§ 16-3-309 — Admissibility of laboratory test results

(1) When evidence is
seized in so small a quantity or unstable condition that qualitative laboratory
testing will not leave a sufficient quantity of the evidence for independent analysis
by the defendant's expert and when a state agent, in the regular performance of his
duties, can reasonably foresee that the evidence might be favorable to the
defendant, the trial court shall not suppress the prosecution's evidence if the court
determines that the testing was performed in good faith and in accordance with
regular procedures designed to preserve the evidence which might have been
favorable to the defendant.

(2) The trial court shall consider the following factors in determining,
pursuant to subsection (1) of this section, whether the state has met its obligation to
preserve the evidence:

(a) Whether or not a suspect has been identified and apprehended and
whether or not the suspect has retained counsel or has had counsel appointed for
him at the time of testing;

(b) Whether the state should have used an available test method more likely
to preserve the results of seized evidence;

(c) Whether, when the test results are susceptible to subjective
interpretation, the state should have photographed or otherwise documented the
test results as evidence;

(d) Whether the state should have preserved the used test samples;

(e) Whether it was necessary for the state agency to conduct quantitative
analysis of the evidence;

(f) Whether there is a sufficient sample for the defendant's expert to utilize
for analysis and the suspect or defendant has made a specific request to preserve
such sample;

(g) If paragraph (f) of this subsection (2) cannot be complied with, in view of
the small amount of evidence, or when the state's duty to preserve the evidence
would otherwise be enhanced, whether it was reasonable for the state to have
contacted the defendant to determine if he wished his expert to be present during
the testing.

(3) With regard to testing performed on blood, urine, and breath samples
which form the basis for a conclusion upon which a statutory presumption arises, it
is hereby declared to be the public policy of the state of Colorado that when the
prosecution's evidence of test results is sought to be excluded from the trier of fact
in a criminal proceeding because the testing destroyed evidence which might have
been favorable to the defense, it shall be open to the proponent of the evidence to
urge that the testing in question was performed in good faith and in accordance
with regular procedures designed to preserve the evidence which might have been
favorable to the defense, and, in such instances, the evidence so discovered should
not be kept from the trier of fact if otherwise admissible.

(4) For all other types of blood analysis, breath analysis, and urine analysis
and for laboratory testing, such as serial number restoration, firearms testing, and
gunpowder pattern testing, it is hereby declared to be the public policy of the state
of Colorado that, when the prosecution's evidence of test results is sought to be
excluded from the trier of fact in a criminal proceeding because of the destruction
of evidence upon which the test was performed, it shall be open to the proponent of
the evidence to urge that the testing in question was performed in a reasonable,
good faith belief that it was proper and, in such instances, the evidence so
discovered should not be kept from the trier of fact if otherwise admissible.

(5) Any report or copy thereof or the findings of the criminalistics laboratory
shall be received in evidence in any court, preliminary hearing, or grand jury
proceeding in the same manner and with the same force and effect as if the
employee or technician of the criminalistics laboratory who accomplished the
requested analysis, comparison, or identification had testified in person. Any party
may request that such employee or technician testify in person at a criminal trial on
behalf of the state before a jury or to the court, by notifying the witness and other
party at least fourteen days before the date of such criminal trial.

(6) In no event shall evidence be suppressed which results from laboratory
testing performed before identification of a suspect for the sole reason that the
later identified suspect or his attorney was not present at the time of the testing.

(7) This section is necessary to identify the characteristics of evidence which
will be admissible in a court of law. This section does not address or attempt to
prescribe court procedure.

Legislative History

Source: L. 84: Entire section added, p. 483, � 1, effective July 1. L. 2012: (5) amended, (SB 12-175), ch. 208, p. 844, � 61, effective July 1.