Thomas v. People, s. 94SC204
| Decision Date | 08 May 1995 |
| Docket Number | Nos. 94SC204,94SC236,s. 94SC204 |
| Citation | 895 P.2d 1040 |
| Parties | Penny Powers THOMAS, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. Allyn David McMULLIN, Petitioner, v. The PEOPLE of the State of Colorado, Respondent. |
| Court | Colorado Supreme Court |
Harry J. Holmes, Longmont, Stuart S. Keown, Broomfield, for petitioners.
Stuart A. VanMeveren, Dist. Atty., Eighth Judicial Dist., Loren B. Schall, Asst. Dist. Atty., Fort Collins, for respondent.
Penny Powers Thomas (Thomas) appeals from an order of the Larimer County District Court in Thomas v. People, No. 94SC204, and Allyn David McMullin (McMullin) appeals from an order of the Larimer County District Court in McMullin v. People, No. 94SC236. In each case, the district court concluded that the county court erred in suppressing the breath test results and in dismissing the DUI charges.
We granted Thomas' and McMullin's petitions for writ of certiorari to review the district court orders in each respective case. We consolidated the cases for our review and affirm the district court's holding in both Thomas and McMullin. We hold that the results of a breathalyzer test administered in substantial compliance with the rules and regulations of the state board of health under section 42-4-1202(3)(b), 17 C.R.S. (1993), are admissible in the prosecution of a DUI case. Further, we conclude that any deficiency in the evidence with respect to the state board of health certifications should be considered as to the weight to be given the test results and not to their admissibility.
On May 8, 1992, Deputy William Eckrich of the Larimer County Police Department observed a car which failed to dim its headlights for on-coming traffic. Officer Eckrich stopped the car and spoke with Thomas, the driver. Officer Eckrich noted that Thomas' eyes were red and glassy, that she smelled of an alcoholic beverage, and that her speech was slurred. Officer Eckrich administered a roadside sobriety test, which Thomas failed to perform satisfactorily.
Thomas was thereafter placed under arrest and transported to the Larimer County Detention Center, where Officer Eckrich, a certified operator, administered a blood test to determine Thomas' blood alcohol content (BAC). The test results showed that Thomas had a BAC of approximately .208.
Thomas was subsequently charged with driving a motor vehicle with excessive alcohol content (DUI per se), in violation of section 42-4-1202(1.5)(a), 17 C.R.S. (1993); driving a motor vehicle under the influence of alcohol, in violation of section 42-4-1202(1)(a), 17 C.R.S. (1993); and failing to dim headlights, in violation of section 42-4-215, 17 C.R.S. (1993). Thomas entered a plea of not guilty to the charges and requested a jury trial.
Prior to the trial, Thomas moved to prevent the State from introducing the results of her breathalyzer test. Thomas maintained that the prosecution had not produced certificates of compliance from the Colorado Department of Health which would have demonstrated that at the time the test was administered to her neither the breath test machine nor the standard solution, which is used to verify the calculations of the machine, was working properly. Thomas asserted that the prosecution was required to introduce these certificates of compliance into evidence to establish a foundation for the admission of the test results, pursuant to section 42-4-1202.2, 17 C.R.S. (1993). 1 The prosecution contended that its copy of the certificate for the solution standard satisfied the requirements of section 42-4-1202.2.
The county court granted Thomas' motion. The county court ruled that the results of the breath test should be suppressed because the test was not administered in strict compliance with the statute and accordingly dismissed the charge of DUI per se.
At trial, Thomas was found not guilty of DUI and the lesser included offense of driving while ability impaired, and found guilty of failing to dim her headlights.
The prosecution appealed the county court's suppression ruling to the district court. The district court concluded that the county court erred in suppressing Thomas' breath test results and in dismissing the charges of DUI. The district court, relying on Siddall v. Colorado Department of Revenue, 843 P.2d 85 (Colo.App.1992), and section 42-4-1202(3)(b)(I), 17 C.R.S. (1993), ruled that there are no specific minimum foundational requirements for the admissibility of breath test results at criminal trials and that "[a]ny deficiency in the evidence showing whether the [breath test results] complied with the applicable regulatory standards goes to the weight to be given the blood test results and not to their admissibility." The district court remanded the case for trial on the DUI per se charge only.
Thomas now argues that both sections 42-4-1202(6) and 42-4-1202.2, 17 C.R.S. (1993), require the prosecution to lay a foundation that the breathalyzer was in working order and was operating properly prior to introducing the breath test results at trial. Thomas additionally maintains that the substantial compliance requirement set forth in section 42-4-1202(3)(b)(I) cannot be relied upon until the prosecution has established that the machine was operating properly.
McMullin was stopped in his car for speeding by Officer Corey Pass of the Estes Park Police Department. Officer Pass smelled an alcoholic beverage on the defendant's breath, and noted that McMullin's eyes were red and that he stumbled when he exited the car. Officer Pass arrested McMullin and took him into custody based on the officer's suspicion that he was driving under the influence of alcohol. Officer Pass, who was a trained and certified operator, gave McMullin a breath test, the results of which indicated a BAC of .183.
McMullin was thereafter charged with the offenses of driving a vehicle when the amount of alcohol in his blood was .010 grams of alcohol per two hundred ten liters of breath, in violation of section 42-4-1202(1.5)(a) (DUI per se); driving a vehicle under the influence of alcohol, in violation of section 42-4-1202(1)(a); and speeding, in violation of section 42-4-1001, 17 C.R.S. (1993).
Prior to trial, McMullin moved to suppress the results of his breath test. McMullin argued that the evidence should be suppressed because the prosecution had failed to introduce official records of the Colorado Department of Health, which were attested to by the executive director of the Department and bear its official seal, as mandated by section 42-4-1202.2. The prosecution asserted that it introduced copies of the certificates of compliance from the Estes Park Police Department concerning the breath testing instruments, and that such notarized copies were sufficient to satisfy the statutory requirements set forth in section 42-4-1202.2. 2
The county court granted McMullin's motion and dismissed the charge of DUI per se. At trial, McMullin was acquitted of the charge of DUI, but was found guilty of speeding.
The prosecution appealed the county court's ruling to the Larimer County District Court, arguing that there are no minimum requirements for the admission of breath test results, and that the county court should have taken judicial notice of the testing device and methods. The prosecution also argued that the certificates of compliance from the Colorado Department of Health were self-authenticating, notarized by a notary public in Estes Park, and should have been admitted into evidence.
The district court reversed the county court's ruling. In reaching its decision, the district court analyzed sections 42-4-1202.2 and 42-4-1202(3)(b)(I) and reasoned that,
if the prosecution fails to strictly comply with 42-4-1202.2, the Court will then look to section 42-4-1202(3)(b)(I). The certifications will be admissible unless the court finds that noncompliance with a board of health rule impairs the validity and reliability of the testing method or test results. Otherwise, the court should admit the certifications and the noncompliance of the certification will go to the weight given to the test results.
This Court disapproves of the County Court ruling to not admit the intoxilyzer certification and the test results. The intoxilyzer has an attestation by the Director of the Colorado Department of Health, Division of Laboratories and is accompanied by a seal of the Department of Health. Therefore, the certification met the requirements of section 42-4-1202.2 and should have been admitted into evidence.
This Court finds that the County Court should have [also] admitted into evidence the standard simulator solution certification.... Although the simulator solution certification does not fully comply with section 42-4-1202.2, the County Court did not find that noncompliance with a board of health rule impairs the validity and reliability of the certifications. Therefore, the county court should have admitted the certification into evidence and considered its weight based on its noncompliance with section 42-4-1202.2.
The district court did not remand the case for a new trial on the charge of DUI per se, as it found that jeopardy had attached.
In his briefs before this court, McMullin argues that the prosecution has the burden of presenting foundational evidence establishing that the breathalyzer was in working order and was operating properly in order to admit into evidence the breath test results. Further, McMullin contends that the prosecution must demonstrate that the test results were certified or attested to by the Department of Health.
We granted certiorari to consider the following questions in the Thomas and McMullin cases, respectively:
Whether the district court erred in concluding that there are no specific minimum foundational requirements for the admissibility of breath test results into evidence at criminal trials.
Whether the district court...
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