Cain v. People

• Decision Date: 02 July 2014
• Docket Number: Supreme Court Case No. 12SC299
• Citation: 327 P.3d 249
• Parties: Peter Gregory CAIN, Petitioner v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

327 P.3d 249

Peter Gregory CAIN, Petitioner

v.The PEOPLE of the State of Colorado, Respondent.

Supreme Court Case No. 12SC299

Supreme Court of Colorado.

Signed June 16, 2014

As Modified July 2, 2014

Certiorari to the Adams County District Court Adams County District Court Case No. 11CV1350

Douglas K. Wilson, Public Defender Ari Krichiver, Deputy Public Defender Brighton, Colorado, Attorneys for Petitioner.

Dave Young, District Attorney, Seventeenth Judicial District, Michael J. Milne, Senior Deputy District Attorney, Brighton, Colorado, Attorneys for Respondent.

Nancy C. Johnson, Attorney–at–Law, Nancy C. Johnson, Lakewood, Colorado, The Law Firm of Abraham Hutt, PC, Abraham V. Hutt, Denver, Colorado, Attorney for Amicus Curiae The Colorado Criminal Defense Bar.

En Banc

JUSTICE BOATRIGHT delivered the Opinion of the Court.

¶ 1 In this appeal, we consider whether the results of a preliminary breath test (“PBT”) for blood alcohol content are admissible for impeachment purposes. While it is clear that when the defendant is charged with driving either while under the influence of alcohol (“DUI”) or while ability impaired by alcohol (“DWAI”), the results of the PBT may not be used as evidence of guilt at trial, § 42–4–1301(6)(i)(III), C.R.S. (2013), whether the results of the PBT may nevertheless be used for impeachment purposes is an issue of first impression for this Court.

¶ 2 In this case, the county court determined that although evidence that a PBT registered a positive result for the presence of alcohol is inadmissible to prove intoxication, that evidence could nevertheless be admitted for impeachment purposes if the defendant testified that he had not been drinking. The district court affirmed this decision. We determine that the ruling is erroneous. While a police officer is authorized to conduct a PBT as part of the officer's investigation, we hold that based on the plain language of section 42–4–1301(6)(i)(III), the PBT results may not be used in any court action except as specifically provided in the statute itself. Thus, because the statute does not allow for using PBT results as impeachment evidence, we reverse the order of the district court and remand the case to that court with instructions to return the case to the county court for proceedings consistent with this opinion.

I. Facts and Procedural History

¶ 3 Officer Morris stopped Petitioner, Peter Cain, for failing to use his turn signal and not fully stopping at a stop sign while driving his truck. When Officer Morris pulled Cain over, he detected an odor of alcohol and noticed that Cain's speech was slurred and his eyes were bloodshot and watery. Officer Morris also found an unopened case of beer in the bed of the truck. Cain told Officer Morris that he was coming from a liquor store and that he had not been drinking earlier in the evening. At this point, Officer Morris called Officer Verver to the scene to assist him.

¶ 4 Cain declined to perform a voluntary roadside sobriety test but did submit to a PBT at Officer Verver's request. The PBT returned a positive result of 0.075 g/210L, thereby indicating the presence of alcohol. Based on the positive PBT result and his other observations, Officer Morris determined that he had probable cause to believe that Cain was operating his motor vehicle while intoxicated. As such, Officer Morris arrested Cain for DUI. After his arrest, Cain refused to take a breath or blood test to determine his blood alcohol content.

¶ 5 The People subsequently charged Cain with DUI, failure to signal, and failure to stop at a stop sign. Cain pled not guilty. Cain intended to testify at trial that he had not been drinking and that Officer Morris smelled alcohol because the first case of beer that he had picked up at the liquor store was leaking and spilled on his shirt. Cain also planned to testify so that the jury would see that his eyes are usually watery and would hear that his speech is slurred due to a hearing impediment.¹

¶ 6 After the cross-examination of Officer Verver and prior to re-direct, the trial court took its noon recess. At this point, outside of the presence of the jury, the prosecutor informed the court that he wanted to present evidence that Officer Verver gave Cain a PBT that registered a positive result for the presence of alcohol. The prosecutor explained that he intended to use the evidence to rebut defense counsel's assertion in her opening statement that Cain smelled of alcohol because he spilled beer on himself. ² After hearing arguments from both sides about the admissibility of the evidence, the county court ruled that the fact that the PBT returned a positive result was inadmissible unless Cain took the stand and testified that he had not been drinking. In that instance, the trial court reasoned that the defense would have opened the door to the prosecutor using the positive PBT result to impeach Cain's testimony.

¶ 7 Ultimately, following a Curtis advisement, Cain elected not to testify. SeePeople v. Curtis, 681 P.2d 504, 514 (Colo.1984). Defense counsel explained on the record that she advised Cain against testifying in light of the county court's decision that if Cain testified that he had not been drinking, that would open the door for the People to introduce the positive PBT result as impeachment evidence.

¶ 8 The jury found Cain guilty of DWAI and two traffic offenses. Cain appealed to the district court, where he argued that the county court erred when it concluded that the positive PBT result could be used as impeachment evidence if he testified. Cain asserted that this ruling was contrary to Colorado law and also had a chilling effect on his right to testify, as guaranteed by both the United States and Colorado Constitutions. The district court affirmed the county court's decision. It concluded that PBT results are admissible for impeachment purposes.

¶ 9 Cain petitioned this Court for certiorari review, which we granted. ³

II. Standard of Review

¶ 10 The interpretation of a statute raises a question of law that we review de novo. Hendricks v. People, 10 P.3d 1231, 1235 (Colo.2000). When interpreting a statute, our goal is to give effect to the intent of the General Assembly. People v. Laeke, 2012 CO 13, ¶ 11, 271 P.3d 1111. To determine the legislative intent, we look to the statutory language itself and give the words and phrases their ordinary and commonly accepted meaning. Id.; Kerns v. Kerns, 53 P.3d 1157, 1160 (Colo.2002). Where the language is clear, it is not necessary to resort to other tools of statutory construction. McKinney v. Kautzky, 801 P.2d 508, 509 (Colo.1990). In this case, because the language of section 42–4–1301(6)(i)(III) is clear, we look no further than the plain words of the statute. See Laeke, ¶ 11.

III. Analysis

¶ 11 The People concede that PBT results are generally inadmissible; however, they argue that the results are nevertheless admissible for impeachment purposes where one party opens the door to the evidence. We disagree. To reach this decision, we first review the language of the statute. Then, we consider the People's argument that there is an exception to the statutory bar on the use of the PBT results as evidence at trial if the results are introduced for impeachment purposes, and we find the argument unconvincing. Finally, we evaluate the effect of the county court's decision on Cain's right to testify at trial and determine that a new trial is warranted.

A. Section 42–4–1301(6)(i)(III)

¶ 12 Section 42–4–1301 permits police officers to conduct preliminary tests using approved devices when investigating a person suspected of DUI or DWAI. See§ 42–4–1301(6)(i)(I) to (II). Section 42–4–1301(6)(i)(III), however, limits the use of the test results in court proceedings. Specifically, the statute precludes a court from admitting into evidence the results of a PBT except when the evidence is used in a probable cause hearing outside of the presence of the jury:

Neither the results of such preliminary screening test nor the fact that the person refused such test shall be used in any court action except in a hearing outside of the presence of a jury, when such hearing is held to determine if a law enforcement officer had probable cause to believe that the driver committed a violation of this section.

Id. “Result,” although not defined in the statute, means “something that [arises] as a consequence, effect, issue, or conclusion.” Webster's Third New International Dictionary 1937 (2002). Therefore, in this context, we read “result” to mean anything that the PBT registers. In other words, we understand the term to encompass: a specific blood alcohol content number; an indication of the presence of alcohol generally; or an indication of the absence of alcohol, e.g., a zero value. Thus, in this case, the People sought to use a PBT result at trial when they attempted to admit into evidence the fact that the PBT indicated the presence of alcohol.

¶ 13 Therefore, the question presently before us is when, if ever, such a result is admissible at trial. We conclude, based on the plain language of the statute, that evidence of a PBT result is only admissible when there is a hearing, held outside of the presence of the jury, “to determine if a law enforcement officer had probable cause to believe that the driver committed [an alcohol related traffic offense].” § 42–4–1301(6)(i)(III). “Under the rule of interpretation expressio unius exclusio alterius, the inclusion of certain items implies the exclusion of others.” Beeghly v. Mack, 20 P.3d 610, 613 (Colo.2001). Hence, we read the General Assembly's inclusion of a single, specific, narrow exception to mean that the General Assembly intended that there be no other exceptions to the rule that PBT evidence is inadmissible.

B. There Is No Impeachment Exception

¶ 14 Despite the clear language of the statute, the People argue that PBT results should nevertheless be admissible for impeachment purposes to protect...