April 24, 2019

Colorado Supreme Court: Detective’s Testimony About Odor of Metabolized Alcohol Improperly Admitted as Lay Testimony

The Colorado Supreme Court issued its opinion in People v. Kubuugu on Monday, January 28, 2019.

Witness Qualification—Expert Testimony— Harmless Error.

This case, which involves charges of driving under the influence and child abuse, required the court to determine whether the trial court erred by admitting expert testimony under the guise of lay testimony and whether such error was harmless. Here, the trial court allowed a police officer to testify at trial, without being qualified as an expert, about the ability to detect the smell of metabolized alcohol and that he could, based on that odor, opine about the volume of alcohol ingested and the timing of when it was consumed. The officer testified that this ability was learned through specialized training and years of experience as a police officer.

The court held that the police officer’s testimony about the odor of metabolized alcohol was expert testimony under the guise of lay testimony because an ordinary person would be unable to offer the same opinion. Admitting this evidence was not harmless because it was the only evidence that specifically refuted defendant’s testimony that he only began drinking alcohol after he had parked his car.

Accordingly, the court of appeals’ judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

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