A person facing a drunk driving charge does not have the constitutional right to challenge the certificate of functionality that a breathalyzer device issues when taking measurements, the Colorado Court of Appeals ruled on Thursday.

The defendant “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,” wrote Judge Rebecca R. Freyre for the three-member panel.

Deputy Corey Dilka pulled over a vehicle with an inoperative tail light and noticed that the driver, William Edward Ambrose, had glassy eyes and smelled like alcohol. Ambrose consented to a sobriety check and a breath test, which revealed his blood alcohol content was 0.063.

Prosecutors charged him with driving while ability impaired and a jury for the Rio Blanco County District Court subsequently convicted him. Because Ambrose had prior convictions for driving under the influence of alcohol, the court elevated his charge to a felony and sentenced him to three years in community corrections.

Before the trial, Ambrose had asked the court to determine the reliability of the Intoxilyzer 9000 used in his breath test. In addition to giving a BAC readout and the machine’s serial number, the I-9000 issues a document certifying that it is working properly during a certain time period. 

A New York Times investigation in 2019 found that courts had thrown out tens of thousands of BAC tests due to improper calibration, use of stale chemical solutions, or – in one instance – rats nesting inside a machine. The Times provided a Gilpin County District Court order from 2017 rejecting an I-9000 functionality certificate because the signature on the document came from a state health department employee who had left her job prior to the device’s approval. The judge found the health department knew about the incorrect signature, which was “not present for the sake of appearance” alone.

In Ambrose’s case, Judge Anne K. Norrdin found the Gilpin court’s order was “interesting and instructive,” but “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.”

She added that Ambrose could present other evidence, but the I-9000 in his case was in compliance with the Colorado Department of Public Health and Environment’s regulations.

The Court of Appeals acknowledged that expert testimony must undergo an analysis for its reliability and the witness’s qualifications – preventing “junk” science from influencing a verdict. The panel found no problems with the machine itself or the deputy’s testimony.

The certification from the machine lacked a signature required by state law, which the defense argued made the test results inadmissible. Without discussing the legality of the signature, Freyre wrote that “any such deficiency goes to the weight of the evidence and not its admissibility.” The panel went on to conclude that the certificate from the I-9000 did not constitute testimony and was not subject to Ambrose’s Sixth Amendment right to confront the witnesses against him. 

Charles L. Fife, a managing partner at Fife Luneau, P.C., whose firm was involved with the Gilpin County I-9000 case, called the court’s decision “intellectual gymnastics in order to get breath tests into evidence cheap and easily.”

He said the purpose of the certificate was to avoid the need for prosecutors to call technicians in for every case to attest to the devices’ functionality. “It shifts the burden of proof, because the only thing the prosecution has to do is bring in this document that has the state seal on it – that is not attested to, as required by statute,” he added.

A 2009 U.S. Supreme Court decision deemed that laboratory test results are testimonial, meaning they establish material facts about the trial and defendants therefore have a right to confront the preparers of such reports.

Freyre pointed out, though, that “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.” The appellate opinion also explained the certificates did not contain information about the impairment and were not prepared as scientific trial evidence – plus, no other court had taken Ambrose’s side on the issue.

Karen Steinhauser, a former prosecutor-turned criminal defense attorney, emphasized that a defendant can still call witnesses to challenge the reliability of an I-9000’s results under the ruling – after the certificate is admitted.

“They were differentiating the certificate from the result that comes out of it,” she said. “The defense could argue that all you have is this certificate. There’s no testimony saying this machine is working.” 

Fife called the result of the ruling “trial by breath box,” and that the I-9000 receipts are getting around the state requirement that the executive director of the health department or their deputy sign off on the certification.

“This decision is not about transparency. It’s about efficiency,” he said.

Ambrose further challenged the constitutionality of Dilka’s investigative stop, which is permissible as long as law enforcement has reasonable suspicion that a crime has been or is about to be committed. The court agreed that the absence of a tail light and the illumination of Ambrose’s white backup light constituted a violation of the law and were an appropriate basis to pull Ambrose over.

The judges also dismissed Ambrose’s claim that a juror was biased against him because she raised her hand when his attorney asked if any prospective jurors believed it was “never okay” to have a beer before driving. The court found that Ambrose’s attorneys failed to follow up with the juror about her ability to decide fairly.

The case is People v. Ambrose.