People v. Acosta
| Decision Date | 22 April 1993 |
| Docket Number | No. 92CA0151,92CA0151 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Mary ACOSTA, Defendant-Appellant. . III |
| Court | Colorado Court of Appeals |
Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Katherine M. Clark, Asst. Atty. Gen., Denver, for plaintiff-appellee.
David F. Vela, State Public Defender, Joan E. Mounteer, Deputy State Public Defender, Denver, for defendant-appellant.
Opinion by Judge CRISWELL.
Defendant, Mary Acosta, was convicted of vehicular assault while under the influence of alcohol, vehicular assault by driving recklessly, and driving under the influence of alcohol. She was placed on probation for five years. She appeals from the judgments of conviction and from the court's order of restitution. We affirm the judgments of conviction, but remand the cause for the court to reconsider its order of restitution.
The vehicular accident out of which the charges against defendant arose occurred in the evening hours as defendant was driving from Manitou Springs to Canon City. As traffic in the opposite lane approached defendant, her vehicle slid into that lane, striking the vehicle that the victim was driving.
Defendant admitted having at least one and one-half glasses of wine at dinner shortly before she left Manitou Springs. In addition, the People introduced the testimony of witnesses who observed defendant's driving before the accident, testimony as to her condition and reaction after the accident, and the results of a breathalyzer test that purported to establish that defendant had 0.139 grams of alcohol per 210 liters of breath shortly after the accident.
In contrast, defendant testified that she was not under the influence at the time of the accident. She testified that, as traffic from the opposite direction approached, she drove her vehicle to the far right edge of the roadway where her tire encountered some gravel. According to her, she turned her front wheels to the left, but overcorrected, and as a result, her vehicle went into a slide into the opposite lane, where the two vehicles collided.
In convicting defendant of the three offenses described above, the jury acquitted her of a fourth charge, driving with an excessive blood or breath alcohol content.
Defendant first argues that the prosecution denied her right to procedural due process of law by its failure to preserve a second sample of her breath at the time the breathalyzer test was administered to her and its failure to keep in storage the victim's automobile. In both instances, we disagree.
In People v. Greathouse, 742 P.2d 334 (Colo.1987), our supreme court held that a due process violation based upon a failure to preserve evidence can be established only by demonstrating, among other things, that the lost evidence was "material." And, evidence will be considered to be material only if it possessed an exculpatory value that was apparent before it was lost and if its nature was such that the defendant would be unable to obtain comparable evidence by other reasonably available means.
After the Greathouse decision, however, the United States Supreme Court held that, in those instances in which there is a failure to preserve "evidentiary materials of which no more can be said than it could have been subjected to tests, the results of which might have exonerated the defendant," no due process violation occurs unless the failure to preserve the evidence results from the bad faith of the authorities. Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333, 337, 102 L.Ed.2d 281, 289 (1988) (emphasis supplied). Hence, "unless a criminal defendant can show bad faith on the part of police, failure to preserve potentially useful evidence does not constitute a denial of due process of law." Arizona v. Youngblood, 488 U.S. at 58, 109 S.Ct. at 337, 102 L.Ed.2d at 289. See also People v. Franklin, 782 P.2d 1202 (Colo.App.1989).
The record here demonstrates that the failure to obtain a second breath sample resulted from the testing officer's good faith failure to find the necessary supplies for a second sample and that the return of the victim's vehicle to her insurer came only after reasonable notice to defendant of such intended action. Defendant took no steps either to cause the vehicle to be inspected or to bring on for hearing her motion to restrain the People from delivering the vehicle. In addition, this record fails to disclose that any further testing either of a second breath sample or of the victim's vehicle would have produced exonerating evidence for defendant; at the very best, it can only be said that it "might" have.
Under these circumstances, we conclude that this evidence does not meet the Greathouse requirement for materiality and that this record cannot support a Youngblood conclusion of bad faith. Hence, no due process denial resulted in either instance. See People v. Humes, 762 P.2d 665 (Colo.1988) (). See also People v. Franklin, supra.
Defendant next argues that the evidence was legally insufficient to establish her guilt of the three offenses of which she was convicted and that the jury verdict convicting her of driving under the influence and vehicular assault while driving under the influence are inconsistent with defendant's acquittal of driving with an excessive blood or breath alcohol content. We reject both arguments.
Defendant was charged with four counts: vehicular assault while under the influence in violation of § 18-3-205(1)(b)(I), C.R.S. (1992 Cum.Supp.); vehicular assault by driving recklessly in violation of § 18-3-205(1)(a), C.R.S. (1986 Repl.Vol. 8B); driving under the influence in violation of § 42-4-1202(1)(a), C.R.S. (1992 Cum.Supp.); and driving with an excessive blood or breath alcohol content in violation of § 42-4-1202(1.5)(a), C.R.S. (1992 Cum.Supp.).
In order to convict defendant either of the crime of vehicular assault while under the influence or of driving under the influence in violation of § 42-4-1202(1)(a), it was necessary for the People to prove, among other things, that she operated a vehicle at a time when alcohol had so affected her mental or physical abilities that she was substantially incapable of "exercising clear judgment, sufficient physical control, or due care in the safe operation of a vehicle." See § 18-3-205(1)(b)(IV), C.R.S. (1992 Cum.Supp.) and § 42-4-1202(1)(f), C.R.S. (1992 Cum.Supp.).
In contrast, the crime prohibited by § 42-4-1202(1.5)(a) requires no such proof. Rather, such offense occurs if a person drives a vehicle and, at the time of such driving or within two hours thereafter, an analysis of the driver's blood or breath discloses the specified level of alcohol within the person's system. While extrinsic evidence of the person's actions may be considered to determine whether the blood or breath test resulted in an accurate analysis, § 42-4-1202(1.5)(b), C.R.S. (1992 Cum.Supp.), there is no requirement to prove that the level of alcohol had any effect upon the driver's mental or physical abilities.
Here, the People's evidence to support the three alcohol-based offenses took two forms. First, it introduced the results of defendant's breath analysis which indicated a level of 0.139 grams of alcohol per 210 liters of breath. In addition, it presented the testimony of both lay witnesses and law enforcement agents who testified that defendant was driving erratically before the collision and that she exhibited some symptoms of being under the influence after the collision.
Giving the People the benefit of all reasonable inferences, see People v. Brassfield, 652 P.2d 588 (Colo.1982), we conclude that this evidence was sufficient to establish that, at the time of the collision, defendant's physical or mental capacities had been adversely affected by her previous consumption of alcohol.
Further, such a conclusion is not inconsistent with her acquittal of the other misdemeanor charge. The jury could well have rejected the reliability of the breath test to show beyond a reasonable doubt an excessive level of alcohol in defendant's breath. At the same time, given defendant's admission of her prior consumption of alcohol, the jurors could reasonably have concluded that defendant's mental and physical capacities had been so affected that she had been "under the influence," irrespective of the precise amount of alcohol that she had consumed.
Under such circumstances, the verdicts reveal no inconsistency. See People v. Lutz, 803 P.2d 184 (Colo.1990).
We also reject defendant's argument that the court gave an improper supplemental instruction on the definition of proximate cause.
In the court's initial instructions to the jurors, they were advised that, in order to find defendant guilty of the crime of vehicular assault while under the influence of alcohol, it would be necessary to find that defendant's driving under the influence was the "proximate cause" of serious bodily injury. For this purpose, the jurors were instructed that a "proximate cause" was:
A cause which in natural and probable sequence produced the claimed injury. It is a cause without which the claimed injury would not have been sustained.
After commencing deliberations, the jurors advised the court that they were confused over this definition. The court then questioned the jurors in open court and in the presence of counsel as to the cause of their confusion and was informed that they were uncertain whether a proximate cause had to be the "primary" cause or simply a "contributing" cause.
The court then gave an additional instruction in the following form:
'[P]roximate cause' means a cause but for which the injuries would not have occurred. The 'proximate cause' does not have to be the only cause or the last...
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