v. Jiron ( 2020 )

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
40845, 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.
42