     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
                                                            January 10, 2019

                                 2019COA2

No. 17CA0772, People v. Fuerst — Regulation of Vehicles and
Traffic — Alcohol and Drug Offenses — Expressed Consent for
the Taking of Blood, Breath, Urine, or Saliva

     In this criminal case, a division of the court of appeals is

asked to decide whether a police officer is authorized to request that

a suspect take a drug test under section 42-4-1301.1(2)(b)(I), C.R.S.

2018, of the Expressed Consent Statute if the officer has already

requested, and the suspect has completed, an alcohol test under

subsection 1301.1(2)(a)(I). The division answers this question

affirmatively.
COLORADO COURT OF APPEALS                                            2019COA2


Court of Appeals No. 17CA0772
Mesa County District Court No. 16CR706
Honorable Brian J. Flynn, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kim Maurice Fuerst,

Defendant-Appellant.


                            JUDGMENT AFFIRMED

                                  Division IV
                       Opinion by JUDGE HAWTHORNE
                        Tow and Márquez*, JJ., concur

                         Announced January 10, 2019


Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Emilyn Winkelmeyer, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2018.
¶1    Defendant, Kim Maurice Fuerst, appeals his conviction for

 driving while ability impaired (DWAI). We affirm.

                             I. Background

¶2    Defendant backed his car into a pickup truck. When a police

 officer arrived on the scene, a bystander told the officer that, after

 the accident, defendant had asked her if she wanted his beer

 because he needed to hide it.

¶3    Defendant agreed to perform several roadside sobriety tests.

 The horizontal gaze nystagmus test indicated that he was under the

 influence of a central nervous system depressant (CNS depressant).

 Alcohol is a CNS depressant. Defendant also performed poorly on

 the walk-and-turn and one-leg stand tests and had difficulty

 following the officer’s instructions. Based on defendant’s

 performance on these tests and his previous statement to the

 bystander about the beer, the officer believed defendant was under

 the influence of alcohol.

¶4    The officer arrested defendant and gave him the option of

 taking either a breath or blood test under section

 42-4-1301.1(2)(a)(I), C.R.S. 2018, a provision in Colorado’s

 Expressed Consent Statute. Defendant chose a breath test. The


                                    1
 breath test results showed that defendant’s blood alcohol content

 was zero.

¶5    The officer then concluded that “it had to be drugs” and asked

 defendant to take a blood test under section 42-4-1301.1(2)(b)(I).

 Defendant initially refused and asked to speak to the officer’s

 supervisor. The supervising officer told defendant that if he didn’t

 take the blood test, his driver’s license would be revoked.

 Defendant then agreed to take the blood test.

¶6    The blood test revealed 101 nanograms of Alprazolam (Xanax)

 per milliliter, which is near the upper limit of the therapeutic range

 for that drug (25 to 102 nanograms per milliliter). Alprazolam is

 also a CNS depressant.

¶7    Before trial, defendant moved to suppress the blood test

 results. After hearing evidence and argument, the trial court denied

 the motion.

¶8    At trial, the jury found defendant not guilty of driving under

 the influence (DUI) but found him guilty of DWAI and unsafe

 backing.




                                    2
     II. The Trial Court Didn’t Err in Denying the Motion to Suppress the
                              Blood Test Results

¶9       Defendant contends that the trial court erred in denying his

  motion because the officer’s requiring him to complete the blood

  test — after he had already selected and completed the breath

  test — wasn’t authorized by the Expressed Consent Statute and

  violated his constitutional rights. We disagree.

                   A. Defendant Preserved His Argument

¶ 10     In defendant’s written motion to suppress, he argued only that

  the officer didn’t have probable cause to request that he take the

  blood test. But, at the evidentiary hearing on the motion, during

  closing argument, the trial court specifically asked the prosecutor,

  “[T]ell me your position on the law if someone agrees to take a

  breath test and then can law enforcement ask them for a second

  test . . . ?” The prosecutor answered that he wasn’t aware of

  anything in the law that would prohibit the second test. Then,

  during his closing, defendant argued, among other things, that the

  officer couldn’t invoke the Expressed Consent Statute a second time

  after he had already selected and completed the breath test.




                                      3
¶ 11   Under these circumstances, we conclude that defendant

  preserved his contention for appeal.

                         B. Standard of Review

¶ 12   Review of a trial court’s suppression order presents a mixed

  factual and legal question. People v. Hyde, 2017 CO 24, ¶ 9. We

  defer to the trial court’s factual findings that have record support,

  but we assess those facts’ legal effect de novo. Id. And we also

  review de novo the court’s interpretation of the Expressed Consent

  Statute. See Fitzgerald v. People, 2017 CO 26, ¶ 8.

                               C. Analysis

¶ 13   Defendant argues that the Expressed Consent Statute doesn’t

  authorize an officer to request a drug test under subsection

  1301.1(2)(b)(I) if the officer has already requested, and the suspect

  has completed, an alcohol test under subsection 1301.1(2)(a)(I). We

  disagree.

¶ 14   Subsection 1301.1(2)(a)(I) authorizes a breath or blood test if

  an officer has probable cause to believe a driver is under the

  influence of alcohol. Subsection 1301.1(2)(b)(I) authorizes a blood,

  saliva, or urine sample if an officer has probable cause to believe a

  driver is under the influence of drugs and requiring the test is


                                     4
  reasonable. The statute doesn’t say an officer can only do one or

  the other. In fact, nothing in the statutory language ties together

  subsections 1301.1(2)(a)(I) and (2)(b)(I), other than that the two

  provisions are in the same statute. And we disagree with

  defendant’s argument that because there’s no express statutory

  provision allowing an officer to do both, an officer can’t do both. We

  conclude that if the General Assembly had intended to prohibit

  what the officer did in this case, it would have included language in

  the Expressed Consent Statute specifying that an officer can

  proceed under subsection 1301.1(2)(a)(I) or (2)(b)(I), but not both. To

  adopt defendant’s interpretation would require us to add words to

  the statute, and “[w]e do not add words to the statute or subtract

  words from it.” People v. Diaz, 2015 CO 28, ¶ 12 (quoting Turbyne

  v. People, 151 P.3d 563, 567 (Colo. 2007)).

¶ 15   This case’s facts are strikingly similar to those in Halter v.

  Department of Revenue, 857 P.2d 535 (Colo. App. 1993). There, the

  officer had probable cause to believe the plaintiff was impaired by

  alcohol because of, among other things, his poor performance on

  roadside sobriety tests. Id. at 536, 538. The officer gave the

  plaintiff the option of performing a breath or blood test under


                                     5
  subsection 1301.1(2)(a)(I), and the plaintiff chose a breath test. Id.

  at 536. The breath test was negative for the presence of alcohol.

  Id. The arresting officer ultimately testified that “because the

  alcohol came back zero” and he still felt that the plaintiff “was

  impaired,” he thought at that point that the plaintiff “was under

  drugs” because “that could be the only other answer.” Id. Another

  officer then requested that the plaintiff provide a urine sample to

  test for drugs. Id. Over the next several hours, the plaintiff didn’t

  provide a urine sample and his driver’s license was revoked. Id. at

  536-37.

¶ 16   Although the plaintiff in Halter didn’t make the same statutory

  argument that defendant does in this case, the Halter division

  analyzed the Expressed Consent Statute and concluded that if an

  officer has probable cause to believe that a driver is under the

  influence of alcohol or drugs, the officer may request, and the driver

  is obligated to complete, “either the applicable alcohol tests or the

  applicable drug tests or both.” Id. at 538 (emphasis added).

  Notably, in this case, the People relied on Halter in their answer

  brief but defendant didn’t address the case in his reply brief.




                                     6
¶ 17   Instead, defendant argues that under Turbyne, 151 P.3d 563,

  and section 42-4-1301.1(2)(a.5)(I), the officer couldn’t “change” the

  type of test that defendant had originally requested. We conclude

  that Turbyne and section 42-4-1301.1(2)(a.5)(I) don’t apply here.

¶ 18   In Turbyne, the officer requested that the defendant submit to

  a breath or blood test under subsection 1301.1(2)(a)(I), and the

  defendant chose a blood test. Turbyne, 151 P.3d at 565. But,

  because the officer faced difficulty in getting the blood test

  completed, he required the defendant to submit to a breath test. Id.

  at 565-66. Under the version of the Expressed Consent Statute in

  effect at that time, the supreme court held that the officer couldn’t

  change the type of test that defendant had selected under

  subsection 1301.1(2)(a)(I). See id. at 567-72. Soon after the

  Turbyne decision, the General Assembly amended the Expressed

  Consent Statute by adding section 42-4-1301.1(2)(a.5)(I), providing

  that an officer isn’t bound by the driver’s choice between a breath

  or blood test under subsection 1301.1(2)(a)(I) if “extraordinary

  circumstances” prevent completing the selected test. See People v.

  Null, 233 P.3d 670, 678 (Colo. 2010) (discussing the statutory

  amendment).


                                     7
¶ 19   Unlike in Turbyne, where the defendant wasn’t allowed to take

  the type of test he had selected under subsection 1301.1(2)(a)(I),

  defendant chose a breath test and the officer complied by giving

  him that test. After completing that procedure, the officer had

  probable cause to believe defendant was under the influence of

  drugs, and subsection 1301.1(2)(b)(I) authorized the officer to

  request a blood test.

¶ 20   Defendant doesn’t present any independent argument that

  conducting the blood test violated his constitutional rights.

  Instead, he argues, “[T]he issue here is whether that procedure

  [employed by the officer] was lawful under the statute. Because it

  was not, the blood draw was unconstitutional and the results

  should have been suppressed.” We conclude that the procedure

  employed by the officer didn’t violate the Expressed Consent

  Statute. Because defendant’s statutory claim fails, his

  constitutional claim necessarily fails.

   III. The Trial Court Properly Admitted the Blood Test Results at Trial

¶ 21   Defendant also contends that the trial court violated his

  confrontation rights and section 16-3-309(5), C.R.S. 2018, by

  admitting a laboratory report containing his blood test results. He


                                     8
  argues that the witness who testified about the laboratory report

  and the blood test results wasn’t sufficiently involved in the process

  of testing the blood sample and certifying the results. Again, we

  disagree.

                           A. Further Background

¶ 22   The court admitted the laboratory report based on the

  testimony of a forensic toxicologist for the Colorado Bureau of

  Investigation (CBI toxicologist), who was qualified as an expert in

  forensic science and forensic toxicology.

¶ 23   During initial questioning, the CBI toxicologist testified that he

  believed he had done at least some of the original testing on

  defendant’s blood sample, but he couldn’t confirm that. The

  prosecutor then offered the laboratory report, but the trial court

  concluded that the prosecutor hadn’t laid a sufficient foundation.

¶ 24   Through further questioning, the CBI toxicologist said that he

  had created and signed the laboratory report, and explained the

  process for doing so:

                    [W]hen I will begin to write a report, [the]
              person whose name goes on the report will
              take in all of the information. They will review
              it themselves.



                                      9
                   They’ll go through each of the raw data.
            They’ll make sure that all quality control
            passes CBI’s acceptable criteria.
                   I will look at the raw data for the case,
            itself. Make sure that that matches with
            what’s in our electronic database.
                   I will go through this entire process, write
            the report. And when I write the report, it will,
            then, go through a technical review process,
            where another forensic scientist will come
            through and make sure everything I did on the
            report is correct.
                   And then, after that technical review
            process, it will go through an administrative
            review process, where a CBI Supervisor or
            Manager will go through and make sure
            everything is grammatically correct, and that
            what’s on the Request for Laboratory
            Examination was actually done for the case.

  The prosecutor followed up by asking, “Does that mean that you

  performed the screening, or that you reviewed the screening, in its

  entirety, for accuracy? Or, or could it be both?” The CBI

  toxicologist responded, “It actually could be both.”

¶ 25   Following argument, the trial court concluded that the

  prosecutor had laid a sufficient foundation, admitted the laboratory

  report into evidence, and allowed the CBI toxicologist to testify

  about the blood test results.




                                    10
                         B. Standard of Review

¶ 26   We review defendant’s claims de novo. See Nicholls v. People,

  2017 CO 71, ¶ 17 (“Confrontation claims are reviewed de novo.”);

  People v. Hill, 228 P.3d 171, 173 (Colo. App. 2009) (reviewing de

  novo whether evidence was admissible under section 16-3-309(5)).

                               C. Analysis

                        1. Right to Confrontation

¶ 27   The parties disagree about whether the circumstances in this

  case are more like those in Bullcoming v. New Mexico, 564 U.S. 647

  (2011), or those in Marshall v. People, 2013 CO 51. We agree with

  the People that the CBI toxicologist’s role in completing and signing

  the laboratory report is much more similar to the circumstances in

  Marshall than those in Bullcoming.

¶ 28   In Bullcoming, the Supreme Court held that a witness

  shouldn’t have been allowed to testify about the results in a

  laboratory report because the witness hadn’t signed the report

  certification and hadn’t performed or observed the forensic testing

  on the blood sample. 564 U.S. at 651-63. Instead, the analyst was

  familiar only with the laboratory’s testing procedures generally. Id.

  at 651. The Court described the analyst’s testimony as “surrogate


                                    11
  testimony,” and held that the defendant had the right to confront

  the analyst who had actually completed and signed the report

  certification. Id. at 652.

¶ 29   In Marshall, the Colorado Supreme Court held that a witness

  was properly allowed to testify about the results in a laboratory

  report. 2013 CO 51, ¶ 1. The witness, a supervisor at the

  laboratory, hadn’t done any of the original testing on the urine

  sample. Still, the court held that the supervisor was qualified to

  testify about the results in the report because she had

  (1) supervised the testing process; (2) reviewed all the data

  generated by the test; (3) found that the data accurately determined

  that the defendant had methamphetamine present in her urine; and

  (4) certified the test results. Id. at ¶ 2. The court explained that

  those circumstances didn’t present the type of “‘surrogate’

  testimony” found to be problematic in Bullcoming. Id.; see also

  People v. Medrano-Bustamante, 2013 COA 139, ¶¶ 19-25 (a case

  similar to Marshall in which a division of this court held that the

  admission of a laboratory report didn’t violate the defendant’s right

  to confrontation), rev’d in part on other grounds sub nom.

  Reyna-Abarca v. People, 2017 CO 15.


                                    12
¶ 30   Although the prosecutor could have elicited more specific

  details about each step of the CBI toxicologist’s review process, the

  CBI toxicologist specified that he personally reviewed all the

  information — including the raw data generated by the testing on

  the blood sample — and proceeded through the CBI’s quality

  control process, which included several levels of review. He then

  certified the results of that process by signing the laboratory report.

  As in Marshall, these circumstances didn’t present the type of

  “surrogate testimony” found to be problematic in Bullcoming.

¶ 31   Defendant emphasizes that the CBI toxicologist couldn’t

  confirm at trial that he had performed the original testing on

  defendant’s blood sample. But, in Marshall, even though the

  supervisor hadn’t completed the original testing on the urine

  sample, she was still qualified to testify about the results certified in

  the report.

¶ 32   We are also not persuaded by defendant’s argument that the

  CBI toxicologist’s testimony was phrased in terms of the process he

  generally employed in completing and signing laboratory reports

  like the one at issue. We deem it sufficient that he specified that by




                                     13
  signing the laboratory report, he employed the standard,

  regimented process in completing the laboratory report.

¶ 33   We also find it immaterial that the CBI toxicologist didn’t hold

  a formal supervisory position at the CBI’s laboratory. The

  important information is that he led the process of reviewing the

  test results, employed the CBI’s quality control process, and

  certified the results by signing the laboratory report.

                          2. Section 16-3-309(5)

¶ 34   Section 16-3-309(5) requires that a criminalistics laboratory

  report be admitted through the testimony of the employee or

  technician “who accomplished” the analysis in the report.

¶ 35   In Marshall, the supreme court held that the supervisor’s

  process of reviewing the testing and completing and certifying the

  laboratory report fell within the meaning of “accomplish[ing]” the

  analysis under section 16-3-309(5). See Marshall, ¶¶ 20-23. The

  court again emphasized that the supervisor didn’t need to have

  conducted the original testing. Id. at ¶ 22; see also

  Medrano-Bustamante, ¶¶ 26-28 (holding, in a case similar to

  Marshall, that the admission of a laboratory report didn’t violate

  section 16-3-309(5)).


                                    14
¶ 36   Again, Marshall isn’t meaningfully distinguishable. The CBI

  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 section 16-3-309(5).

                             IV. Conclusion

¶ 37   The judgment is affirmed.

       JUDGE TOW and JUDGE MÁRQUEZ concur.




                                    15
