A judge exceeded his authority by instructing a jury that he found the breathalyzer device used to convict a defendant to be reliable, rather than citing a certification by the Colorado Department of Public Health and Environment, a Court of Appeals panel decided on Thursday.

“Had the trial court taken judicial notice that the CDPHE had determined that the type of device was reliable, it would have complied with the statute,” wrote Judge Ted C. Tow III. “Instead, though, the court only took notice that the device was reliable, neglecting to attribute the finding of reliability to any CDPHE rule.”

Police in Denver pulled over Luke J. Leppek in December 2016. An officer suspected Leppek was inebriated, and Leppek subsequently failed multiple roadside sobriety tests in the officer’s judgment. Following his arrest, Leppek registered a blood alcohol content of .108% on an Intoxilyzer 9000 device.

A jury convicted him of driving while ability impaired, false reporting of information to police, and driving under the influence per se — a charge for those whose BAC exceeds .08%. Leppek’s sentence was four years in prison.

At trial, Leppek’s attorney objected to an instruction that Denver District Judge Michael J. Vallejos gave the jury, indicating “judicial notice” of the breathalyzer’s functionality. Judicial notice is applicable to matters that are well-known within the court’s jurisdiction or not subject to a reasonable dispute.

“There has been evidence introduced before you that an analysis of the defendant’s breath was made by means of an Intoxilyzer 9000 to determine the amount of alcohol in the defendant’s breath at the time of the alleged offense or within a reasonable time thereafter,” Vallejos told the jury.

He continued: “The court takes judicial notice that such testing device is a scientifically and legally reliable and accurate device for determining the alcoholic content of the breath. You may or may not accept this fact as true. You may weigh it as you would any other evidence.”

Colorado’s DUI statute authorizes a court to take judicial notice of drug-testing methods and devices “as certified by the department of public health and environment.” 

Judge Lino S. Lipinsky de Orlov, one of the panel members, characterized during oral argument that Vallejos “put his finger on the scale” by telling the jury, in essence, “I, the judge, sitting on the bench with the black robe, have found…the machine is reliable.”

Tow, in the appellate court’s opinion, acknowledged that the determination a court is allowed to make is “fairly nuanced.” While Vallejos did read the CDPHE certification language to the jury as well, the appellate panel determined that trial courts are not permitted to vouch for the Intoxilyzer’s functionality, either as a class of machine or for individual devices, even with the disclaimer. The panel reversed Leppek’s DUI per se conviction and ordered him resentenced for just the offense of driving while ability impaired.

Leppek also challenged the functionality certificate that the breathalyzer issued as a receipt, on the grounds that the CDPHE executive director who had purportedly certified the device to work during calendar year 2016 had not worked at the department since 2015. The law requires the department’s director or deputy to certify the breathalyzers.

“The court deprived Mr. Leppek of the right to present a defense and confront witnesses,” said Jeanne Segil, Leppek’s lawyer, to the panel during oral argument. 

A separate appeals panel in July found that defendants have no constitutional right to challenge the admissibility of functionality certificates as evidence. Segil, in Leppek’s case, did not assert that the lack of a firmware update to the device impaired its functionality, but argued the jury had the right to hear any evidence to the contrary. The panel, however, dismissed the challenge as irrelevant.

“[W]e cannot see how the signature had any bearing on the accuracy of the test results,” wrote Tow. “Furthermore, we reject Leppek’s assertion that the inaccuracy on the certificate undermined the reliability of the certification — and thus the reliability of the device in general — as the presence of the signature was irrelevant to whether the device was actually certified by CDPHE.”

The case is People v. Leppek.