stopped has been involved in some criminality of the type presently under investigation.

Id. (quoting People v. Bell, 698 P.2d 269, 272 (Colo. 1985)).

¶ 47 Following a hearing on Jiron’s motion to suppress, the trial

court made detailed factual findings relating to the grounds for the

traffic stop. As relevant here, those findings included the following.

• While on routine patrol, Officer Davis received

information over dispatch that an individual had reported

that his roommate, Dorothy Jiron, had assaulted him at

their shared residence.

• Officer Davis was nearby when the call was reported by

dispatch, so he responded to the address, without lights

and sirens, and arrived “within a couple of minutes of the

dispatch.”

• “Based on the information Officer Davis had from

dispatch, there was no reason for him to believe that the

suspect had left the residence.”

24 • When he arrived, Officer Davis “observed a Red Pontiac

Grand Am pull out of the driveway of that specific

address. The vehicle proceeded northbound on

Pennsylvania and passed Officer Davis.”

• Officer Davis could not see who was driving the car, nor

did he see it commit any traffic infractions.

• Nonetheless, because the vehicle was leaving the house

where the alleged assault had occurred, Officer Davis

suspected that the driver was involved in some way with

the reported assault. He therefore pulled the vehicle

over.

¶ 48 While subsequent investigation confirmed Officer Davis’s

suspicion that the driver of the car (Jiron) was involved in the

reported alleged assault, and also revealed that Jiron might be

intoxicated (thereby justifying the escalation from an investigatory

stop to a custodial one), we are concerned only with whether the

events described above violated the Fourth Amendment’s

prohibition against unreasonable searches and seizures. See

Florida v. J.L., 529 U.S. 266, 271 (2000) (“The reasonableness of

25 official suspicion must be measured by what the officers knew

before they conducted their search.”).

¶ 49 Relying in large part on the analysis and holding in United

States v. Bohman, 683 F.3d 861 (7th Cir. 2012), Jiron contends

that Officer Davis’s search violated the Fourth Amendment because,

as she puts it, “[l]eaving the scene of an alleged crime, without

more, is insufficient to establish reasonable suspicion.” Bohman,

however, is distinguishable. In that case, police were surveilling a

hunting cabin that a tipster — who “wanted to ‘snitch in exchange

for consideration on his charges’” — claimed had been used to cook

methamphetamine “three times in the past two months.” Id. at 862

(citation omitted). When a vehicle left the property, an officer pulled

it over without observing a traffic violation, questioned the

occupants, and discovered incriminating evidence.

¶ 50 The Seventh Circuit held that, under these facts, the officer

had nothing more than a hunch that illegal activity was occurring

at the hunting cabin. But a hunch was not enough. See Terry v.

Ohio, 392 U.S. 1, 27 (1968). All that the officer knew when he

stopped the departing car was that an inmate looking for favorable

treatment had claimed that the cabin was occasionally used for

26 criminal activity. Surveillance conducted before the stop yielded

nothing that either confirmed or undermined this claim. And the

vehicle that the officer stopped did not match the description that

the tipster had provided. In short, when the officer “stopped the car

he did so because it emerged from a forty-acre tract containing a

suspected meth cook site.” Bohman, 683 F.3d at 865. That

observation fell short of justifying the stop because “[a] mere

suspicion of illegal activity at a particular place is not enough to

transfer that suspicion to anyone who leaves that property.” Id. at

864.

¶ 51 In holding that the traffic stop was not constitutionally

justified, the Bohman court carefully distinguished United States v.

Brewer, 561 F.3d 676 (7th Cir. 2009), a case that we find

particularly relevant to the facts here. In Brewer, a police officer

learned from dispatch that a fight had been reported at a nearby

apartment complex. As he prepared to respond, the officer “heard a

popping sound that he believed was gunfire coming from the

complex.” Id. at 677. “Within minutes he was told by the

dispatcher that indeed shots had been fired,” id., and “saw a vehicle

emerge seconds later from the complex,” id. at 679. The hour was

27 late and the subject vehicle was the only car on the road, so the

officer “radioed to other officers to watch” for it. Id. at 677. They

did so and pulled it over — based solely on the officer’s

description — a short time later. Id.

¶ 52 The Brewer court held that “the case is on the line between

reasonable suspicion and pure hunch.” Id. at 678. But after

considering the totality of the circumstances, including the fact that

the defendant was driving the only vehicle on the only road exiting

the complex, the court concluded that those circumstances

amounted to reasonable suspicion. Id.

¶ 53 Officer Davis had more to go on than the police did in Bohman.

Unlike the officers there, Officer Davis was not investigating a claim

that criminal activity occasionally occurred at the address in

question. Rather, he was responding to a report that someone had

just been assaulted at a specific residential address and that the

assailant and her boyfriend (who was also present) were drunk. He

arrived “within a couple of minutes” of the call to see a car exiting

the driveway of the single-family home that was the source of the

call. Much like the officer in Brewer, who “natural[ly] surmise[d]

that whoever fired the shots had left the complex,” 561 F.3d at 678,

28 it was reasonable for Officer Davis to deduce that the person driving

the car away from the house where the incident had just been

reported may have been involved in it. And because Officer Davis

arrived at the scene in time to see the car pull out of the driveway,

the potential link between the vehicle and the reported crime was

more firmly established than it was in Brewer. See United States v.

Jackson, 700 F. App’x 411, 416 (6th Cir. 2017) (noting that

“proximity can be a relevant factor in forming reasonable

suspicion”).

¶ 54 To be sure, if Officer Davis had arrived at the scene a few

seconds later, he might not have seen Jiron’s car pull out of the

driveway and our calculus might be different. But on these facts,

we conclude that there was a substantial enough connection

between the report of a crime and the vehicle leaving the scene to

arouse reasonable suspicion on the part of an investigating officer.

Accordingly, we discern no error in the trial court’s ruling.

D. “Certifying Scientist” Testimony

¶ 55 Jiron next contends that the admission of evidence concerning

her BAC through Isaac Avram, the certifying scientist in the

analysis of Jiron’s blood sample, violated (1) her constitutional right

29 to confrontation; (2) her statutory right to in-person testimony; and

(3) the rule against implied hearsay. We address and reject each

contention in turn.

1. Preservation

¶ 56 The parties agree, as do we, that Jiron preserved her claims as

they relate to confrontation and in-person testimony. The parties

dispute whether Jiron preserved her implied hearsay argument.

Jiron asserts that a hearsay objection was included in defense

counsel’s objection to the admission of the lab report under

Bullcoming v. New Mexico, 564 U.S. 647, 652 (2011), which held

that “a forensic laboratory report containing a testimonial

certification — made for the purpose of proving a particular fact —

through the in-court testimony of a scientist who did not sign the

certification or perform or observe the test reported in the

certification” is inadmissible “surrogate testimony” if a defendant

demands in-person testimony and the analyst who conducted the

test does not testify. But the People respond that, although defense

counsel argued that the testimony did not satisfy the requirements

of Bullcoming, defense counsel did not object on hearsay grounds.

We agree with the People.

30 ¶ 57 Before trial, defense counsel filed a request for in-person

testimony. On the morning of trial, the prosecutor told the trial

court that the laboratory employee she was calling was the

certifying scientist, Avram, and not the analyst who actually

analyzed the blood sample. Defense counsel objected, asserting

Jiron’s right to confrontation. The court deferred ruling.

¶ 58 Avram testified and was tendered as an expert in the field of

blood analysis. Defense counsel had no objection to this

qualification, but stated he “would object if there was any attempt

to bring out further testimony as far as forensic toxicology or

opinions on -- the results of analysis.” When the prosecutor moved

to admit the BAC report, defense counsel objected to “foundation

and chain of custody.” Later, Avram testified that he did not have

any reason to doubt the reliability of the test results and defense

counsel objected that Avram’s statement “calls for speculation.”

Finally, defense counsel supplemented his objection, under the

Sixth Amendment of the United States and Colorado Constitutions

and Bullcoming and Marshall v. People, 2013 CO 51, “that [Avram’s]

testimony does not meet what the court found to be sufficient for

confrontation purposes in Marshall. And, therefore, that evidence

31 should not be presented to the jury, absent the opportunity to

confront . . . the analyst who actually performed the test[.]”

¶ 59 Because defense counsel did not raise a hearsay objection, the

implied hearsay claim Jiron presents on appeal was not preserved.

See People v. Ujaama, 2012 COA 36, ¶ 37. As a result, we will

reverse only if the trial court committed plain error. Id.; see Crim.

P. 52(b).

2. Confrontation Clause and Section 16-3-309(5)

¶ 60 We first address Jiron’s contentions that allowing a certifying

scientist to testify to the results of the chemical analysis violated

her constitutional right to confrontation and statutory right to in-

person testimony.

¶ 61 We review confrontation claims and a district court’s

evidentiary rulings under section 16-3-309(5), C.R.S. 2019, de

novo. Bernal v. People, 44 P.3d 184, 198, 200 (Colo. 2002); People

v. Hill, 228 P.3d 171, 173 (Colo. App. 2009).

¶ 62 The United States and Colorado Constitutions guarantee a

criminal defendant the right to confront the witnesses against her.

U.S. Const. amend. VI; Colo. Const. art. II, § 16; People v. Fry, 92

P.3d 970, 975 (Colo. 2004). Thus, the out-of-court testimonial

32 statements of a witness who does not appear at trial are barred

unless (1) the witness is unavailable and (2) the defendant had a

prior opportunity for cross-examination. Crawford v. Washington,

541 U.S. 36, 54 (2004). Forensic laboratory reports are testimonial

in nature, Bullcoming, 564 U.S. at 665, and are only admissible

when the defendant has the opportunity to cross-examine the

person who prepared the report. Id. at 658; see also Cropper v.

People, 251 P.3d 434, 436 (Colo. 2011).

¶ 63 Bullcoming held that a “surrogate” analyst who did not observe

the test or sign the certified report could not testify about the

report’s contents. 564 U.S. at 661. But more recently, our

supreme court held that a supervisor’s testimony satisfies the

Confrontation Clause when the supervisor prepares or signs the

report and independently reviews the testing data. Marshall, ¶ 19.

¶ 64 As noted, Avram was called by the prosecution and was

certified as an expert in blood analysis. Avram described generally

the steps involved in the testing process and explained that each

test requires both an analyst and a certifying scientist in order to

generate a valid result. The only difference between the analyst and

the certifying scientist is that the “analyst will sample the blood

33 sample and load it on the instrumentation” involved in the analysis,

“[a]nd then after that, the analyst and the certifying scientist will

conduct all of the same steps.” Avram testified that his involvement

in this case was as a certifying scientist, which he confirmed

required him to “independently review[] the calibration and all of the

data the analyst would have reviewed” and to ensure the standard

operating procedures of the laboratory were followed. Avram

further testified that, as a certifying scientist, he “did not have any

direct contact with the blood” and he was not a supervisor. The

court admitted the report of analysis and Avram testified that

Jiron’s BAC was .334.

¶ 65 Here, as in Marshall and People v. Fuerst, 2019 COA 2,

Avram’s testimony satisfied the requirements of the Confrontation

Clause and section 16-3-309(5). In Marshall, the supervisor

oversaw the testing process, reviewed the data generated by the

test, reviewed the testing instruments themselves, reviewed the

analysts’ testing notes to determine the accuracy of the procedures

the analysts employed, and certified and signed off on the report

generated. Marshall, ¶ 19. Our supreme court concluded that this

34 level of involvement sufficiently protected the defendant’s right of

confrontation. Id. at ¶ 20.

¶ 66 Similarly, although Avram was not a supervisor, he

participated in the testing process as the certifying scientist,

reviewed the data and came to an independent conclusion, ensured

that the standard operating procedures of the laboratory were

followed, and approved the results. Notably, other than loading the

blood sample into the instrument, the analyst and the certifying

scientist conducted “all of the same steps.” This was not merely

“surrogate testimony,” but was testimony from one integrally

involved in the testing process “who accomplished the requested

analysis.” § 16-3-309(5); see Marshall, ¶¶ 22-23.

¶ 67 We are not persuaded otherwise by Jiron’s argument that

Avram was not a supervisor. The lack of formal supervisory

authority is “immaterial” where, as here, the witness “led the

process of reviewing the test results, employed the [lab’s] quality

control process,” and approved the results. Fuerst, ¶ 33.

3. Implied Hearsay

¶ 68 We next address Jiron’s contention that the certifying

scientist’s testimony was inadmissible implied hearsay.

35 ¶ 69 We review evidentiary issues for an abuse of discretion. People

v. Stewart, 55 P.3d 107, 122 (Colo. 2002). Because this portion of

Jiron’s argument is unpreserved, we review these statements for

plain error and will reverse only if they “so undermined the

fundamental fairness of the trial itself so as to cast serious doubt

on the reliability of the judgment of conviction.” Hagos v. People,

2012 CO 63, ¶ 14 (quoting People v. Miller, 113 P.3d 743, 750 (Colo.

2005)).

¶ 70 Hearsay is “a statement other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to prove

the truth of the matter asserted.” CRE 801(c). The rule against

hearsay encompasses not only verbatim out-of-court statements,

but also implied hearsay or testimony that raises an inference of

out-of-court statements. See Golob v. People, 180 P.3d 1006, 1010-

11 (Colo. 2008); People v. Griffin, 985 P.2d 15, 17 (Colo. App. 1998).

Unless an exception applies, hearsay statements are generally

inadmissible. CRE 802.

¶ 71 Under CRE 703, Avram’s testimony is properly classified as

nonhearsay because he performed his own independent review and

reached an independent conclusion in the case. See CRE 703

36 (permitting an expert to testify to facts and data that are otherwise

inadmissible in evidence so long as they formed the basis of the

expert’s opinion and are of the type reasonably relied upon by

experts in the field). Accordingly, we perceive no reversible error in

admitting Avram’s statements.

E. Admissibility of Officer Testimony

¶ 72 Finally, Jiron contends the trial court erred by allowing

testimony from Officer Davis regarding roadside sobriety

examinations and blood draws when he was not qualified as an

expert witness.

¶ 73 Officer Davis testified that he had conducted approximately

thirty to forty DUI investigations during his six years on the police

force. He explained that he was trained in three roadside

maneuvers — the horizontal gaze nystagmus (HGN) test, the walk

and turn, and the one-leg stand — and then discussed what each of

those maneuvers involved, what he was looking for, and how Jiron

performed. Regarding the HGN test, Officer Davis testified that

“[n]ystagmus, by definition, is the involuntary jerking of the eyes. If

you move your eyes side to side, as a sober person your eyes will

move very smoothly.” Defense counsel objected that “this is getting

37 into expert testimony,” and the court overruled the objection. Next,

Officer Davis testified that on each of the maneuvers, he noticed

clues of intoxication, leading him to conclude that, “[t]hrough my

training and experience, this Defendant was very intoxicated.”

¶ 74 Officer Davis then testified that about thirty percent of his DUI

investigations had involved blood draws, and that he was present

for Jiron’s blood draw. The prosecutor asked Officer Davis if there

was “anything concerning or out of the ordinary with the blood

draw that you observed” in this case. After the trial court overruled

defense counsel’s objection, Officer Davis answered that he had not

seen anything unusual.

¶ 75 We review evidentiary rulings for an abuse of discretion.

Campbell v. People, 2019 CO 66, ¶ 21. A trial court abuses its

discretion when its ruling is manifestly arbitrary, unreasonable, or

unfair. Id.

¶ 76 If we determine that a trial court has abused its discretion

regarding a preserved, nonconstitutional issue, then we must

consider whether the error was harmless. Id. at ¶ 22. Under this

standard, reversal is required only if the error affected the parties’

substantial rights. Id.

38 ¶ 77 Here, whether the trial court abused its discretion by

admitting Officer Davis’s testimony turns on whether the testimony

was improper under CRE 701. Stewart, 55 P.3d at 122. We rely on

CRE 701, which governs the admission of opinion testimony by a

lay witness, rather than CRE 702 governing expert testimony,

because the prosecution did not seek to qualify Officer Davis as an

expert witness. Id. CRE 701 provides:

If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (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.

¶ 78 The application of CRE 701 to police officer testimony “has

generated equal measures of confusion and controversy.” Stewart,

55 P.3d at 123. Law enforcement officers are often qualified as

experts to offer certain types of specialized testimony, such as

accident reconstruction, but also regularly offer lay opinion

testimony under CRE 701 “based on their perceptions and

experiences.” Id. “Officer testimony becomes objectionable when

39 what is essentially expert testimony is improperly admitted under

the guise of lay opinions.” Id.

¶ 79 In Campbell, ¶ 31, our supreme court recently concluded that

a law enforcement officer’s testimony describing the results of HGN

testing was impermissible expert testimony by a lay witness.

Focusing in large part on the officer’s extensive discussion of his

training and experience in administering and interpreting HGN

tests, the court also pointed out that the prosecutor elicited

answers from the officer on direct examination that were “not the

type of testimony that someone with only a lay understanding could

have been expected to offer.” Id. at ¶¶ 27-29. Nevertheless, the

court found that the error was harmless, given the overwhelming

evidence proving that the defendant was intoxicated. Id. at ¶¶ 35-

41.

¶ 80 Jiron contends that Officer Davis improperly testified as an

expert when he (1) testified that Jiron was “very intoxicated”; (2)

testified that there was nothing unusual about the blood draw in

this case; and (3) defined the term “nystagmus.”

¶ 81 It is well established that lay witnesses may opine as to

whether a defendant was intoxicated. People v. Souva, 141 P.3d

40 845, 850 (Colo. App. 2005). Officer Davis’s testimony that Jiron

was “very intoxicated” was a proper lay opinion based on his

perceptions and observations, not any specialized skill or

experience. See id.

¶ 82 We acknowledge that, under Campbell, the officer’s description

of the HGN test exceeded the permissible scope of lay testimony.

However, even if we were to assume that his testimony about the

blood draw procedure was also improper, any error in admitting

this evidence was harmless.

¶ 83 Officer Davis testified that Jiron smelled strongly of alcohol,

her speech was slurred, her eyes were glassy and watery, she was

uneasy on her feet, and she admitted to drinking a few beers before

driving. The People admitted evidence showing that Jiron’s BAC

was .334. The jury instructions provided that if Jiron’s blood

alcohol content exceeded 0.08, the jury could infer that she was

under the influence of alcohol. Jiron “never denied that she had

something to drink that night”; rather, she “admitted to drinking”

and her defense at trial was that she was sitting in her car “to catch

a moment alone, but she wasn’t driving.”

41 ¶ 84 Given the overwhelming evidence of Jiron’s intoxication, as

well as the nature of her defense, we conclude that admission of

Officer Davis’s testimony regarding the blood draw procedure and

the HGN test, when measured against all of the evidence, did not

substantially influence the verdict or affect the fairness of the trial

proceedings. See Campbell, ¶¶ 35-41. Accordingly, we find no

grounds for reversal.

III. Conclusion

¶ 85 The judgment is affirmed.

JUDGE RICHMAN and JUDGE FREYRE concur.