v. Fuerst

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
January 10, 2019
2019COA2
No. 17CA0772, People v. Fuerst — Regulation of Vehicles and
Traffic — Alcohol and Drug Offenses — Expressed Consent for
the Taking of Blood, Breath, Urine, or Saliva
In this criminal case, a division of the court of appeals is
asked to decide whether a police officer is authorized to request that
a suspect take a drug test under section 42-4-1301.1(2)(b)(I), C.R.S.
2018, of the Expressed Consent Statute if the officer has already
requested, and the suspect has completed, an alcohol test under
subsection 1301.1(2)(a)(I). The division answers this question
affirmatively.
COLORADO COURT OF APPEALS 2019COA2
Court of Appeals No. 17CA0772
Mesa County District Court No. 16CR706
Honorable Brian J. Flynn, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Kim Maurice Fuerst,
Defendant-Appellant.
JUDGMENT AFFIRMED
Division IV
Opinion by JUDGE HAWTHORNE
Tow and Márquez*, JJ., concur
Announced January 10, 2019
Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Emilyn Winkelmeyer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1 Defendant, Kim Maurice Fuerst, appeals his conviction for
driving while ability impaired (DWAI). We affirm.
I. Background
¶2 Defendant backed his car into a pickup truck. When a police
officer arrived on the scene, a bystander told the officer that, after
the accident, defendant had asked her if she wanted his beer
because he needed to hide it.
¶3 Defendant agreed to perform several roadside sobriety tests.
The horizontal gaze nystagmus test indicated that he was under the
influence of a central nervous system depressant (CNS depressant).
Alcohol is a CNS depressant. Defendant also performed poorly on
the walk-and-turn and one-leg stand tests and had difficulty
following the officer’s instructions. Based on defendant’s
performance on these tests and his previous statement to the
bystander about the beer, the officer believed defendant was under
the influence of alcohol.
¶4 The officer arrested defendant and gave him the option of
taking either a breath or blood test under section
42-4-1301.1(2)(a)(I), C.R.S. 2018, a provision in Colorado’s
Expressed Consent Statute. Defendant chose a breath test. The
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breath test results showed that defendant’s blood alcohol content
was zero.
¶5 The officer then concluded that “it had to be drugs” and asked
defendant to take a blood test under section 42-4-1301.1(2)(b)(I).
Defendant initially refused and asked to speak to the officer’s
supervisor. The supervising officer told defendant that if he didn’t
take the blood test, his driver’s license would be revoked.
Defendant then agreed to take the blood test.
¶6 The blood test revealed 101 nanograms of Alprazolam (Xanax)
per milliliter, which is near the upper limit of the therapeutic range
for that drug (25 to 102 nanograms per milliliter). Alprazolam is
also a CNS depressant.
¶7 Before trial, defendant moved to suppress the blood test
results. After hearing evidence and argument, the trial court denied
the motion.
¶8 At trial, the jury found defendant not guilty of driving under
the influence (DUI) but found him guilty of DWAI and unsafe
backing.
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II. The Trial Court Didn’t Err in Denying the Motion to Suppress the
Blood Test Results
¶9 Defendant contends that the trial court erred in denying his
motion because the officer’s requiring him to complete the blood
test — after he had already selected and completed the breath
test — wasn’t authorized by the Expressed Consent Statute and
violated his constitutional rights. We disagree.
A. Defendant Preserved His Argument
¶ 10 In defendant’s written motion to suppress, he argued only that
the officer didn’t have probable cause to request that he take the
blood test. But, at the evidentiary hearing on the motion, during
closing argument, the trial court specifically asked the prosecutor,
“[T]ell me your position on the law if someone agrees to take a
breath test and then can law enforcement ask them for a second
test . . . ?” The prosecutor answered that he wasn’t aware of
anything in the law that would prohibit the second test. Then,
during his closing, defendant argued, among other things, that the
officer couldn’t invoke the Expressed Consent Statute a second time
after he had already selected and completed the breath test.
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¶ 11 Under these circumstances, we conclude that defendant
preserved his contention for appeal.
B. Standard of Review
¶ 12 Review of a trial court’s suppression order presents a mixed
factual and legal question. People v. Hyde, 2017 CO 24, ¶ 9. We
defer to the trial court’s factual findings that have record support,
but we assess those facts’ legal effect de novo. Id. And we also
review de novo the court’s interpretation of the Expressed Consent
Statute. See Fitzgerald v. People, 2017 CO 26, ¶ 8.
C. Analysis
¶ 13 Defendant argues that the Expressed Consent Statute doesn’t
authorize an officer to request a drug test under subsection
1301.1(2)(b)(I) if the officer has already requested, and the suspect
has completed, an alcohol test under subsection 1301.1(2)(a)(I). We
disagree.
¶ 14 Subsection 1301.1(2)(a)(I) authorizes a breath or blood test if
an officer has probable cause to believe a driver is under the
influence of alcohol. Subsection 1301.1(2)(b)(I) authorizes a blood,
saliva, or urine sample if an officer has probable cause to believe a
driver is under the influence of drugs and requiring the test is
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reasonable. The statute doesn’t say an officer can only do one or
the other. In fact, nothing in the statutory language ties together
subsections 1301.1(2)(a)(I) and (2)(b)(I), other than that the two
provisions are in the same statute. And we disagree with
defendant’s argument that because there’s no express statutory
provision allowing an officer to do both, an officer can’t do both. We
conclude that if the General Assembly had intended to prohibit
what the officer did in this case, it would have included language in
the Expressed Consent Statute specifying that an officer can
proceed under subsection 1301.1(2)(a)(I) or (2)(b)(I), but not both. To
adopt defendant’s interpretation would require us to add words to
the statute, and “[w]e do not add words to the statute or subtract
words from it.” People v. Diaz, 2015 CO 28, ¶ 12 (quoting Turbyne
v. People, 151 P.3d 563, 567 (Colo. 2007)).
¶ 15 This case’s facts are strikingly similar to those in Halter v.
Department of Revenue, 857 P.2d 535 (Colo. App. 1993). There, the
officer had probable cause to believe the plaintiff was impaired by
alcohol because of, among other things, his poor performance on
roadside sobriety tests. Id. at 536, 538. The officer gave the
plaintiff the option of performing a breath or blood test under
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subsection 1301.1(2)(a)(I), and the plaintiff chose a breath test. Id.
at 536. The breath test was negative for the presence of alcohol.
Id. The arresting officer ultimately testified that “because the
alcohol came back zero” and he still felt that the plaintiff “was
impaired,” he thought at that point that the plaintiff “was under
drugs” because “that could be the only other answer.” Id. Another
officer then requested that the plaintiff provide a urine sample to
test for drugs. Id. Over the next several hours, the plaintiff didn’t
provide a urine sample and his driver’s license was revoked. Id. at
536-37.
¶ 16 Although the plaintiff in Halter didn’t make the same statutory
argument that defendant does in this case, the Halter division
analyzed the Expressed Consent Statute and concluded that if an
officer has probable cause to believe that a driver is under the
influence of alcohol or drugs, the officer may request, and the driver
is obligated to complete, “either the applicable alcohol tests or the
applicable drug tests or both.” Id. at 538 (emphasis added).
Notably, in this case, the People relied on Halter in their answer
brief but defendant didn’t address the case in his reply brief.
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¶ 17 Instead, defendant argues that under Turbyne, 151 P.3d 563,
and section 42-4-1301.1(2)(a.5)(I), the officer couldn’t “change” the
type of test that defendant had originally requested. We conclude
that Turbyne and section 42-4-1301.1(2)(a.5)(I) don’t apply here.
¶ 18 In Turbyne, the officer requested that the defendant submit to
a breath or blood test under subsection 1301.1(2)(a)(I), and the
defendant chose a blood test. Turbyne, 151 P.3d at 565. But,
because the officer faced difficulty in getting the blood test
completed, he required the defendant to submit to a breath test. Id.
at 565-66. Under the version of the Expressed Consent Statute in
effect at that time, the supreme court held that the officer couldn’t
change the type of test that defendant had selected under
subsection 1301.1(2)(a)(I). See id. at 567-72. Soon after the
Turbyne decision, the General Assembly amended the Expressed
Consent Statute by adding section 42-4-1301.1(2)(a.5)(I), providing
that an officer isn’t bound by the driver’s choice between a breath
or blood test under subsection 1301.1(2)(a)(I) if “extraordinary
circumstances” prevent completing the selected test. See People v.
Null, 233 P.3d 670, 678 (Colo. 2010) (discussing the statutory
amendment).
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¶ 19 Unlike in Turbyne, where the defendant wasn’t allowed to take
the type of test he had selected under subsection 1301.1(2)(a)(I),
defendant chose a breath test and the officer complied by giving
him that test. After completing that procedure, the officer had
probable cause to believe defendant was under the influence of
drugs, and subsection 1301.1(2)(b)(I) authorized the officer to
request a blood test.
¶ 20 Defendant doesn’t present any independent argument that
conducting the blood test violated his constitutional rights.
Instead, he argues, “[T]he issue here is whether that procedure
[employed by the officer] was lawful under the statute. Because it
was not, the blood draw was unconstitutional and the results
should have been suppressed.” We conclude that the procedure
employed by the officer didn’t violate the Expressed Consent
Statute. Because defendant’s statutory claim fails, his
constitutional claim necessarily fails.
III. The Trial Court Properly Admitted the Blood Test Results at Trial
¶ 21 Defendant also contends that the trial court violated his
confrontation rights and section 16-3-309(5), C.R.S. 2018, by
admitting a laboratory report containing his blood test results. He
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argues that the witness who testified about the laboratory report
and the blood test results wasn’t sufficiently involved in the process
of testing the blood sample and certifying the results. Again, we
disagree.
A. Further Background
¶ 22 The court admitted the laboratory report based on the
testimony of a forensic toxicologist for the Colorado Bureau of
Investigation (CBI toxicologist), who was qualified as an expert in
forensic science and forensic toxicology.
¶ 23 During initial questioning, the CBI toxicologist testified that he
believed he had done at least some of the original testing on
defendant’s blood sample, but he couldn’t confirm that. The
prosecutor then offered the laboratory report, but the trial court
concluded that the prosecutor hadn’t laid a sufficient foundation.
¶ 24 Through further questioning, the CBI toxicologist said that he
had created and signed the laboratory report, and explained the
process for doing so:
[W]hen I will begin to write a report, [the]
person whose name goes on the report will
take in all of the information. They will review
it themselves.
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They’ll go through each of the raw data.
They’ll make sure that all quality control
passes CBI’s acceptable criteria.
I will look at the raw data for the case,
itself. Make sure that that matches with
what’s in our electronic database.
I will go through this entire process, write
the report. And when I write the report, it will,
then, go through a technical review process,
where another forensic scientist will come
through and make sure everything I did on the
report is correct.
And then, after that technical review
process, it will go through an administrative
review process, where a CBI Supervisor or
Manager will go through and make sure
everything is grammatically correct, and that
what’s on the Request for Laboratory
Examination was actually done for the case.
The prosecutor followed up by asking, “Does that mean that you
performed the screening, or that you reviewed the screening, in its
entirety, for accuracy? Or, or could it be both?” The CBI
toxicologist responded, “It actually could be both.”
¶ 25 Following argument, the trial court concluded that the
prosecutor had laid a sufficient foundation, admitted the laboratory
report into evidence, and allowed the CBI toxicologist to testify
about the blood test results.
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B. Standard of Review
¶ 26 We review defendant’s claims de novo. See Nicholls v. People,
2017 CO 71, ¶ 17 (“Confrontation claims are reviewed de novo.”);
People v. Hill, 228 P.3d 171, 173 (Colo. App. 2009) (reviewing de
novo whether evidence was admissible under section 16-3-309(5)).
C. Analysis
1. Right to Confrontation
¶ 27 The parties disagree about whether the circumstances in this
case are more like those in Bullcoming v. New Mexico, 564 U.S. 647
(2011), or those in Marshall v. People, 2013 CO 51. We agree with
the People that the CBI toxicologist’s role in completing and signing
the laboratory report is much more similar to the circumstances in
Marshall than those in Bullcoming.
¶ 28 In Bullcoming, the Supreme Court held that a witness
shouldn’t have been allowed to testify about the results in a
laboratory report because the witness hadn’t signed the report
certification and hadn’t performed or observed the forensic testing
on the blood sample. 564 U.S. at 651-63. Instead, the analyst was
familiar only with the laboratory’s testing procedures generally. Id.
at 651. The Court described the analyst’s testimony as “surrogate
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testimony,” and held that the defendant had the right to confront
the analyst who had actually completed and signed the report
certification. Id. at 652.
¶ 29 In Marshall, the Colorado Supreme Court held that a witness
was properly allowed to testify about the results in a laboratory
report. 2013 CO 51, ¶ 1. The witness, a supervisor at the
laboratory, hadn’t done any of the original testing on the urine
sample. Still, the court held that the supervisor was qualified to
testify about the results in the report because she had
(1) supervised the testing process; (2) reviewed all the data
generated by the test; (3) found that the data accurately determined
that the defendant had methamphetamine present in her urine; and
(4) certified the test results. Id. at ¶ 2. The court explained that
those circumstances didn’t present the type of “‘surrogate’
testimony” found to be problematic in Bullcoming. Id.; see also
People v. Medrano-Bustamante, 2013 COA 139, ¶¶ 19-25 (a case
similar to Marshall in which a division of this court held that the
admission of a laboratory report didn’t violate the defendant’s right
to confrontation), rev’d in part on other grounds sub nom.
Reyna-Abarca v. People, 2017 CO 15.
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¶ 30 Although the prosecutor could have elicited more specific
details about each step of the CBI toxicologist’s review process, the
CBI toxicologist specified that he personally reviewed all the
information — including the raw data generated by the testing on
the blood sample — and proceeded through the CBI’s quality
control process, which included several levels of review. He then
certified the results of that process by signing the laboratory report.
As in Marshall, these circumstances didn’t present the type of
“surrogate testimony” found to be problematic in Bullcoming.
¶ 31 Defendant emphasizes that the CBI toxicologist couldn’t
confirm at trial that he had performed the original testing on
defendant’s blood sample. But, in Marshall, even though the
supervisor hadn’t completed the original testing on the urine
sample, she was still qualified to testify about the results certified in
the report.
¶ 32 We are also not persuaded by defendant’s argument that the
CBI toxicologist’s testimony was phrased in terms of the process he
generally employed in completing and signing laboratory reports
like the one at issue. We deem it sufficient that he specified that by
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signing the laboratory report, he employed the standard,
regimented process in completing the laboratory report.
¶ 33 We also find it immaterial that the CBI toxicologist didn’t hold
a formal supervisory position at the CBI’s laboratory. The
important information is that he led the process of reviewing the
test results, employed the CBI’s quality control process, and
certified the results by signing the laboratory report.
2. Section 16-3-309(5)
¶ 34 Section 16-3-309(5) requires that a criminalistics laboratory
report be admitted through the testimony of the employee or
technician “who accomplished” the analysis in the report.
¶ 35 In Marshall, the supreme court held that the supervisor’s
process of reviewing the testing and completing and certifying the
laboratory report fell within the meaning of “accomplish[ing]” the
analysis under section 16-3-309(5). See Marshall, ¶¶ 20-23. The
court again emphasized that the supervisor didn’t need to have
conducted the original testing. Id. at ¶ 22; see also
Medrano-Bustamante, ¶¶ 26-28 (holding, in a case similar to
Marshall, that the admission of a laboratory report didn’t violate
section 16-3-309(5)).
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¶ 36 Again, Marshall isn’t meaningfully distinguishable. The CBI
toxicologist led the process of reviewing the test results, employed
the CBI’s quality control process, and certified the results by
signing the laboratory report. That fell within the meaning of
“accomplishing” the report under section 16-3-309(5).
IV. Conclusion
¶ 37 The judgment is affirmed.
JUDGE TOW and JUDGE MÁRQUEZ concur.
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