June 26, 2019

Colorado Supreme Court: Preliminary Breath Test Results Cannot Be Used for Impeachment

The Colorado Supreme Court issued its opinion in Cain v. People on Monday, June 16, 2014.

Evidence—CRS § 42-4-1301.

The Supreme Court considered whether the results of a preliminary breath test (PBT) for blood alcohol content are admissible for impeachment purposes. The Court held that under CRS § 42-4-1301, the PBT results may not be used as evidence in any court action except as specifically provided in the statute itself. Thus, PBT results may not be used as impeachment evidence because the statute does not allow for using the results for such a purpose. The district court’s order was reversed and the case was remanded.

Summary and full case available here.

Tenth Circuit: Bar on Reviewing Fourth Amendment Violations Applies to 28 U.S.C. § 2255 Motions

The Tenth Circuit published its opinion in United States v. Lor on Tuesday, February 5, 2013.

A Wyoming Highway Patrol trooper stopped the defendant, Lee Vang Lor. for speeding in March 2007. After gaining consent to search the vehicle, the trooper found methamphetamine. The district court denied Lor’s motion to suppress the methamphetamine, and he entered a conditional guilty plea to one count of possessing methamphetamine with intent to distribute and one count of conspiring to do the same.

After the denial of the suppression motion was affirmed, Lor filed a pro se petition to vacate his sentence under 28 U.S.C. § 2255 on the basis of newly discovered evidence. The new evidence was that the Wyoming Highway Patrol terminated the trooper who stopped Lor because the trooper called in a false dispatch report after Lor’s arrest but before his suppression hearing. Lor argued that “he had no full and fair opportunity to litigate his Fourth Amendment claim because he did not have ‘crucial evidence needed to impeach the Government’s sole witness to establish reasonable suspicion.’”

Because the Fourth Amendment exclusionary rule is for deterrent purposes, the Tenth Circuit has extended the U.S. Supreme Court’s Stone v. Powell bar on reviewing Fourth Amendment violations in habeas proceedings to § 2255 motions, when the defendant had a full and fair opportunity to litigate his Fourth Amendment claim at trial and on direct appeal. “Absent ineffective assistance of counsel or government concealment, a defendant cannot claim that the mere existence of undiscovered material evidence deprived him of an opportunity to litigate his claim.”

Lor made no ineffective assistance of counsel claim and there was no evidence that the government withheld the potentially impeaching evidence as the trooper was not put on paid leave until four months after Lor’s suppression hearing. Additionally, the trooper had not made the false report in the unrelated case at the time of Lor’s stop and search, so it would have had no affect on his actions during the search. The court affirmed the denial of § 2255 relief.