People v. Ambrose

• Decision Date: 06 May 2021
• Docket Number: Court of Appeals No. 18CA1557
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William Edward AMBROSE, Defendant-Appellant.
• Court: Colorado Court of Appeals

506 P.3d 57

2021 COA 62

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.William Edward AMBROSE, Defendant-Appellant.

Court of Appeals No. 18CA1557

Colorado Court of Appeals, Division IV.

Announced May 6, 2021

Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Meredith E. O'Harris, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

Opinion by JUDGE FREYRE

¶ 1 In this impaired driving case, we are asked to decide a novel issue related to the Intoxilyzer 9000 machine (I-9000). Each time the I-9000 is used to measure a person's breath alcohol content (BAC), it generates a BAC result and a separate document that certifies the machine is working properly and is certified for use during a specific range of dates. The question presented here is whether that "working order" certificate is testimonial and implicates a defendant's confrontation rights under the Sixth Amendment to the United States Constitution. We conclude, consistent with every state to have considered this issue, that this certificate is not testimonial and, thus, does not implicate the Confrontation Clause.

¶ 2 Defendant, William Edward Ambrose, appeals the judgment entered after a jury convicted him of felony driving while ability impaired (DWAI). He contends that the trial court reversibly erred by (1) finding the arresting officer had reasonable suspicion; (2) failing to remove a biased juror for cause; (3) refusing to submit the issue of prior alcohol convictions to the jury to determine beyond a reasonable doubt; (4) failing to grant an evidentiary hearing on the admissibility of the I-9000 breath test results; (5) allowing a deputy's expert testimony disguised as lay testimony concerning the I-9000's operations; (6) admitting the I-9000 certificate document contrary to the relevant statute's requirements and in violation of his confrontation rights; and (7) imposing the persistent drunk driver surcharge after sentencing in violation of his right to be free from double jeopardy.

¶ 3 The supreme court vacated our opinion and remanded the case for reconsideration in light of its decision in Linnebur v. People , 2020 CO 79M, 476 P.3d 734. Ambrose v. People , (Colo. No. 20SC698, 2021) WL 1392194 (unpublished order). In Linnebur , the supreme court held that the requirement of three or more prior qualifying offenses is an element of felony DWAI that must be found by a jury beyond a reasonable doubt. Linnebur , ¶¶ 2, 31. Consistent with that decision, we reverse Mr. Ambrose's felony DWAI conviction and remand the case for either a new trial or resentencing on the misdemeanor, at the prosecution's discretion. Because we reverse the judgment, we need not resolve Mr. Ambrose's persistent drunk driving surcharge claim and do not address it further. See People v. Curtis , 2014 COA 100, ¶ 12, 350 P.3d 949 (applying the principle of judicial restraint: "[I]f it is not necessary to decide more, it is necessary not to decide more") (citation omitted).

¶ 4 While we recognize that many of Mr. Ambrose's remaining contentions may not arise if the case is retried, we elect to address these contentions because they may bear on whether the misdemeanor conviction can stand if the prosecution chooses not to seek a retrial of the felony. See People v. Marston , 2021 COA 14, ¶ 2, 491 P.3d 412.

I. Factual Background

¶ 5 While on patrol and stopped in a highway pullout, Deputy Corey Dilka saw a car pass him with a dimly lit left taillight. He followed the car and as he got closer, he no longer saw any light coming from the left taillight. Instead, he saw a steady white light. Believing a traffic infraction had occurred, Deputy Dilka activated his emergency lights, pulled the vehicle over, and contacted Mr. Ambrose, who was driving.

¶ 6 While speaking with Mr. Ambrose, Deputy Dilka detected "an odor of an unknown alcoholic beverage" coming from the vehicle and saw that Mr. Ambrose's eyes were glassy. After learning from dispatch that Mr. Ambrose had active restraints on his driver's license in other states, Deputy Dilka asked Mr. Ambrose to step out of the car. Deputy Dilka again detected an odor of an alcoholic beverage, this time coming from Mr. Ambrose.

¶ 7 Mr. Ambrose subsequently consented to performing voluntary roadside maneuvers. After observing several clues of impairment, Deputy Dilka placed Mr. Ambrose under arrest on suspicion of driving under the influence. Mr. Ambrose agreed to a breath test, which revealed a BAC of 0.063.

¶ 8 As relevant here, prosecutors charged Mr. Ambrose with a count of felony DWAI (felony fourth offense) and driving without a valid license.¹ The jury convicted him of DWAI and acquitted him of driving without a valid license. In a bench trial, the trial court found that the prosecution had established the existence of three prior convictions for alcohol-related offenses, thereby elevating Mr. Ambrose's DWAI conviction from a misdemeanor to a class 4 felony. The trial court sentenced Mr. Ambrose to three years in community corrections, but it said nothing about the persistent drunk driver surcharge at the hearing. The mittimus, however, reflected this surcharge.

II. Reasonable Suspicion

¶ 9 Mr. Ambrose first contends the trial court erroneously found that Deputy Dilka had reasonable suspicion to initiate a traffic stop. He moved to suppress evidence of impairment obtained as a result of the stop, but the trial court denied his motion. Considering the totality of the circumstances, we discern no error.

A. Standard of Review and Relevant Law

¶ 10 A trial court's ruling on a motion to suppress presents a mixed question of fact and law. People v. Montante , 2015 COA 40, ¶ 59, 351 P.3d 530. We defer to the court's findings of fact if they are supported by the record, and we review de novo the court's legal conclusions. Id.

¶ 11 The Fourth Amendment to the United States Constitution protects against unreasonable searches and seizures. "A warrantless search and seizure is unreasonable unless it is justified by one of the few, specifically established exceptions to the Warrant Clause of the Fourth Amendment." People v. Revoal , 2012 CO 8, ¶ 10, 269 P.3d 1238.

¶ 12 An investigatory stop is permitted if the officer has "a reasonable suspicion that criminal activity has occurred, is taking place, or is about to take place." Id. (citation omitted). "Reasonable suspicion is both a qualitatively and quantitatively lower standard than probable cause. That is, it can be supported both by less information and by less reliable information than is necessary to establish probable cause." People v. King , 16 P.3d 807, 813 (Colo. 2001).

¶ 13 To determine whether an investigatory stop is valid, a court must consider the facts and circumstances known to the police officer at the time of the stop. Revoal , ¶ 11. To justify an investigatory stop, an officer "must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion." Terry v. Ohio , 392 U.S. 1, 21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). An "unarticulated hunch" is not sufficient. Revoal , ¶ 11 (citation omitted). This inquiry focuses on an "objective analysis of whether a reasonable, articulable suspicion exists and not on the subjective intent of the officer." People v. Reyes-Valenzuela , 2017 CO 31, ¶ 12, 392 P.3d 520.

B. Analysis

¶ 14 Here, Deputy Dilka had reasonable suspicion to stop Mr. Ambrose for a suspected motor vehicle equipment violation. Section 42-4-215(6), C.R.S. 2020, provides that "[a]ny motor vehicle may be equipped with not more than two back-up lamps either separately or in combination with other lamps, but no such backup lamp shall be lighted when the motor vehicle is in forward motion." Deputy Dilka testified that once he got behind Mr. Ambrose's car, he saw that the left taillight emitted a steady white light instead of a red light. The officer's observation of a white light coming from the area where the backup light was located was enough to justify the stop. See People v. Chavez-Barragan , 2016 CO 16, ¶ 10, 365 P.3d 981 ("Suspicion of even a minor traffic offense can provide the basis for a stop.").

¶ 15 We are not persuaded by Mr. Ambrose's argument that the stop was unreasonable because Deputy Dilka testified that he stopped Mr. Ambrose for a different equipment violation under section 42-4-206(1), C.R.S. 2020. That statute says that "every vehicle registered in this state and manufactured or assembled after January 1, 1958, must be equipped with at least two tail lamps mounted on the rear." § 42-4-206(1). Mr. Ambrose argues that because his vehicle displayed Wisconsin plates and presumably was not registered in Colorado, Deputy Dilka did not have a reasonable articulable suspicion to initiate a traffic stop. We disagree.

¶ 16 As our supreme court has reiterated, the reasonable suspicion standard is an objective one, and is not one that focuses on the officer's subjective intent. See Reyes-Valenzuela , ¶ 12. Deputy Dilka's observation of a continually illuminated white light supports an objective belief that Mr. Ambrose's car may have had a back-up light that was lit even though the vehicle was moving forward, contrary to section 42-4-215(6) ("[N]o such back-up lamp shall be lighted when the motor vehicle is in forward motion."). Indeed, a police officer does not have to observe a traffic violation to initiate a stop; the officer can also initiate a stop if the officer has a "reasonable articulable suspicion that a traffic or equipment violation has occurred or is occurring." People v. Johnston , 2018 COA 167, ¶ 20, 440 P.3d 1223 (quoting United States v. Botero-Ospina , 71 F.3d 783, 787 (10th Cir. 1995) ). The existence of out-of-state plates does not alter the analysis because section 42-4-215(6) does not require the vehicle to be registered in...