     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                July 23, 2020

                               2020COA112

No. 18CA1557, People v. Ambrose — Crimes — DWAI; Vehicles
and Traffic — Alcohol and Drug Offenses — Certification of
Breath Test Instruments; Constitutional Law — Sixth
Amendment — Confrontation Clause

     As a matter of first impression in Colorado and consistent with

other jurisdictions, a division of the court of appeals holds that a

“working order” certificate generated by an Intoxilyzer 9000 (I-9000)

machine is not testimonial and does not implicate a defendant’s

confrontation rights. The division concludes that such certificates

are admissible if they comply with the requirements of section 42-4-

1303, C.R.S. 2019, and that evidence related to the machine’s

reliability goes to the weight of the evidence, not its admissibility.

     The division also concludes that a deputy’s opinion that the I-

9000 was working properly constitutes an expert opinion that was
erroneously admitted as a lay opinion, but that any error was

harmless.

     Finally, the division rejects the remaining contentions that the

trial court erroneously (1) found the arresting officer had reasonable

suspicion; (2) failed to remove a biased juror for cause; (3) found the

prior driving under the influence convictions a sentence enhancer

rather than an element of the offense; (4) denied an evidentiary

hearing on the admissibility of the breath test result; and (5)

violated double jeopardy by imposing the persistent drunk driver

surcharge after sentencing.
COLORADO COURT OF APPEALS                                           2020COA112


Court of Appeals No. 18CA1557
Rio Blanco County District Court No. 17CR71
Honorable Anne K. Norrdin, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

William Edward Ambrose,

Defendant-Appellant.


                             JUDGMENT AFFIRMED

                                    Division IV
                            Opinion by JUDGE FREYRE
                               Lipinsky, J., concurs
                  Terry, J., concurs in part and dissents in part

                            Announced July 23, 2020


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
¶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


                                    1
 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. We discern no reversible error and affirm the

 judgment.

                       I.    Factual Background

¶3    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.

¶4    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


                                    2
 of the car. Deputy Dilka again detected an odor of an alcoholic

 beverage, this time coming from Mr. Ambrose.

¶5    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.

¶6    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




 1 The People initially charged Mr. Ambrose with failure to provide
 insurance and failure to display proper taillights as well. Before
 trial, the prosecution dismissed the taillight violation, and during
 trial, the court dismissed the failure to provide insurance count.

                                    3
 surcharge at the hearing. The mittimus, however, reflected this

 surcharge.

                        II.   Reasonable Suspicion

¶7       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

¶8       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.

 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.

¶9       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.




                                     4
¶ 10   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).

¶ 11   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 (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.




                                     5
                               B.   Analysis

¶ 12   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. 2019, 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 back-

  up 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 (“Suspicion of even a minor traffic offense can provide

  the basis for a stop.”).

¶ 13   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. 2019. 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


                                     6
  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.

¶ 14   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 (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 Colorado.


                                      7
¶ 15   Since we conclude that Deputy Dilka had a reasonable

  suspicion to initiate a traffic stop under section 42-4-215(6), we

  need not address Mr. Ambrose’s remaining arguments concerning

  the mistake of law exception. See People v. Curtis, 2014 COA 100,

  ¶ 12 (applying the principle of judicial restraint: “if it is not

  necessary to decide more, it is necessary not to decide more”)

  (citation omitted).

                             III.   Biased Juror

¶ 16   Mr. Ambrose next contends that the trial court erroneously

  denied his challenge for cause to Juror C.J. Specifically, he faults

  the court for failing to rehabilitate or otherwise ensure Juror C.J.’s

  ability to be fair and impartial after she indicated (by raising her

  hand) that (1) she agreed it was always wrong to drive after having a

  drink and (2) a person accused of doing something wrong should

  explain himself or herself. Based on our consideration of the entire

  voir dire, we discern no reversible error with respect to the first

  point, and we decline to consider the second point because it is

  raised for the first time on appeal.




                                       8
                           A.    Additional Facts

¶ 17   The trial court began voir dire by reading pertinent rules of law

  (including the presumption of innocence and the burden of proof)

  and inquiring about the statutory disqualifications for jury service.

  At the end of this process, the court asked, “Is there anyone who

  wants to bring anything to my attention? No hands are raised.”

¶ 18   The prosecutor then inquired about the prospective jurors’

  ability to follow the law, asking whether anyone would just say to

  themselves, “I’m going to go ahead and, and just say this shouldn’t

  be a crime” or “I’m not going to follow what I don’t believe in.” Juror

  C.J. did not raise her hand.

¶ 19   The prosecutor then asked, “Has anyone here ever had to take

  away somebody’s keys?” Juror C.J. raised her hand and explained

  that she once worked as a bartender and had taken patrons’ keys

  away. When asked what helped her make that decision, Juror C.J.

  responded, “Observation and erring on the side of safety.”

¶ 20   No prospective jurors raised their hands after the prosecutor

  asked them whether they felt so strongly about alcohol that they

  necessarily would render a guilty verdict, or whether anyone did not

  trust law enforcement.


                                     9
¶ 21   Defense counsel began voir dire by asking the panel members

  if they “think[] that it’s never okay or not okay to have a beer and

  then go drive a car?” Several prospective jurors, including Juror

  C.J., raised their hands. Counsel then followed up with a different

  juror, Juror R.N., in the following colloquy:

             [Counsel]: So [Juror R.N.], I want to ask you a
             question. If you’re told that there’s a rule in
             Colorado, a law in Colorado that in some
             circumstances it is legal, it is not illegal to
             have a drink and then get in a car. That
             sounds to be contrary to what your life beliefs
             are. Is that fair?

             [Juror R.N.]: Yes.

             [Counsel]: Okay. And if you were asked to
             raise your hand and swear an oath that you
             could follow that rule, is that something that
             you would struggle with?

             [Juror R.N.]: Probably —

             [Counsel]: Okay.

             [Juror R.N.]: — yeah.

             [Counsel]: And thank you for your honesty.
             And again, this is what this whole process is
             about. Is talking through stuff like that. So I
             really appreciate that. Is it fair to say some
             little defense lawyer isn’t going to change your
             mind about that thinking[?] You’ve had this
             belief for 40 years.

             [Juror R.N.]: Yes.


                                     10
          [Counsel]: Okay. Fair to say that whatever he
          says, he’s not going to change your mind about
          your beliefs.

          [Juror R.N.]: No.

          [Counsel]: And even the Judge. Fair to say
          that if she tells you otherwise, these are your
          thoughts right now.

          [Juror R.N.]: No, because mine’s based on
          actually a higher calling. My Christianity. I, I
          believe that you’re responsible for your own
          actions. Anybody.

          [Counsel]: Fair enough. And I think that’s —

          [Juror R.N.]: (Indiscernible).

          [Counsel]: -- that’s very commendable. And so
          this is something that goes even deeper to you.
          It’s —

          [Juror R.N.]: Yes.

          ....

          [Counsel]: Okay. Well, I appreciate that, Juror
          R.N. Who here agrees with [Juror R.N.] that if
          they’re told that rule, that in some
          circumstances you can drink and you can
          drive a car, it’s not illegal, that conflicts with
          what you believe? Who agrees with [Juror
          R.N.]?

(Emphasis added.) Juror C.J. did not raise her hand in response to

this last question. And defense counsel never questioned Juror

C.J. further concerning her earlier raised hand.


                                  11
¶ 22   Later, defense counsel asked about a defendant’s right to

  remain silent and said, “If you’re accused of doing something

  wrong, who thinks you should explain yourself? I see some head

  nodding. I want to see a hand raised.” Juror C.J. was among those

  jurors who raised their hands, but defense counsel never asked her

  any further questions.

¶ 23   During the subsequent bench conference, defense counsel

  said, “I challenge [C.J.] for cause on the same grounds [as R.N.]. I

  did not get as much information from her, but she did raise her

  hand and agree with [R.N.] with the impairment, so I make the

  same constitutional and statutory motion for cause on [C.J.].”

  Defense counsel did not challenge Juror C.J. based on the

  defendant’s right to remain silent.

¶ 24   Concerning Juror C.J., the prosecutor responded:

            [C.J.], the mere fact that she agreed with some
            other people [sic]. There was no statement,
            [that she] could not follow the law. There was
            no ultimate statement that actually conflicts or
            would bring about [sic]. It’s just [defense
            counsel’s] gut feeling that he thinks maybe she
            couldn’t. She needs to actually be confronted
            with the, the idea that she couldn’t follow the
            law and say that she couldn’t follow the law.
            And that was not the case with [C.J.].



                                    12
¶ 25   The trial court agreed with the prosecution and said:

             With regard to [C.J.], while she raised her
             hand in response to a question (indiscernible)
             she was not specifically asked about
             (indiscernible), nor did she specifically state
             [that] she would not follow the law. I can’t find
             just by her — her raised [hand] that she is
             subject to a cause challenge, to a valid cause
             challenge (indiscernible). [The challenge to
             C.J.] is denied.

¶ 26   After voir dire, both parties exercised peremptory challenges to

  excuse several jurors. The defense did not exercise a peremptory

  challenge to remove Juror C.J.

                    B.    Standard of Review and Law

¶ 27   We will overturn a trial court’s ruling on a challenge for cause

  only upon an affirmative showing that the court abused its

  discretion, Carrillo v. People, 974 P.2d 478, 485 (Colo. 1999); that

  is, only if there is no evidence in the record to support the ruling,

  People v. Richardson, 58 P.3d 1039, 1042-43 (Colo. App. 2002).

  This is a “very high standard of review” that accords deference to

  the trial court’s superior ability to assess a potential juror’s

  credibility, demeanor, and sincerity. People v. Young, 16 P.3d 821,

  824 (Colo. 2001) (quoting Carrillo, 974 P.2d at 485-86); Morrison v.

  People, 19 P.3d 668, 672 (Colo. 2000).


                                     13
¶ 28   In determining whether a court abused its discretion in ruling

  on a challenge for cause, we must review the entire voir dire of the

  prospective juror. Carrillo, 974 P.2d at 486. If the trial court

  abused its discretion, we must conduct an “outcome-determinative”

  analysis to determine whether the error warrants reversal, if the

  defendant used a peremptory challenge to excuse the wrongful

  juror. Abu-Nantambu-El, ¶ 22. However, if the defendant fails to

  use a peremptory challenge to dismiss a biased juror, and the juror

  serves on the jury, the erroneous seating of the biased juror is

  structural error requiring reversal. See Richardson v. People, 2020

  CO 46, ¶ 28.

¶ 29   To protect a defendant’s right to an impartial jury, a trial court

  must excuse prejudiced or biased persons from the jury. See

  § 16-10-103(1)(j), C.R.S. 2019; Nailor v. People, 200 Colo. 30, 31-32,

  612 P.2d 79, 80 (1980). “Actual bias is a state of mind that

  prevents a juror from deciding the case impartially and without

  prejudice to a substantial right of one of the parties.” People v.

  Macrander, 828 P.2d 234, 238 (Colo. 1992), overruled on other

  grounds by Novotny, 2014 CO 18.




                                    14
¶ 30    When a prospective juror makes a statement evincing bias,

  she may nonetheless serve if she agrees to set aside any

  preconceived notions and make a decision based on the evidence

  and the court’s instructions. People v. Phillips, 219 P.3d 798, 801

  (Colo. App. 2009). It is within the trial court’s discretion to accept a

  juror’s statements that she would base her decision on the evidence

  presented at trial. See Carrillo, 974 P.2d at 485.

¶ 31    A juror who initially misunderstands the law should not be

  removed for cause if, after explanation and rehabilitative efforts, the

  court believes that she can render a fair and impartial verdict based

  on the instructions given by the judge and the evidence presented

  at trial. People v. Clemens, 2017 CO 89, ¶ 16. The court must

  examine the juror’s statements or silence in light of the totality of

  the circumstances. Id. at ¶ 20. “[A] prospective juror’s silence in

  response to rehabilitative questioning constitutes evidence that the

  juror has been rehabilitated when the context of that silence

  indicates that the juror will render an impartial verdict according to

  the law and the evidence submitted to the jury at the trial.” Id. at ¶

  19.




                                     15
                            C.    Preservation

¶ 32   The People concede that Mr. Ambrose preserved the first issue

  related to the drinking and driving question. However, they argue

  that defense counsel never challenged Juror C.J. for cause based

  on the second question concerning the right to remain silent. Mr.

  Ambrose responds that he preserved both issues by asking Juror

  C.J. to be excused for cause because she was biased. Because

  defense counsel alleged bias only with regard to the first issue, and

  never mentioned or argued Juror C.J.’s raised hand to the right to

  remain silent question, we agree with the People that the first issue

  is preserved, and the second issue is not.

¶ 33   If a party fails to raise a matter pertaining to the qualifications

  and competency of a prospective juror before the jury is sworn in,

  the matter “shall be deemed waived.” Crim. P. 24(b)(2). Hence,

  when a party fails to preserve a for-cause challenge, the appellate

  court will “decline to address for the first time on appeal a different

  ground that was not clearly brought to the attention of the trial

  court and opposing counsel.” People v. Coughlin, 304 P.3d 575, 580

  (Colo. App. 2011). Because defense counsel failed to preserve a

  challenge to Juror C.J. based on the right to remain silent question


                                     16
  before the jury was sworn, we conclude that it is waived and decline

  to consider it. See People v. Cevallos-Acosta, 140 P.3d 116, 122

  (Colo. App. 2005) (the “defendant abandoned his challenge for

  cause to [a prospective juror] by failing to [renew his] request that

  the trial court grant or deny [the challenge] before exercising a

  peremptory challenge to excuse her”); People v. Coleman, 844 P.2d

  1215, 1218 (Colo. App. 1992) (declining to address the defendant’s

  for-cause challenge on the grounds of bias “because defendant did

  not present the issue of any actual, or implied, prejudice in the trial

  court,” but instead challenged the juror on another basis).

                              D.    Analysis

¶ 34   Based on the record before us, we are satisfied that the trial

  court’s decision to deny Mr. Ambrose’s challenge for cause was not

  an abuse of discretion. Although Juror C.J. raised her hand in

  response to defense counsel’s question concerning whether it was

  “never okay” to “have a beer and then go drive a car,” she did not

  raise her hand at the conclusion of Juror R.N.’s questioning when

  counsel asked whether any of the jurors agreed with Juror R.N.

  And defense counsel did not further question Juror C.J. concerning

  an inability to be fair. The absence of this further questioning,


                                    17
  when considered with the absence of raised hands to the

  prosecutor’s questions about the panel’s ability to be fair and

  impartial, leaves a record containing no evidence that Juror C.J.

  was unable to be fair and impartial, or that she would be unable to

  follow the law. Consequently, Juror C.J. displayed no bias or

  enmity against Mr. Ambrose, and we discern no error in the court’s

  ruling denying Mr. Ambrose’s challenge for cause.

                  IV.   Felony DWAI Prior Convictions

¶ 35   Mr. Ambrose next contends that his prior driving under the

  influence (DUI) convictions are an element of the offense (not a

  sentence enhancer) of felony DWAI that entitled him to have a jury

  decide the matter beyond a reasonable doubt.

¶ 36   We note that the supreme court granted certiorari on this

  issue in Linnebur v. People, No. 18SC884, 2019 WL 3934483 (Colo.

  Aug. 19, 2019) (unpublished order). However, we still must decide

  the case before us.

¶ 37   We review the construction of statutes de novo. Lobato v.

  Indus. Claim Appeals Office, 105 P.3d 220, 223 (Colo. 2005). A

  sentence enhancement from a misdemeanor to a felony is not an

  element of the offense if (1) the defendant may be convicted of the


                                   18
  underlying offense without any proof regarding the sentence

  enhancer and (2) the sentence enhancement provision only

  increases the potential punishment. People v. Schreiber, 226 P.3d

  1221, 1223 (Colo. App. 2009).

¶ 38   The crime of DWAI is defined in section 42-4-1301, C.R.S.

  2019:

            A person who drives a motor vehicle or vehicle
            while impaired by alcohol or by one or more
            drugs . . . commits driving while ability
            impaired. Driving while ability impaired is a
            misdemeanor, but it is a class 4 felony if the
            violation occurred after three or more prior
            convictions, arising out of separate and
            distinct criminal episodes, for DUI, DUI per se,
            or DWAI . . . .

  § 42-4-1301(1)(b).

¶ 39   This section is virtually identical to the definitions of DUI and

  DUI per se in section 42-4-1301(1)(a), (2)(a). Divisions of this court

  are split as to whether prior convictions constitute sentence

  enhancers or elements of the felony DUI or DWAI offense. The

  divisions in People v. Jiron, 2020 COA 36, ¶ 14, People v. Quezada-

  Caro, 2019 COA 155, ¶¶ 10-31, and People v. Gwinn, 2018 COA

  130, ¶¶ 49-50, held that prior DUI convictions constitute a

  sentence enhancer that can be proved to the court by a


                                    19
  preponderance of the evidence. A division of this court in People v.

  Viburg, 2020 COA 8M, however, departed from Gwinn and

  Quezada-Caro, and held that prior convictions are an element of the

  felony offense that must be proved to a jury (if the defendant asks

  for one) beyond a reasonable doubt. Id. at ¶¶ 6-31.

¶ 40   We decline to follow Viburg, and for the reasons stated in

  Jiron, Gwinn, and Quezada-Caro, we conclude that the court did

  not err by denying defendant’s motion to have a jury decide the

  issue of his prior convictions.

                           V.   Shreck Hearing

¶ 41   Mr. Ambrose next contends that the trial court erroneously

  admitted I-9000 evidence without first holding a hearing to assess

  its reliability under People v. Shreck, 22 P.3d 68 (Colo. 2001). We

  disagree.

                          A.    Additional Facts

¶ 42   Before trial, Mr. Ambrose requested a hearing to determine the

  reliability and relevance of the I-9000 device under Shreck.

  Attached to his motion were numerous press articles describing

  allegations that certain I-9000 certificates in Colorado had been

  fraudulently obtained and generated. He also challenged the


                                    20
I-9000’s inner workings and the reliability of the device’s underlying

science. The trial court found as follows:

          Colorado Revised Statutes 42-4-1301 requires
          courts to take judicial notice of the testing
          methods and of the design and operation of
          testing devices, as certified by the Colorado
          Department of Public Health [and]
          Environment to determine a person’s alcohol
          level. As recognized by the Court in People v.
          Bowers, 716 P.2d 471, Colorado Supreme
          Court case from 1986. Once CDPHE certifies a
          methodology of testing for a device, the Court
          may take judicial notice of the reliability of the
          methodology and the device without the
          necessity for further proof.

          So here, the statutory scheme in Colorado
          provides that [if a] breath device and method
          [are] certified by CDPHE, the Court is to take
          judicial notice of [their] reliability. The burden
          is on the prosecution at trial to determine that
          the testing devices were certified, were in
          proper working order, and operated by a
          qualified person and operated within
          substantial compliance with CDPHE
          regulations. If those things are satisfied, the
          results are admissible. Thomas v. People, 895
          P.2d 1040, Colorado 1995.

          I have reviewed the defendant’s motion for a
          [Shreck] hearing on the reliability and
          admissibility, and I’ve reviewed the attached
          news articles and [Judge Taylor’s Order] out of
          Gilpin [County] from last summer related to
          the device issues that occurred around the
          rollout of the [I-9000s] in 2013 and used by
          CDPHE of an expired — or the signature of an


                                  21
individual who no longer worked at that
department.

Notably in Judge Taylor’s conclusion was the
statement that if the People can show the
[I-9000] was in proper working order without
the instrument certificate that was the one
with the faulty signature, the BAC results may
be admissible. Judge Taylor’s Order, while [it
is] interesting and instructive with regard to
the [I-9000] certification process and the
inadmissibility in the context of that case of an
instrument certificate, it did not address
whether a defendant is entitled to a [Shreck]
hearing on the Intoxilyzer.

Here, I do find that the breath tests in the
Intoxilyzer are not a new or novel science, such
that the Court needs to hold an evidentiary
hearing to address the reliability of the
science. Certainly[,] the case law with regard
to the admissibility about breath tests is from,
for example, Bowers came out in 1986,
Thomas came out in 1995, so we’re talking
about 25, 30 years of information regarding
the reliability of breath testing. I cannot find
that it’s a new or novel science.

I find that the admissibility and reliability of
the breath test is an issue for trial being the
prosecution must put on sufficient evidence,
as I said before, that the device was certified,
proper working order, operated by a qualified
person and in substantial compliance with
CDPHE regulations. The defendant will be
afforded the ability to object both to the
admission based on the record at trial and to
cross-examine . . . or present other evidence
that may attack the weight the jury gives


                       22
            [indiscernible] evidence. But the defendant’s
            request for a [Shreck] hearing on the breath
            testing device in this case is denied.

¶ 43   The prosecutor later endorsed Deputy Dilka as an expert in

  standard sobriety roadside maneuvers and the operation and

  functionality of the I-9000 device. Mr. Ambrose objected to the

  endorsement as untimely and reiterated his concerns under Shreck.

  At a subsequent hearing, defense counsel explained that the

  endorsement “calls into question how the Court could rule on a

  Shreck motion regarding the . . . machine.” The court did not

  readdress the Shreck issue but, instead, offered the defense a

  continuance of the trial for up to one month to endorse its own

  expert. The defense did not request a continuance.

            B.    Legal Framework and Standard of Review

¶ 44   CRE 702 governs the admissibility of expert testimony. It

  states:

            If scientific, technical, or other specialized
            knowledge will assist the trier of fact to
            understand the evidence or to determine a fact
            in issue, [then] a witness qualified as an expert
            by knowledge, skill, experience, training, or
            education, may testify thereto in the form of an
            opinion or otherwise.




                                   23
¶ 45   Scientific evidence is admissible under CRE 702 if it is both

  relevant and reliable. Shreck, 22 P.3d at 77; People v. Friend, 2014

  COA 123M, ¶ 28, aff’d in part and rev’d in part, 2018 CO 90. In

  determining the admissibility of expert testimony, the trial court

  conducts a Shreck analysis, which requires the proponent to show

  that (1) the scientific principles at issue are reasonably reliable; (2)

  the witness is qualified; (3) the testimony would be helpful to the

  jury; and (4) the evidence satisfies CRE 403. People v. Rector, 248

  P.3d 1196, 1200 (Colo. 2011); Friend, ¶ 28. The purpose of this

  inquiry is to determine whether the proffered evidence is reliable

  and relevant, and for the trial court — acting as gatekeeper — to

  prevent the admission of “junk” science. People v. Wilson, 2013

  COA 75, ¶ 22; Estate of Ford v. Eicher, 220 P.3d 939, 942 (Colo.

  App. 2008), aff’d, 250 P.3d 262 (Colo. 2011). The trial court’s

  reliability inquiry should be “broad in nature and consider the

  totality of the circumstances” specific to each case. Shreck, 22 P.3d

  at 77.

¶ 46   When a party requests a Shreck analysis, the court may, in its

  discretion, determine whether an evidentiary hearing would be

  helpful. Rector, 248 P.3d at 1201. However, the trial court is not


                                     24
  required to conduct a hearing if it “already has sufficient

  information to make specific findings under Shreck.” People v.

  Campbell, 2018 COA 5, ¶ 41 (citation omitted). “Concerns about

  conflicting theories or the reliability of scientific principles go to the

  weight of the evidence, not its admissibility.” Id. at ¶ 42 (citing

  Estate of Ford, 250 P.3d at 269). These concerns are mitigated by

  vigorous cross-examination, presentation of contrary evidence, and

  careful instruction on the burden of proof. Shreck, 22 P.3d at 78.

¶ 47   “We review a trial court’s evidentiary ruling for an abuse of

  discretion.” Campbell, ¶ 38. The trial court abuses its discretion

  when its ruling is “manifestly arbitrary, unreasonable, or unfair.”

  Id. (citation omitted). And we review any error in denying a Shreck

  hearing for nonconstitutional harmless error. Wilson, ¶ 24. An

  error is harmless if a reviewing court can say with fair assurance

  that, in light of the record as a whole, the error did not

  substantially influence the verdict or impair the trial’s fairness. Id.

¶ 48   Section 42-4-1301(6)(c) provides that

             (I) . . . [the trial court] shall take judicial notice
             of methods of testing a person’s alcohol or
             drug level and of the design and operation of
             devices, as certified by the department of
             public health and environment, for testing a


                                       25
             person’s blood, breath, saliva, or urine to
             determine such person's alcohol or drug
             level. . . .

             (II) Nothing in this paragraph (c) prevents the
             necessity of establishing during a trial that the
             testing devices used were working properly and
             were properly operated. Nothing in this
             paragraph (c) precludes a defendant from
             offering evidence concerning the accuracy of
             testing devices.

  (Emphasis added.)

¶ 49   In People v. Bowers, our supreme court stated that “[b]reath

  tests to determine the concentration of alcohol in a suspect’s breath

  have long been recognized as valid scientific evidence.” 716 P.2d

  471, 473 (Colo. 1986). The court also concluded that the statute

  delegated authority to the Board of Health (which was later replaced

  by the Colorado Department of Public Health and Environment

  (CDPHE)) to “prescribe scientifically valid procedures for chemical

  testing that will not only ensure safety in the testing process

  but . . . will [also] provide sufficient reliability to the testing method

  as to avoid the necessity of formal evidentiary proof on this aspect

  of the testing process.” Id. at 474. The requirement for courts to

  take judicial notice of the methods of testing a person’s alcohol

  content means “[t]he legislature obviously believed that the testing


                                      26
  methods prescribed in the rules of [CDPHE] would be reasonably

  reliable, thus justifying the court in taking judicial notice of the

  testing method and thereby dispensing with the requirement of

  formal proof on that matter.” Id.

                               C.   Analysis

¶ 50   We discern no abuse of discretion in the trial court’s denial of

  a Shreck hearing, for two reasons. First, by employing the

  mandatory word “shall,” section 42-4-1301(6)(c)(I) expressly

  instructs courts to take judicial notice of the methods of testing a

  person’s alcohol level as certified by CDPHE. People v. Dist. Court,

  713 P.2d 918, 921 (Colo. 1986) (noting that the Colorado Supreme

  Court “has consistently held that the use of the word ‘shall’ in a

  statute is usually deemed to involve a mandatory connotation”).

  Second, the record reflects that the I-9000 machine used in this

  case was certified by CDPHE,2 and Deputy Dilka testified that the

  machine was working properly.




  2We note that Mr. Ambrose challenges separately whether the I-
  9000 used in this case was in fact certified by CDPHE because the
  certificate lacked a signature. We address that contention below.

                                      27
¶ 51   We are not persuaded that the news articles attached to Mr.

  Ambrose’s motion relating to alleged fraudulent certification of other

  I-9000 machines require a different result. These issues go to the

  weight of the evidence and not its admissibility and are properly

  explored through cross-examination or the presentation of other

  evidence. See Shreck, 22 P.3d at 78. Moreover, neither the statute

  nor the trial court’s order precluded Mr. Ambrose from introducing

  evidence at trial challenging the reliability of breath tests. See § 42-

  4-1301(6)(c)(II).

¶ 52   Further, we are not convinced that the prosecution’s late

  endorsement of Deputy Dilka as an expert witness necessitates a

  different result. Mr. Ambrose does not separately challenge the

  timeliness of the endorsement, so we do not consider it further.

  People v. Plancarte, 232 P.3d 186, 193 (Colo. App. 2009) (declining

  to consider an issue defendant did not raise in his opening brief).

  And, the prosecutor never qualified Deputy Dilka as an expert at

  trial. Finally, the trial court offered the defense a reasonable

  remedy to any late endorsement — to continue the trial so that

  defense counsel could endorse his own witness. Counsel refused




                                    28
  this offer. Accordingly, we discern no abuse of discretion in the

  court’s ruling denying a Shreck hearing.

                    VI.      Expert Versus Lay Testimony

¶ 53   Mr. Ambrose next contends that Deputy Dilka’s testimony

  about the I-9000, specifically that the machine worked properly,

  constituted expert testimony in the guise of lay testimony. We

  conclude that any error was harmless.

                    A.       Standard of Review and Law

¶ 54   Again, we review a trial court’s evidentiary rulings for an

  abuse of discretion. Venalonzo v. People, 2017 CO 9, ¶ 15. A trial

  court abuses its discretion when its ruling is unreasonable,

  arbitrary, or contrary to law. Id. Preserved errors in the admission

  of evidence are reviewed under the harmless error standard. People

  v. Stewart, 55 P.3d 107, 124 (Colo. 2002). Such a ruling is not

  reversible “unless the ruling affects a substantial right of the party

  against whom the ruling is made.” Id. “If a reviewing court can say

  with fair assurance that, in light of the entire record of the trial, the

  error did not substantially influence the verdict or impair the

  fairness of the trial, the error may properly be deemed harmless.”

  Id. (citations omitted).


                                       29
¶ 55   CRE 701 and 702 distinguish lay and expert testimony.

  Under CRE 701, a lay opinion must be “(a) rationally based on the

  perception of the witness, (b) helpful to a clear understanding of the

  witness’[s] testimony or the determination of a fact in issue, and (c)

  not based on scientific, technical, or other specialized knowledge

  within the scope of [CRE] 702.” Under CRE 702, “[i]f scientific,

  technical, or other specialized knowledge will assist the trier of fact

  to understand the evidence or to determine a fact in issue, a

  witness qualified as an expert by knowledge, skill, experience,

  training, or education, may testify thereto in the form of an opinion

  or otherwise.”

¶ 56   A witness’s basis for his opinion and the nature of the

  experiences that form such opinion distinguish lay testimony from

  expert testimony. Venalonzo, ¶ 22; see Stewart, 55 P.3d at 123.

  With lay opinion testimony, “courts consider whether ordinary

  citizens can be expected to know certain information or to have had

  certain experiences.” Venalonzo, ¶ 22 (quoting People v. Rincon,

  140 P.3d 976, 982 (Colo. App. 2005)). On the other hand, expert

  testimony requires experience or skills that go beyond common

  experience. Id. Therefore, a trial court must look to the basis for


                                     30
  the witness’s opinion in order to determine whether it amounts to

  lay or expert testimony. Id. at ¶ 23.

                            B.    Application

¶ 57   Deputy Dilka testified about the step-by-step procedures he

  followed when operating the I-9000 machine, including testing air

  blanks before testing Mr. Ambrose’s breath. He also testified about

  the results the machine generated at each step, including “zero”

  readings for air blanks and a 0.063 reading for Mr. Ambrose’s

  sample. After Deputy Dilka had described the process and results

  generated, the prosecutor asked him whether it appeared to him

  that the I-9000 machine used here “was working properly.” He

  responded, “It does.” The prosecutor then admitted the machine-

  generated report describing the data generated. See Stewart, 55

  P.3d at 123 (a police officer’s testimony about his experiences and

  perceptions is lay opinion testimony).

¶ 58   We acknowledge that Deputy Dilka’s opinion is arguably an

  expert opinion because it was based on specialized training that he

  received in the operation of the I-9000. See Venalonzo, ¶ 23 (if “the

  witness provides testimony that could not be offered without

  specialized experiences, knowledge, or training, then the witness is


                                    31
  offering expert testimony”); People v. Veren, 140 P.3d 131, 136

  (Colo. App. 2005) (“[W]hen an officer’s opinions require the

  application of, or reliance on, specialized skills or training, the

  officer must be qualified as an expert before offering such

  testimony.” (quoting Stewart, 55 P.3d at 123)). The prosecutor did

  not qualify Deputy Dilka as an expert, however.

¶ 59   Nevertheless, we conclude that any error was harmless

  because Deputy Dilka’s testimony did not substantially influence

  the verdict or the fairness of the trial. First, the prosecution

  presented substantial evidence of Mr. Ambrose’s impairment. See

  Campbell v. People, 2019 CO 66, ¶¶ 41-42 (improperly admitting an

  officer’s expert testimony about the horizontal gaze nystagmus test

  was harmless because other evidence, including the defendant’s

  performance on other field sobriety tests, overwhelmingly supported

  the jury’s conclusion that the defendant’s ability to drive was

  impaired by alcohol). Deputy Dilka described Mr. Ambrose’s glassy

  eyes, an odor of alcohol on Mr. Ambrose’s person, and Mr.

  Ambrose’s failure of several roadside sobriety tests, all of which are

  indicative of impairment.




                                     32
¶ 60   As well, Deputy Dilka never interpreted the I-9000’s results

  and never opined that the I-9000 indicated Mr. Ambrose was

  impaired. Unlike Veren, where the division found that the

  improperly admitted opinion constituted the only evidence of

  distribution used to convict the defendant of distribution of a

  controlled substance, 140 P.3d at 140, the jury here had

  substantial other evidence, beyond the breath test, from which to

  determine that Mr. Ambrose was impaired to the slightest degree.

  Accordingly, we discern no reversible error in the admission of

  Deputy Dilka’s opinion.

                         VII. I-9000 Certificate

¶ 61   Mr. Ambrose next contends that the I-9000 certificate and

  results are inadmissible as a matter of law because the certificate,

  printed by the machine at the time of the test, lacks a signature.

  So, he says, the trial court abused its discretion by admitting it. We

  disagree.

¶ 62   As noted above, we review a trial court’s evidentiary rulings for

  an abuse of discretion. Nicholls v. People, 2017 CO 71, ¶ 17.

¶ 63   Section 42-4-1303, C.R.S. 2019, provides as follows:




                                    33
            Official records of the department of public
            health and environment relating to
            certification of breath test instruments,
            certification of operators and operator
            instructors of breath test instruments,
            certification of standard solutions, and
            certification of laboratories shall be official
            records of the state, and copies thereof,
            attested by the executive director of the
            department of public health and environment or
            the director’s deputy and accompanied by a
            certificate bearing the official seal for said
            department that the executive director or the
            director’s deputy has custody of said
            records, shall be admissible in all courts of
            record and shall constitute prima facie proof of
            the information contained therein. The
            department seal required under this
            section may also consist of a rubber stamp
            producing a facsimile of the seal stamped upon
            the document.

  (Emphasis added.) Our supreme court has held 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 as to their admissibility.” Thomas v. People,

  895 P.2d 1040, 1046 (Colo. 1995).

¶ 64   The parties do not dispute that the I-9000 certificate was not

  signed by the executive director of CDPHE, or that it included the

  department’s seal. Even assuming without deciding that the

  statute requires a signature, we apply our supreme court’s rule that


                                   34
  any such deficiency goes to the weight of the evidence and not its

  admissibility. See id. Therefore, we discern no error by the trial

  court in admitting the certificate, and we need not address the

  People’s or Mr. Ambrose’s statutory arguments.

                             VIII. Confrontation

¶ 65   Mr. Ambrose next contends that, if the I-9000 certificate is

  admissible under section 42-4-1303, then it is testimonial, and the

  statute violates his Sixth Amendment right to confrontation both

  facially and as applied. Specifically, he argues that if section

  42-4-1303 allows the prosecutor to avoid calling the state analyst

  who certified the machine, without proving that the analyst was

  unavailable, the statute violates his right to confront witnesses. We

  are not persuaded.

                        A.     Standard of Review

¶ 66   As previously stated, we review a court’s evidentiary rulings for

  an abuse of discretion. Nicholls, ¶ 17. But possible violations of

  the Confrontation Clause are reviewed de novo. Bernal v. People, 44

  P.3d 184, 198 (Colo. 2002). Statutory interpretation is also

  reviewed de novo. McCoy v. People, 2019 CO 44, ¶ 37.




                                     35
¶ 67   We review preserved evidentiary errors under the harmless

  error standard and confrontation violations under the constitutional

  harmless error standard. Hagos v. People, 2012 CO 63, ¶¶ 11-12.

  However, we review unpreserved errors — constitutional and

  nonconstitutional — for plain error. Id. at ¶ 14; People v. Barry,

  2015 COA 4, ¶ 65. “[U]nder plain error analysis, [the] defendant

  must establish that error occurred, that the error was obvious, and

  that the error’s effect is so grave that it undermines the

  fundamental fairness of the trial itself and casts doubt upon the

  reliability of the conviction.” Barry, ¶ 71.

                             B.   Preservation

¶ 68   As a threshold matter, the parties dispute preservation of this

  issue. Mr. Ambrose argues that he preserved the issue in his

  motion for a Shreck hearing by asserting that

             [t]o the extent that the People argue Colo. Rev.
             Stat. §42-4-1303 permits admission of the
             I-9000 results, this argument fails to take into
             consideration the constitutional implications of
             admitting untested, unreliable, and potentially
             misleading evidence in violation of Rule 702,
             403, and state and federal constitutional
             guarantees of Due Process and Confrontation.

  (Emphasis added.)



                                     36
¶ 69   Mr. Ambrose also relies on counsel’s objection during trial to

  admission of the I-9000 certificate and the breath test results “as

  unreliable.” The People argue that this was insufficient to preserve

  Mr. Ambrose’s appellate argument that admission of the working

  order certificate violated his rights under the Confrontation Clause.

  The trial court did not rule on the confrontation issue when it

  denied defense counsel’s motion for a Shreck hearing.

¶ 70   We acknowledge that a pretrial motion, like the one here, may

  preserve an evidentiary objection for appellate review “if the moving

  party fairly presents the issue to the court and the court issues a

  definitive ruling.” People v. Dinapoli, 2015 COA 9, ¶ 20; see also

  People v. Gross, 39 P.3d 1279, 1281 (Colo. App. 2001) (“[W]here a

  party objects during a pretrial hearing on a motion in limine . . . the

  objector is entitled to assume that the trial court will adhere to its

  initial ruling and that the objection need not be repeated.”). But a

  defendant may forfeit his right to fix a constitutional error by failing

  to make an adequate objection during trial. Martinez v. People,

  2015 CO 16, ¶ 13. General objections are insufficient. Id. at ¶ 14.

  Although no “talismanic language” is required to preserve an

  argument for appeal, a party “must present the trial court with ‘an


                                     37
  adequate opportunity to make findings of fact and conclusions of

  law’ on the issue.” Id. (citation omitted); see also Phillips v. People,

  2019 CO 72, ¶ 12 (to preserve a claim for appellate review, the party

  asserting error must have supplied the right ground for the request

  and that conclusory boilerplate contentions constitute insufficient

  preservation).

¶ 71   Counsel’s pretrial motion objected only to the I-9000’s results

  and not to the certificate related to the machine’s proper working

  condition. As well, counsel objected to the admission of the I-9000

  certificate and the breath test results during trial, but only “as

  unreliable,” without mentioning or arguing the Confrontation

  Clause. We conclude that the motion and this objection were

  insufficient to provide the trial court with a meaningful opportunity

  to determine whether the I-9000 certificate was testimonial and

  subject to the Confrontation Clause or whether section 42-4-1303

  was unconstitutional, either facially or as applied. Therefore, we

  conclude that Mr. Ambrose did not preserve the Confrontation

  Clause issue as framed in the opening brief, and we review for plain

  error.




                                     38
                           C.    Applicable Law

¶ 72   “The Sixth Amendment of the United States Constitution

  affords to the accused the right ‘to be confronted with the witnesses

  against him.’” Marshall v. People, 2013 CO 51, ¶ 15 (quoting U.S.

  Const. amend. VI); see Colo. Const. art. II, § 16 (“In criminal

  prosecutions the accused shall have the right . . . to meet the

  witnesses against him face to face . . . .”). When evaluating a

  potential Confrontation Clause violation, we must first determine

  whether the statement at issue was testimonial. See Crawford v.

  Washington, 541 U.S. 36, 68-69 (2004). Admission of a testimonial

  hearsay statement against the defendant violates the Confrontation

  Clause unless the declarant is unavailable and the defendant had

  an opportunity to cross-examine the declarant. Id.

¶ 73   “[A]t a minimum, statements are testimonial if the declarant

  made them at a ‘preliminary hearing, before a grand jury, or at a

  former trial; and [in] police interrogations.’” People v. Vigil, 127 P.3d

  916, 921 (Colo. 2006) (citation omitted). Three formulations of

  statements qualify as testimonial in nature: (1) “ex parte in-court

  testimony or its functional equivalent,” such as “affidavits, custodial

  examinations, prior testimony that the defendant was unable to


                                     39
  cross-examine, or similar pretrial statements that declarants would

  reasonably expect to be used prosecutorially”; (2) “extrajudicial

  statements . . . contained in formalized testimonial materials, such

  as affidavits, depositions, prior testimony or confessions”; and (3)

  “statements that were made under circumstances which would lead

  an objective witness reasonably to believe that the statement would

  be available for use at a later trial.” Id. (quoting Crawford, 541 U.S.

  at 51-52).

¶ 74   In Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the

  United States Supreme Court held that laboratory certificates

  reporting the results of forensic analyses performed on substances

  are functionally equivalent to affidavits. The Court determined that

  the affidavits are “testimonial,” and therefore implicate a

  defendant’s Sixth Amendment right to confront witnesses against

  him, because they are made for the purpose of establishing some

  material fact at the defendant’s trial and under circumstances that

  would lead a reasonably objective witness to believe that the

  statements contained therein would be available for use at a later

  trial. Id. at 310-11.




                                    40
¶ 75   Even before Melendez-Diaz, our supreme court held that

  laboratory reports are testimonial and subject to the Confrontation

  Clause. Hinojos-Mendoza v. People, 169 P.3d 662, 666 (Colo. 2007),

  abrogated on other grounds by Phillips, ¶¶ 32-33. The court rejected

  the rationale that a lab report qualifies as a business record and

  that the practice of weighing an undisputed substance “merely . . .

  authenticated the document.” Id. (citation omitted). Instead, the

  court held that the lab report was testimonial for two reasons.

  First, the “report was prepared at the direction of the police and a

  copy of the report was transmitted to the district attorney’s office”;

  thus, the court reasoned, there could be no serious dispute that the

  report’s sole purpose was to analyze the substance found in

  anticipation of a criminal prosecution. Id. at 667. Second, the

  report admitted at trial established an element of the offense with

  which the defendant was charged. Id. The court reaffirmed this

  position a few years later. See Marshall, ¶ 15 (“The People appear to

  concede, and we agree, that the [lab] report in this case was

  testimonial in nature.” (first citing Bullcoming v. New Mexico, 564

  U.S. 647, 664-65 (2011); then citing Hinojos-Mendoza, 169 P.3d at

  667)).


                                    41
¶ 76   However, neither our supreme court nor the United States

  Supreme Court has decided whether a certificate used to establish

  that an intoxilyzer machine complies with state rules and

  regulations is testimonial and subject to the Confrontation Clause.

  But all of the state courts that have considered this issue have

  concluded that such certificates are not testimonial and do not

  implicate the Confrontation Clause. We hold that the I-9000

  certificate here is not testimonial and reject Mr. Ambrose’s facial

  and as-applied challenges to section 42-4-1303.

                              D.   Analysis

¶ 77   The I-9000 certificate differs from the document at issue in

  Melendez-Diaz in three ways. First, the document in Melendez-Diaz

  contained forensic analysis results used to prove the identity of the

  illicit substance (an element of the crime) and was sworn before a

  notary public by the reporting analyst. See 557 U.S. at 308-09. In

  contrast, the I-9000 certificate contains no testing results, but

  simply certifies that the I-9000 machine complies with CDPHE-

  approved methods (not an element of a crime) to measure a

  person’s BAC. See Commonwealth v. Zeininger, 947 N.E.2d 1060,

  1069 (Mass. 2011) (distinguishing certificates of drug analysis


                                    42
  offered as direct proof of an element of the offense charged from

  Office of Alcohol Testing certification records, which “bear only on

  the admissibility or credibility of the evidence”); People v. Pealer,

  985 N.E.2d 903, 907 (N.Y. 2013) (affirming breathalyzer testing

  certificates are not testimonial in part because they “do not directly

  inculpate defendant or prove an essential element of the charges

  against him”). Moreover, the I-9000 certificate did not include a

  sworn statement.

¶ 78   Second, unlike the document in Melendez-Diaz, the I-9000

  certificate is not prepared in anticipation of a particular

  prosecution. See State v. Bergin, 217 P.3d 1087, 1089 (Or. Ct. App.

  2009) (“[T]he person who performs the test of a machine’s accuracy

  does so with no particular prosecutorial use in mind, and, indeed,

  there is no guarantee that the machine will ever, in fact, be used.”).

  Instead, the certificate — which the I-9000 prints

  contemporaneously with the breath test result — contains only the

  machine’s serial number, the date range of the certificate’s validity,

  and CDPHE’s seal, consistent with the statutory and regulatory

  requirements. See § 42-4-1304(4), C.R.S. 2019 (requiring the state

  board of health to promulgate rules and procedures for the


                                     43
  collection and testing of blood and breath samples for alcohol and

  drugs). The fact that the certificate is printed contemporaneously

  with the test result does not mean that it is prepared for a specific

  prosecution. See Zeininger, 947 N.E.2d at 1065 (explaining that the

  notation of certification at issue appeared “on the same report as

  the results of the breathalyzer test”).

¶ 79   Finally, rather than proving the material fact of a person’s

  BAC, the I-9000 certificate proves only that the device used to

  measure a person’s BAC complies with state regulations. Dep’t of

  Pub. Health & Env’t Reg. 4.1.3.2, 5 Code Colo. Regs. 1005-2

  (requiring that CDPHE “certify each Evidential Breath Alcohol Test

  instrument initially and annually thereafter”); Dep’t of Pub. Health

  & Env’t Reg. 4.1.3.3, 5 Code Colo. Regs. 1005-2 (providing that

  CDPHE will issue a certificate for each instrument after initial

  certification and after each annual certification, with each

  certificate reflecting the instrument serial number and the dates of

  the certification period). Indeed, the I-9000 certificate in this case

  did not mention Mr. Ambrose or his BAC result. See also

  Commonwealth v. Dyarman, 73 A.3d 565, 569 (Pa. 2013)

  (distinguishing calibration and accuracy certificates for breath test


                                     44
  machines from the certificates in Melendez-Diaz because “the

  certificates at issue here did not provide any information regarding

  appellant’s BAC or even refer to her”).

¶ 80   We are not persuaded that the certificate, which showed the

  I-9000 was working properly, was testimonial simply because the

  breath test result, contained in a separate document, permitted the

  jury to infer that Mr. Ambrose was impaired. See § 42-4-

  1301(6)(a)(II); see also People v. Hamilton, 2019 COA 101, ¶¶ 24-26

  (time stamps and similar information that a machine generates

  without human intervention are not “statements” and, thus, are not

  hearsay); Cranston v. State, 936 N.E.2d 342, 345 (Ind. Ct. App.

  2010) (an evidence ticket produced by a chemical breath machine is

  not testimonial hearsay for purposes of the Sixth Amendment). The

  I-9000 certificate merely constitutes prima facie evidence that the I-

  9000 used to test Mr. Ambrose’s breath complied with CDPHE

  regulations. See People v. Ortega, 2016 COA 148, ¶ 11 (attestation

  used merely to authenticate phone records was not testimonial and

  thus not subject to the Confrontation Clause).

¶ 81   And we agree with the decisions of other state courts that have

  found similar certificates nontestimonial because they “bear a more


                                    45
  attenuated relationship to conviction.” Bergin, 217 P.3d at 1089;

  see also State v. Kramer, 278 P.3d 431, 437 (Idaho Ct. App. 2012)

  (Intoxilyzer 5000 certificates “were not direct proof of an element of

  the crime of driving under the influence,” but were “instead

  admitted as proof that the testing instrument was working

  properly”); Dyarman, 73 A.3d at 570 (calibration and accuracy

  certificates do not establish an element of an offense, but instead

  concern “the weight to be accorded to the test results”).

¶ 82      Further, our conclusion is consistent with dictum in Melendez-

  Diaz:

               Contrary to the dissent’s suggestion, we do not
               hold, and it is not the case, that anyone whose
               testimony may be relevant in establishing the
               chain of custody, authenticity of the sample, or
               accuracy of the testing device, must appear in
               person as part of the prosecution’s case. . . .
               Additionally, documents prepared in the regular
               course of equipment maintenance may well
               qualify as nontestimonial records.

  557 U.S. at 311 n.1 (emphasis added) (citation omitted).

¶ 83      Indeed, Mr. Ambrose has not cited, nor have we found, any

  case from any jurisdiction holding that certificates similar to the

  I-9000 working order certificate are testimonial and subject to the

  Confrontation Clause. See Smith v. State, 791 S.E.2d 418, 422 (Ga.


                                     46
  Ct. App. 2016) (“inspection certificates are not testimonial in

  nature”); Jones v. State, 982 N.E.2d 417, 428 (Ind. Ct. App. 2013)

  (reaffirming prior precedents and concluding such certificates are

  “nontestimonial”); State v. Benson, 287 P.3d 927, 932 (Kan. 2012)

  (holding “that [a] certificate of calibration is not a testimonial

  statement”); State v. Britt, 813 N.W.2d 434, 437 (Neb. 2012)

  (affirming that certificate by analyst who prepared breath test

  simulator solution used to test the device was not testimonial and

  therefore not subject to confrontation analysis); State v. Dial, 998

  N.E.2d 821, 827 (Ohio Ct. App. 2013) (a certificate of a breath test

  machine using a new bottle of ethyl alcohol was not testimonial);

  Anderson v. State, 317 P.3d 1108, 1122 (Wyo. 2014) (annual

  certification of breathalyzer machines is not testimonial for

  purposes of the Confrontation Clause).

¶ 84   We are also not persuaded that Barry requires a different

  result, for three reasons. In Barry, ¶ 67, the emergency medical

  technician (EMT) who drew the defendant’s blood for a blood alcohol

  test signed a certificate stating that she drew the blood by

  venipuncture and that she was an EMT. Colorado law authorizes

  EMTs to draw a person’s blood for criminal investigations in


                                     47
  accordance with Colorado State Board of Health rules and

  regulations, and these rules require that the EMT collect the blood

  using venipuncture. Id. at ¶ 76. The EMT did not testify at trial,

  and a division of this court concluded that the EMT’s certificate

  constituted a hearsay testimonial statement. Id. at ¶ 79.

¶ 85     First, unlike the EMT in Barry, Deputy Dilka, the person who

  collected the sample and tested it, testified at trial and was

  available for cross-examination both as to his procedures and as to

  the functioning of the equipment he used. Second, and in contrast

  to Barry, the I-9000 certificate validated the machine’s proper

  functioning for a range of dates — not just for the prosecution of

  Mr. Ambrose’s case. See id. at ¶ 67 (EMT’s certificate was prepared

  specifically for the prosecution of the defendant); see also Ramirez

  v. State, 928 N.E.2d 214, 219-20 (Ind. Ct. App. 2010) (a certificate

  of inspection and compliance for a machine used in a chemical

  breath test was “not prepared for a particular prosecution of any

  one defendant”); Bergin, 217 P.3d at 1089. As well, the EMT’s

  certificate was not merely a document “prepared in the regular

  course of equipment maintenance.” Melendez-Diaz, 557 U.S. at 311

  n.1.


                                    48
¶ 86   And third, the I-9000 certificate is an official record that

  CDPHE is statutorily required to maintain. Section 42-4-1304(4)(a)

  empowers and requires CDPHE to establish rules and procedures

  for certifying the collection and testing of blood and breath samples

  for alcohol and drugs, and those rules require that CDPHE annually

  certify instruments like the I-9000. Dep’t of Pub. Health & Env’t

  Reg. 4.1.3.2, 5 Code Colo. Regs. 1005-2. There are no similar

  statutory or regulatory requirements for an EMT to certify how he or

  she drew blood.

¶ 87   We are also not persuaded that Bullcoming requires a different

  result. In Bullcoming, an analyst who did not perform the

  defendant’s blood alcohol test testified about the results another

  analyst had obtained. 564 U.S. at 659-60. The United States

  Supreme Court held that such testimony violated the defendant’s

  confrontation right. Id. at 657-58. We find Bullcoming

  distinguishable for two reasons. First, as explained above, the

  I-9000 certificate is not testimonial. It does not prove a defendant’s

  BAC or any other material fact, but, instead, establishes that the

  machine operates properly and complies with regulatory

  requirements. Second, the individual responsible for using the


                                    49
  device and taking measurements, Deputy Dilka, testified at trial

  and, therefore, was available for cross-examination.

¶ 88   Finally, even if we were to find that an error occurred, we

  conclude that it would not constitute plain error given the plethora

  of case law from other jurisdictions finding similar certificates not

  testimonial. See People v. Pollard, 2013 COA 31M, ¶ 41 (the

  uniformity with which numerous other courts have embraced a rule

  even in the absence of Colorado case law squarely on point is

  relevant to plain error analysis).

¶ 89   Accordingly, we hold that the I-9000 certificate is not

  testimonial and that its admission did not implicate Mr. Ambrose’s

  right to confront witnesses. We also conclude that section 42-4-

  1303 does not, facially or as applied, violate the Confrontation

  Clause.

                IX.   Persistent Drunk Driver Surcharge

¶ 90   Mr. Ambrose last contends that the trial court violated his

  right to be free from double jeopardy by imposing the persistent

  drunk driver surcharge on the mittimus without first announcing it

  in open court at the sentencing hearing. We disagree.




                                       50
                 A.   Standard of Review and Relevant Law

¶ 91      We review de novo whether the court violated Mr. Ambrose’s

  rights against double jeopardy. People v. Cattaneo, 2020 COA 40,

  ¶ 41.

¶ 92      The Double Jeopardy Clauses of the United States and

  Colorado Constitutions protect a defendant from being punished

  twice for the same offense. U.S. Const. amends. V, XIV; Colo.

  Const. art. II, § 18. We must determine whether the initial sentence

  imposed in open court, which omitted the persistent drunk driver

  surcharge, was lawful. See Yeadon v. People, 2020 CO 38, ¶ 8

  (addressing whether the imposition of a similar drug offender

  surcharge violates double jeopardy). If the original sentence was

  illegal, it may be corrected at any time without violating double

  jeopardy — even if the correction increases the sentence — because

  a defendant has no legitimate expectation of finality in an illegal

  sentence. See id.; Cattaneo, ¶ 42.

¶ 93      “We review the legality of a sentence de novo.” Cattaneo, ¶ 43.

  “Sentences that are inconsistent with the statutory scheme outlined

  by the legislature are illegal.” Id. (quoting People v. Rockwell, 125

  P.3d 410, 414 (Colo. 2005)).


                                      51
                              B.   Analysis

¶ 94   Mr. Ambrose was convicted of felony DWAI with three or more

  prior offenses, pursuant to section 42-4-1301(1)(b). This subjected

  him to incarceration, parole, and a persistent drunk driver

  surcharge. See § 18-1.3-401(1)(a)(V), C.R.S. 2019; § 42-4-

  1307(6.5), (10)(b), C.R.S. 2019. The court imposed the persistent

  drunk driver surcharge under section 42-4-1307(10)(b), which

  provides in relevant part that

            [p]ersons convicted of DUI, DUI per se, and
            DWAI are subject to a surcharge of at least one
            hundred dollars but no more than five
            hundred dollars to fund programs to reduce
            the number of persistent drunk drivers. The
            surcharge shall be mandatory, and the court
            shall not have discretion to suspend or waive
            the surcharge; except that the court may
            suspend or waive the surcharge if the court
            determines that a person is indigent.

  (Emphasis added.)

¶ 95   Relying on the language that empowers the court to “suspend

  or waive the surcharge if the court determines that a person is

  indigent,” Mr. Ambrose reasons that the surcharge is punishment

  because it is not mandatory in all cases. Consequently, he argues

  that the Double Jeopardy Clause precluded the court from entering



                                   52
  the surcharge on the mittimus after sentencing. We reject this

  argument. See Yeadon, ¶ 14; Waddell v. People, 2020 CO 39, ¶ 19;

  see also People v. Smith, 183 P.3d 726, 729 (Colo. App. 2008)

  (“Colorado Supreme Court decisions are binding on the Colorado

  Court of Appeals.” (citing People v. Close, 22 P.3d 933, 936 (Colo.

  App. 2000))).

¶ 96   After laying out the surcharge’s parameters, the statute

  subsequently says that the court “may suspend or waive the

  surcharge if the court determines that a person is indigent.” § 42-

  4-1307(10)(b). As in Cattaneo, reading the statute as a whole and

  giving sensible effect to all of its parts, we conclude that the trial

  court had the authority to suspend or waive the surcharge only if it

  determined that the defendant was indigent. See Cattaneo, ¶ 48

  (concluding that the authority to reduce or eliminate the drug

  offender surcharge exists “only to the extent the offender is unable

  to pay it”). The statute does not authorize a court to otherwise omit

  the surcharge without making such a finding. See id.

¶ 97   Mr. Ambrose did not argue at sentencing, nor did the court

  find, that he was indigent. Consequently, his original sentence

  without the surcharge was contrary to section 42-4-1307(10)(b) and


                                     53
  was, therefore, illegal. See Cattaneo, ¶ 49. The trial court could

  correct Mr. Ambrose’s illegal sentence, without violating his rights

  against double jeopardy, at any time under Crim. P. 35(a). See

  Yeadon, ¶ 15.

¶ 98   Therefore, we conclude there was no double jeopardy violation

  and affirm the court’s imposition of the persistent drunk driver

  surcharge.

                            X.     Conclusion

¶ 99   The judgment is affirmed.

       JUDGE LIPINSKY concurs.

       JUDGE TERRY concurs in part and dissents in part.




                                    54
        JUDGE TERRY, concurring in part and dissenting in part.

¶ 100   I concur in all parts of the majority’s opinion except for Part

  IV, in which the majority concludes that prior convictions are not

  an element of the felony offense that must be proved to a jury

  beyond a reasonable doubt, and except for its ultimate affirmance of

  the felony DWAI conviction.

¶ 101   The majority’s opinion relies on People v. Gwinn, 2018 COA

  130, in which I concurred. But appellate judges are free to change

  our minds on arguable issues of law, and I did so later, when I

  joined the opinion in People v. Viburg, 2020 COA 8M. In deciding to

  concur in that opinion, I was persuaded by the Viburg division’s

  reasoning, as well as by now-Chief Judge Bernard’s partial dissent

  in People v. Schreiber, 226 P.3d 1221, 1225-27 (Colo. App. 2009)

  (Bernard, J., concurring in part and dissenting in part). I still

  believe that Viburg came to the right conclusion on this very

  difficult legal issue.

¶ 102   As the majority notes, the question presented in this case is

  now before the supreme court in Linnebur v. People, (Colo. No.

  18SC884, Aug. 19, 2019) (unpublished order). Colorado’s courts

  will benefit from further guidance on this issue.


                                     55
¶ 103   In the meanwhile, I would reverse Ambrose’s felony DWAI

  conviction and remand for a jury trial on that charge.




                                   56
