February 18, 2019

Archives for January 17, 2019

Colorado Court of Appeals: Police Officer Authorized to Request Suspect to Complete Drug Test Even If Suspect Already Completed Alcohol Test

The Colorado Court of Appeals issued its opinion in People v. Fuerst on Thursday, January 10, 2019.

Driving Under the Influence—Driving While Ability Impaired—Express Consent Statute—Breath and Blood Tests—Confrontation Rights.

Defendant backed his car into a pickup truck. A bystander told a police officer on the scene that after the accident, defendant asked her if she wanted his beer because he needed to hide it. Defendant performed several roadside sobriety tests. Based on his performance on these tests and the bystander’s statement, the officer believed defendant was under the influence of alcohol. Defendant then elected to take a breath alcohol test, which showed that defendant’s blood alcohol content was zero. The officer then asked defendant to take a blood test to test for drugs. Defendant initially refused, but after an officer told him his license would be revoked if he refused, defendant consented to the test. The blood test revealed 101 nanograms of Alprazolam, which is near the upper limit of the therapeutic range.

Before trial, defendant moved to suppress the blood test results. The trial court denied the motion. At trial, the jury found defendant not guilty of driving under the influence but found him guilty of driving while ability impaired and unsafe backing.

On appeal, defendant contended that the trial court erred in denying his motion to suppress the blood test because the officer violated his constitutional rights by requiring him to complete the blood test after he had already selected and completed the breath test. Defendant argued that the Expressed Consent Statute doesn’t authorize an officer to request a drug test if the officer has already requested, and the suspect has completed, an alcohol test. Under the Expressed Consent Statute, if a police officer has probable cause to believe that a driver is under the influence of alcohol or drugs, the officer may request either the applicable alcohol tests, the applicable drug tests, or both, and the driver is obligated to complete them. The statute doesn’t say an officer can only do one or the other. Accordingly, the procedure the officer employed didn’t violate the Expressed Consent Statute. Because defendant’s statutory claim fails, his constitutional claim necessarily fails. The trial court did not err in denying the motion to suppress.

Defendant also contended that the trial court violated his confrontation rights and C.R.S. § 16-3-309(5) by admitting a laboratory report containing his blood test results. He contended that the witness who testified about the report and the blood test results wasn’t sufficiently involved in the process of testing the blood sample and certifying the results. Here, the Colorado Bureau of Investigation (CBI) toxicologist, who was qualified as an expert in forensic science and forensic toxicology, testified about the report. The 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 C.R.S. § 16-3-309(5). The laboratory report was admissible.

The judgment was affirmed.

Summary provided courtesy ofColorado Lawyer.

Colorado Court of Appeals: Partial Closure of Courtroom Without Specific Findings was Structural Error

The Colorado Court of Appeals issued its opinion in People v. Irving on Thursday, January 10, 2019.

Constitutional Law—Sixth Amendment—Public Trial—Courtroom Closure.

Defendant was charged with first degree murder and conspiracy to commit murder in connection with a gang-related dispute. During his trial, the prosecutor requested that the court exclude defendant’s mother from the courtroom during his former girlfriend’s testimony because, according to the prosecution, defendant’s mother had urged the girlfriend not to cooperate with the police about four years earlier. The trial court granted the prosecution’s request and partially closed the courtroom during the testimony of defendant’s former girlfriend. Defendant was convicted of second degree murder and conspiracy to commit murder.

On appeal, defendant contended that the courtroom closure violated his constitutional right to a public trial. The proponent of a courtroom closure must demonstrate not only an overriding interest but also a substantial probability that the identified interest will be prejudiced by an open courtroom. The need to protect witnesses from intimidation constitutes an overriding interest. Here, the alleged intimidation was based on a single, ambiguous, four-year-old statement that the girlfriend later disregarded. The trial court may have identified an overriding interest, but it failed to make any finding that the interest in preventing witness intimidation would be prejudiced unless defendant’s mother was excluded from the courtroom during the girlfriend’s testimony. Therefore, the court erred in partially closing the courtroom and violated defendant’s constitutional right to a public trial. Further, the error was structural.

The convictions were reversed and the case was remanded for a new trial.

Summary provided courtesy ofColorado Lawyer.

Tenth Circuit: Unpublished Opinions, 1/16/2019

On Wednesday, January 16, 2019, the Tenth Circuit Court of Appeals issued no published opinion and one unpublished opinion.

Olagues v. Muncrief

Case summaries are not provided for unpublished opinions. However, some published opinions are summarized and provided by Legal Connection.