SUMMARY

March 5, 2020

2020COA36

No. 17CA0820, People v. Jiron — Regulation of Vehicles and 

Traffic — Alcohol and Drug Offenses — Collateral Attack; 

Constitutional Law — Fourth Amendment — Searches and 

Seizures

A division of the court of appeals applies the time bar for 

collateral attacks on previous convictions for driving under the 

influence set forth in section 42-4-1702, C.R.S. 2019, for the first 

time since felony DUI provisions were added to section 42-4-1301, 

C.R.S. 2019. Additionally, the divison considers a novel 

suppression issue and holds that a responding officer reasonably 

concluded that a person driving a car out of the driveway of a house 

where an assault had been reported “a couple of minutes” earlier 

may have been involved in it. 

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.
COLORADO COURT OF APPEALS 2020COA36

Court of Appeals No. 17CA0820

Arapahoe County District Court No. 15CR2866

Honorable Phillip L. Douglass, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Dorothy Marie Jiron,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division VI

Opinion by JUDGE GROVE

Richman and Freyre, JJ., concur

Announced March 5, 2020

Philip J. Weiser, Attorney General, Grant R. Fevurly, Assistant Attorney 

General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jessica A. Pitts, Deputy State 

Public Defender, Denver, Colorado, for Defendant-Appellant
1

¶ 1 Defendant, Dorothy Marie Jiron, appeals her convictions for

felony driving under the influence (DUI) and DUI per se. She 

contends, among other things, that the trial court erroneously 

denied her motion to suppress and that she should have been 

permitted to collaterally attack her 1998 DUI conviction. We affirm.

I. Background

¶ 2 Officer Jacob Davis responded to an assault reported at a 

nearby house. As he approached the house a few minutes later, he

saw a car pull out of the driveway. Without observing a traffic 

infraction, he pulled the vehicle over and contacted Jiron, who was 

sitting in the driver’s seat. 

¶ 3 During the encounter, Jiron smelled strongly of alcohol, her 

speech was slurred, and her eyes were glassy and watery. She was 

“uneasy on her feet,” admitted to having consumed “a few beers,” 

and performed poorly on voluntary roadside maneuvers. 

Concluding that she was “very intoxicated,” Officer Davis arrested 

her for DUI. Results of a blood test performed after Jiron was taken 

into custody showed that her blood alcohol content (BAC) was .334. 

¶ 4 Jiron’s defense at trial was that she “wasn’t driving,” and 

instead “went outside to catch a moment alone” to cool off after an 
2

altercation with her landlord (the same altercation that led to the 

report of assault). A jury found Jiron guilty of DUI and DUI per se. 

At the sentencing hearing, the trial court found, by a 

preponderance of the evidence, that Jiron had committed three 

prior DUI offenses, and imposed felony convictions for the DUI and 

DUI per se counts. 

II. Analysis

¶ 5 Jiron contends that (1) she was entitled to have a jury 

determine beyond a reasonable doubt whether she had prior DUI 

convictions; (2) the evidence of the prior DUI convictions was 

insufficient; (3) the trial court erred by denying her suppression 

motion; (4) the trial court erred by admitting evidence concerning 

her BAC through a certifying scientist; and (5) the trial court 

erroneously admitted expert testimony in the guise of lay witness 

testimony. Finding no reversible error, we affirm. 
3

A. Felony DUI Determination

¶ 6 Jiron first contends that her prior DUI convictions were an 

element of the offense rather than a sentence enhancer, and

therefore had to be proved to the jury beyond a reasonable doubt.1 

¶ 7 Whether a statutory provision is a sentence enhancer or a 

substantive element of an offense is a question of law that we review 

de novo. Lopez v. People, 113 P.3d 713, 720 (Colo. 2005). We look 

to the plain language of the statute to decide whether the prior 

convictions are an element or a sentence enhancer. Vega v. People, 

893 P.2d 107, 112 (Colo. 1995). If the legislative intent is clear 

from the plain language of the statute, our analysis is complete. 

People v. Vigil, 2013 COA 102, ¶ 13. 

¶ 8 “A statutory provision is a sentence enhancer when the 

defendant may be convicted of the underlying offense without any 

proof of the prior conviction.” People v. Gwinn, 2018 COA 130, 

¶ 44. In contrast, elements of a crime are “the legal components 

 1 Because her argument is conclusory, see People v. Wallin, 167 

P.3d 183, 187 (Colo. App. 2007), we do not address Jiron’s 

contention that “[t]he Colorado Constitution should be interpreted 

as requiring proof beyond a reasonable doubt to a jury of every fact 

that increases a sentence.”
4

that are necessary to establish criminal liability.” People v. 

Hopkins, 2013 COA 74, ¶ 8. “Thus, a fact is a sentence enhancer 

rather than a substantive element of an offense if (1) a defendant 

may be convicted of the underlying offense without any proof of the 

fact and (2) the fact merely increases the defendant’s potential 

punishment.” People v. Quezada-Caro, 2019 COA 155, ¶ 11. 

Linking the severity of punishment to the presence or absence of an 

identified fact does not automatically make that fact an element. 

Gwinn, ¶ 44. 

¶ 9 “Generally, any fact, other than the fact of a prior conviction, 

that increases the penalty for a crime beyond the prescribed 

statutory maximum must be submitted to a jury and proved beyond 

a reasonable doubt.” Id. at ¶ 45 (emphasis added). 

¶ 10 With respect to what is required to elevate a DUI charge from a 

misdemeanor to a felony, section 42-4-1301(1)(a), C.R.S. 2019,

provides, in relevant part, as follows:

A person who drives a motor vehicle or vehicle 

under the influence of alcohol or one or more 

drugs . . . commits driving under the influence. 

Driving under the influence 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 
5

episodes, for DUI, DUI per se, or DWAI . . . or 

any combination thereof.

¶ 11 Section 42-4-1301(2)(a) is structured similarly and uses the 

same language with respect to the elevation of a DUI per se charge 

from a misdemeanor to a felony. Further, section 42-4-1301(1)(j) 

states that the prosecution “shall set forth such prior convictions in 

the indictment or information.” 

1. Sentence Enhancer or Element

¶ 12 Jiron contends that the legislative intent in establishing felony 

DUI was to create a separate offense, not a sentence enhancer. She 

argues this interpretation is supported by the structure of the 

felony DUI statute, the pleading requirement that the People 

include prior convictions in the indictment or information, and 

comparisons to various other Colorado statutes.2 

¶ 13 Divisions of this court have split as to whether prior DUI 

convictions constitute a sentence enhancer or are an element of 

 2 Jiron also contends that “[t]o the extent there is any ambiguity in 

the statute, [she] is entitled to lenity.” Because our conclusion rests 

on the unambiguous language of the statute, we do not reach this 

argument. See Candelaria v. People, 2013 CO 47, ¶ 12 (stating rule 

that when the statutory language is clear, appellate courts do not 

resort to other rules of statutory construction).
6

felony DUI.3 Compare Quezada-Caro, ¶ 24 (holding prior DUI 

convictions are a sentence enhancer rather than an element of 

felony DUI), and Gwinn, ¶ 39 (holding prior DUI convictions 

constitute a sentence enhancer that do not require a jury finding), 

with People v. Viburg, 2020 COA 8M, ¶ 1 (departing from QuezadaCaro and Gwinn and concluding that prior convictions are an 

element of felony DUI that must be proved to a jury beyond a 

reasonable doubt).

¶ 14 We agree with Quezada-Caro and Gwinn, and hold that under 

section 42-4-1301(1)(a) and (2)(a), prior convictions are a sentence 

enhancer that need not be submitted to a jury. 

¶ 15 Under the plain language of section 42-4-1301(1)(a) and (2)(a), 

defendants can be convicted of DUI and DUI per se without proof of 

their prior convictions. Section 42-4-1301(1)(a) describes DUI as 

“driv[ing] a motor vehicle or vehicle” while “under the influence of 

alcohol or one or more drugs.” And section 42-4-1301(2)(a) 

describes DUI per se as “driv[ing] a motor vehicle or vehicle when 

 3 The supreme court has granted certiorari on this issue in Linnebur 

v. People, No. 18SC884, 2019 WL 3934483 (Colo. Aug. 19, 2019) 

(unpublished order). 
7

the person’s BAC is 0.08 or more at the time of driving or within 

two hours after driving.” With respect to both offenses, the prior 

conviction provisions are contained in a separate sentence within 

the relevant statutory subsection. Reading the statutory language 

in context, see Vigil, ¶ 13, we conclude that section 42-4-1301(1)(a) 

“defines the crime” and then subsequently “establish[es] the class[] 

of felony.” Hopkins, ¶ 14. This point is illustrated by the fact that a 

defendant may be convicted under section 42-4-1301(1)(a) even if 

she has no prior convictions for driving under the influence. 

¶ 16 Although other statutes place prior conviction sentence 

enhancers in a separate section or subsection from the elements of 

the offense — see, e.g., § 18-6-401, C.R.S. 2019 (elements of child 

abuse and prior conviction sentence enhancer); § 18-6-800.3, 

C.R.S. 2019 (elements of domestic violence); § 18-6-801(7)(a), C.R.S. 

2019 (domestic violence prior conviction sentence enhancer); § 18-

7-302, C.R.S. 2019 (elements of indecent exposure and prior 

conviction sentence enhancer) — “the structure of the statute does 

not change its plain language.” Quezada-Caro, ¶ 20. But context 

does bear on proper statutory interpretation. Thus, in the statute 

prohibiting possession of a weapon by a previous offender (POWPO), 
8

the legislature defined the offense — including the required fact of a 

qualifying prior conviction — in a single sentence. See § 18-12-

108(1), C.R.S. 2019.4 Because “[t]he prior conviction requirement is

included in the definition” of the crime, it “is an element of the 

POWPO offense.” Quezada-Caro, ¶ 18 (citing People v. Dist. Court, 

953 P.2d 184, 189 (Colo. 1998)). 

¶ 17 Finally, the mere fact that the prior convictions must be 

pleaded in the charging document does not prove that they are an

element of the offense. To the contrary, although the prosecution 

“shall set forth such prior convictions in the indictment or 

information,” § 42-4-1301(1)(j), a division of this court has 

concluded that according to the DUI statute’s plain language, “prior 

DUI convictions constitute sentence enhancers that do not require a 

jury finding, rather than elements of the crime that do.” Gwinn, 

¶ 39. Because we agree with the reasoning of the division in Gwinn, 

we conclude that under the DUI statute, prior DUI convictions are a

 4 The elements of POWPO are that (1) the defendant, (2) in the State 

of Colorado, at or about the date and place charged, (3) subsequent 

to being convicted of a qualifying felony, (4) knowingly 

(5) possessed, used, or carried upon her person any weapon that is 

subject to the provisions of title 18, article 12. See § 18-12-108(1) 

C.R.S. 2019.
9

sentence enhancer, and not an element of a DUI offense. See id. at 

¶¶ 43-53. But see Viburg, ¶ 12 (“[T]he General Assembly would not 

have required the prosecutor to plead the prior offenses in the 

indictment or information unless it had intended prior convictions to 

be elements of the offense.”). 

¶ 18 Based on the plain language of the statute, we conclude that 

prior DUI convictions are a sentence enhancer rather than an 

element of felony DUI. Thus, the trial court properly applied the 

preponderance of the evidence standard in determining the 

existence and validity of the prior convictions. 

2. Apprendi/Blakely Prior Conviction Exception

¶ 19 Jiron next contends that under Apprendi v. New Jersey, 530 

U.S. 466 (2000), and Blakely v. Washington, 542 U.S. 296 (2004), 

she was entitled to a jury finding as to the existence of her prior 

convictions. We disagree because our supreme court has held that 

prior convictions are excepted from Apprendi, see Misenhelter v. 

People, 234 P.3d 657, 660-61 (Colo. 2010), and we are bound by 

supreme court precedent. Thus, contrary to Jiron’s claim, if the 

sentence enhancer is a prior conviction, the defendant does not 
10

have a constitutional right to have a jury decide whether she had 

such a prior conviction. See Gwinn, ¶ 45. 

3. Equal Protection

¶ 20 Finally, for the first time on appeal, Jiron contends that “the 

Felony DUI scheme violates equal protection” because it prescribes 

different penalties for the same conduct. In Quezada-Caro, ¶ 32, a 

division of this court rejected this argument “[b]ecause the statutes 

proscribe different conduct, for which the legislature may impose 

different penalties.” We agree with this reasoning, and therefore 

conclude that the DUI statutes do not violate Jiron’s right to equal 

protection. 

B. Sufficiency of the Evidence

¶ 21 Jiron next contends that the prosecution did not present 

sufficient evidence to prove that she had been convicted of three

prior DUI offenses. Specifically, Jiron argues that (1) the trial court 

erroneously applied the statutory time bar to her collateral attack

on one of the convictions and (2) the prosecution did not establish a 

“connecting link” showing that she was the person convicted in the 

prior cases. We address and reject each contention in turn. 
11

1. Time Bar

¶ 22 Jiron contends that the trial court erred when it found that 

her collateral challenge to her 1998 DUI conviction was time barred

because (1) a statute may not infringe on the right to challenge 

prior convictions where the conviction was obtained in violation of 

the right to counsel; and (2) even if the statutory time bar applies, 

she established justifiable excuse or excusable neglect. 

¶ 23 A defendant charged with felony DUI may attack the

constitutional validity of her prior impaired driving convictions. See

People v. Roybal, 618 P.2d 1121, 1124 (Colo. 1980). And an

unconstitutionally obtained conviction cannot be used in a later 

proceeding to support guilt or enhance punishment. Id. 

¶ 24 However, a motion collaterally attacking the validity of a 

judgment entered for a prior DUI must be filed “within six months 

after the date of entry of the judgment.” § 42-4-1702(1), C.R.S. 

2019. Jiron was convicted of a DUI on November 4, 1998. 

Therefore, unless an exception applied (a question that we review de 

novo, see Close v. People, 180 P.3d 1015, 1019 (Colo. 2008)), the 

time bar for Jiron to collaterally attack her 1998 DUI conviction 

expired on May 4, 1999. She did not do so until March 7, 2017. 
12

¶ 25 The overwhelming majority of cases addressing time 

limitations on collateral attacks do so in the context of section 16-5-

402, C.R.S. 2019.5 However, because both statutes establish an 

exception for “justifiable excuse or excusable neglect,” and since the 

time bar pertaining to traffic convictions was enacted after section 

16-5-402, cases interpreting section 16-5-402 can fairly be 

assumed to apply to section 42-4-1702 as well. See People v. 

Trimble, 839 P.2d 1168, 1171-72 (Colo. 1992) (holding a trial court 

should consider whether “justifiable excuse or excusable neglect” 

justified an otherwise untimely collateral attack); People v. Fleming, 

781 P.2d 1384, 1387 n.5 (Colo. 1989) (holding that the five-year 

grace period that the supreme court had previously held was 

implied by section 16-5-402 would also apply to postconviction 

challenges filed pursuant to section 42-4-1501.5, C.R.S. 1984

(repealed 1994)). 

 5 Section 16-5-402, C.R.S. 2019, is general in scope and establishes 

different limitation periods for felonies, for misdemeanors, and for 

petty offenses. In contrast, section 42-4-1702, C.R.S. 2019, was 

enacted as part of the Uniform Motor Vehicle Law, see § 42-1-101, 

C.R.S. 2019, and by its plain terms allows only collateral challenges 

to alcohol- and drug-related driving offenses. Thus, section 42-4-

1702, a more specific statute, controls. § 2-4-205, C.R.S. 2019.
13

¶ 26 Factors in addressing the issue of justifiable excuse or 

excusable neglect include: (1) whether there are circumstances or 

outside influences preventing a challenge to a prior conviction and 

the extent to which the defendant having reason to question the 

constitutionality of a conviction investigates its validity and takes 

advantage of relevant avenues of relief that are available; 

(2) whether a defendant had any previous need to challenge a 

conviction and either knew that it was constitutionally infirm or 

had reason to question its validity; (3) whether a defendant had 

other means of preventing the government’s use of the conviction, 

so that a postconviction challenge was previously unnecessary; and 

(4) whether the passage of time affects the State’s ability to defend 

against the challenge. People v. Wiedemer, 852 P.2d 424, 441-42 

(Colo. 1993). 

¶ 27 Before the sentencing hearing, defense counsel moved to 

suppress Jiron’s conviction in Arapahoe County case number

98M101348, arguing that it had been unconstitutionally obtained.6 

 6 Specifically, Jiron argued that her 1998 conviction was 

constitutionally infirm as the result of the application of section 16-

7-301(4)(a), C.R.S. 1998, which, at the time, encouraged indigent 
14

She argued that the time bar should not apply because, before the 

felony DUI statute was passed, a defendant had no need to 

collaterally challenge a misdemeanor DUI conviction.

¶ 28 Jiron advances the same argument on appeal, contending that 

her failure to seek relief within the applicable time period was the 

result of circumstances amounting to justifiable excuse or

excusable neglect because “[p]rior to August 2015,” when the felony 

DUI law took effect, “there was little reason to challenge 

unconstitutionally obtained DUI convictions.” The record, however, 

belies this assertion. Jiron’s 1998 conviction affected her sentence 

for her second and third DUIs, including by mandating jail time for 

her 2011 conviction. See § 42-4-1301(7), C.R.S. 2005 (sentencing 

provision in effect for 2005 conviction); § 42-4-1307(6), C.R.S. 2010

(sentencing provision in effect for 2011 conviction). As the trial 

court noted, at the time of that conviction

 

defendants charged with a misdemeanor, petty offense, or traffic 

offense to engage in uncounseled plea negotiations with the 

prosecutor before qualifying for the appointment of counsel. Facing 

questions about the constitutionality of this arrangement in the 

wake of Rothgery v. Gillespie County, 554 U.S. 191 (2008), the 

General Assembly amended section 16-7-301(4)(a) in 2013. Ch. 

306, sec. 1, § 16-7-301, 2013 Colo. Sess. Laws 1622-23. 
15

the United States Supreme Court had already 

said that you are entitled to a lawyer for a 

misdemeanor charge that could involve jail 

time. Her 201[1] conviction involved jail 

time . . . and more jail time because of the 

1998 conviction. So after the Supreme Court 

spoke, she had a need to do it, she had a 

reason to do it, and she didn’t.

¶ 29 Jiron does not explain what steps, if any, she took between 

1998 and 2017 to investigate the validity of the conviction or why 

she did not take advantage of the avenue of relief that is statutorily 

provided in section 42-4-1702 to challenge the conviction. Nor does 

Jiron explain why, when she was charged in this case, she did not 

promptly challenge the validity of the 1998 conviction. Even if 

Jiron had no need to challenge that conviction before she was 

charged, she certainly did once it became clear that the conviction 

was integral to the prosecution’s case. As the trial court recognized, 

even “giving [Jiron] every benefit of the doubt,” the collateral attack 

“should have been brought within six months of November of 2015 

[when Jiron was charged in this case], and was not.” In fact, Jiron 

did not file her collateral attack until just before sentencing — more 

than fourteen months after she was charged with felony DUI. 
16

¶ 30 We also reject Jiron’s argument that under Custis v. United 

States, 511 U.S. 485, 487 (1994), she should have been allowed to 

challenge her 1998 conviction irrespective of the statutory time bar 

because a statute may not infringe the right to challenge a prior 

conviction where the conviction was obtained in violation of the 

right to counsel. In Custis, the United States Supreme Court held 

that a defendant who is subject to mandatory enhanced sentencing 

under the Armed Career Criminal Act has no constitutional right to 

collaterally attack her underlying state convictions in the federal 

courts “with the sole exception of convictions obtained in violation 

of the right to counsel.” Id. But, irrespective of a defendant’s

grounds for asserting that her previous conviction was 

unconstitutionally obtained, Custis did not abrogate a state’s ability 

to set time limits on collateral attacks. See Wiedemer, 852 P.2d at

434 (“It is well settled that states may attach reasonable time limits 

to the assertion of federal constitutional rights.”); see also People v. 

Vigil, 955 P.2d 589, 591 (Colo. App. 1997) (holding that a lack of 

counsel does not amount to justifiable excuse or excusable neglect

under section 16-5-402). And collateral attacks on alcohol- or 

drug-related traffic offenses are subject to section 42-4-1702(1), 
17

which, as relevant here, precludes a collateral attack on the validity 

of a judgment unless the attack is commenced within six months 

after the date of entry of the judgment. 

¶ 31 Thus, Jiron’s explanation for the substantial delay in 

collaterally attacking her previous DUI conviction does not establish 

justifiable excuse or excusable neglect.

2. The State’s Proof of Prior Convictions

¶ 32 Jiron next contends that “the State failed in its burden of 

proving that [she] had three prior DUI convictions.” 

¶ 33 We review the sufficiency of the evidence de novo. See People 

v. Strock, 252 P.3d 1148, 1155 (Colo. App. 2010). We look at the 

evidence as a whole and in the light most favorable to the 

prosecution to determine if it “is substantial and sufficient to 

support a conclusion by a reasonable person that the defendant” is 

the person previously convicted. People v. Carrasco, 85 P.3d 580, 

582 (Colo. App. 2003). The prosecution is given the benefit of every 

inference that may reasonably be drawn from the evidence. Id. at 

583. To establish by a preponderance of the evidence that Jiron 

had three prior convictions, the prosecution was required to show 

that it was “more likely than not” that Jiron is the same person who 
18

was convicted in the three prior incidents. People v. Groves, 854 

P.2d 1310, 1313 (Colo. App. 1992). 

¶ 34 At the sentencing hearing, the prosecution presented the 

following evidence of Jiron’s prior convictions:

• a certified Division of Motor Vehicles (DMV) record; 

• a certified sentencing order, register of actions, and plea 

agreement for Arapahoe County case number 

98M101348;

• a certified register of actions and plea agreement for 

Denver County case number 00M00320; and

• a certified sentencing order, waiver of advisal of rights, 

and register of actions for Adams County case number 

10CR1867. 

¶ 35 Defense counsel focused his argument on the 1998 conviction, 

arguing that the evidence was insufficient to show that Jiron was 

the same person who was convicted because the defendant’s name 

on the supporting documentation was “Dorothy Marie Velasquez” 

and the prosecution presented a plea to a probation violation, 

rather than a plea to DUI.
19

¶ 36 The trial court took judicial notice of Jiron’s signature in the 

court file, compared it to the signatures on the supporting evidence,

and found the signatures to be consistent. See CRE 901(b)(3). It 

also compared the photograph in the DMV record to Jiron as she 

appeared in the courtroom and determined that the photograph was 

of Jiron. The trial court acknowledged that the 1998 case involved 

a probation violation plea agreement, but also noted that the 

underlying case involved a conviction for DUI. Accordingly, the trial 

court found that Jiron had three prior convictions for DUI. 

¶ 37 Jiron contends that the evidence presented is insufficient to 

provide the “connecting link” between the prior convictions and 

Jiron because 

[t]here were no fingerprints submitted for the 

prior convictions. Nor were there photographs. 

There was no sentencing order to support the 

2000 conviction, and the sentencing orders for 

the 1998 case and the 2010 case were not 

from the initial sentencing hearings. Indeed, 

the 1998 conviction had a different name.

¶ 38 The DMV record included Jiron’s photograph, full legal name, 

date of birth, address, and signature. It also included a listing of all 

activity related to her driving history, which included her three prior 

DUIs:
20

(1) Entry 043 showed a citation for DUI by the Englewood 

Police Department with a violation date of June 13, 1998, 

a conviction date of November 4, 1998, and a citation 

number of 221880. 

(2) Entry 036 had a citation for DUI by the Denver Police 

Department with a violation date of January 9, 2000, a 

conviction date of August 15, 2005, and a citation 

number of 00M00320.

(3) Entry 027 showed a citation for DUI by the Adams 

County Sheriff’s Department with a violation date of July 

3, 2010, a conviction date of January 11, 2011, and a 

citation number of 10-9096.

¶ 39 With respect to Arapahoe County case number 98M101348, 

the People introduced the sentencing order, register of actions, and 

plea agreement, which were in the name of “Dorothy Marie 

Velasquez” — Jiron’s former name — but listed the same date of 

birth as the DMV record. The sentencing order and plea agreement 

were for a violation of probation in 2004, but they referred to the 

underlying guilty plea to DUI that originally placed Jiron on 

probation. The register of actions listed personal identifying 
21

information that matched the DMV record; it also listed an offense 

date as well as a ticket number for Jiron’s DUI charge, and reflected 

a guilty plea to that charge with a sentence to probation. 

¶ 40 As for Denver County case number 00M00320, the People 

introduced the register of actions and plea agreement, which were 

in Jiron’s legal name with the same date of birth as the DMV record 

and documents from Arapahoe County case number 98M101348. 

The first page of the register of actions under the “Party 

Information” section listed not only Jiron’s legal name, but that she 

was also known as “Dorothy Marie Velasquez.” The register of 

actions also listed the charging date and the dates on which Jiron 

pleaded guilty and was sentenced. The plea agreement included 

Jiron’s signature, an elemental advisement with the entry for “DUI

with a prior DUI” circled, and a copy of the original summons and 

complaint listing number 00M00320 as well as her driver’s license 

number — which matched the DMV record — and other personal 

identifying information.

¶ 41 Finally, with respect to Adams County case number 

10CR1867, the People introduced a sentencing order, waiver of 

advisal of rights, and register of actions, which included Jiron’s 
22

legal name and the date of birth in her DMV record. Page one of the 

register of actions listed Jiron’s various aliases — including the 

name “Dorothy Marie Velasquez” — as well as other personal 

identifying information matching the DMV record. The register of 

actions reflected the date that Jiron was charged, the ticket 

number, her guilty plea, and the sentencing date. 

¶ 42 Reviewing the evidence as a whole and in the light most 

favorable to the prosecution, we conclude that it supports the trial 

court’s finding, by a preponderance of the evidence, that Jiron had 

committed at least three prior DUI offenses. 

C. Motion to Suppress

¶ 43 Jiron argues that the trial court erroneously denied her 

motion to suppress. Although it is a close call, we conclude that 

there was no error. 

¶ 44 Before trial, Jiron moved to suppress evidence collected from 

the traffic stop that led to her arrest, arguing that it was an 

investigatory detention that took place without reasonable 

articulable suspicion. In a detailed written order issued after a twoday hearing, the trial court concluded that Officer Davis had 
23

reasonable suspicion to conduct the investigatory stop. It therefore 

denied Jiron’s motion.

¶ 45 Review of a suppression order presents a mixed question of 

fact and law. People v. Brown, 2019 CO 63, ¶ 8. We accept the 

trial court’s findings of fact that are supported by competent 

evidence, but we review the application of the law to those facts de 

novo. Id. 

¶ 46 A police officer may conduct a brief investigatory stop if he has

“a specific and articulable basis in fact for suspecting that criminal 

activity has occurred, is taking place, or is about to take place.” Id.

at ¶ 10 (quoting People v. Perez, 690 P.2d 853, 855 (Colo. 1984)). In 

determining whether an officer had reasonable suspicion, courts 

look to the totality of circumstances, keeping in mind that “[a]n 

officer is entitled to draw reasonable inferences from all the 

circumstantial evidence ‘even though such evidence might also 

support other inferences.’” Id. at ¶ 11 (quoting People v. Threlkel, 

2019 CO 18, ¶ 20). Relevant factors include

(1) the particularity of the description of the 

offender or the vehicle in which he fled; (2) the 

size of the area in which the offender might be 

found, as indicated by such facts as the 

elapsed time since the crime occurred; (3) the 
24

number of persons about in that area; (4) the 

known or probable direction of the offender’s 

flight; (5) observed activity by the particular 

person stopped; and (6) knowledge or 

suspicion that the person or vehicle stopped 

has been involved in some criminality of the 

type presently under investigation.

Id. (quoting People v. Bell, 698 P.2d 269, 272 (Colo. 1985)). 

¶ 47 Following a hearing on Jiron’s motion to suppress, the trial 

court made detailed factual findings relating to the grounds for the 

traffic stop. As relevant here, those findings included the following.

• While on routine patrol, Officer Davis received 

information over dispatch that an individual had reported 

that his roommate, Dorothy Jiron, had assaulted him at 

their shared residence. 

• Officer Davis was nearby when the call was reported by 

dispatch, so he responded to the address, without lights 

and sirens, and arrived “within a couple of minutes of the 

dispatch.”

• “Based on the information Officer Davis had from 

dispatch, there was no reason for him to believe that the 

suspect had left the residence.”
25

• When he arrived, Officer Davis “observed a Red Pontiac 

Grand Am pull out of the driveway of that specific 

address. The vehicle proceeded northbound on 

Pennsylvania and passed Officer Davis.”

• Officer Davis could not see who was driving the car, nor 

did he see it commit any traffic infractions. 

• Nonetheless, because the vehicle was leaving the house 

where the alleged assault had occurred, Officer Davis 

suspected that the driver was involved in some way with

the reported assault. He therefore pulled the vehicle 

over. 

¶ 48 While subsequent investigation confirmed Officer Davis’s 

suspicion that the driver of the car (Jiron) was involved in the 

reported alleged assault, and also revealed that Jiron might be 

intoxicated (thereby justifying the escalation from an investigatory 

stop to a custodial one), we are concerned only with whether the 

events described above violated the Fourth Amendment’s 

prohibition against unreasonable searches and seizures. See 

Florida v. J.L., 529 U.S. 266, 271 (2000) (“The reasonableness of 
26

official suspicion must be measured by what the officers knew 

before they conducted their search.”). 

¶ 49 Relying in large part on the analysis and holding in United 

States v. Bohman, 683 F.3d 861 (7th Cir. 2012), Jiron contends 

that Officer Davis’s search violated the Fourth Amendment because, 

as she puts it, “[l]eaving the scene of an alleged crime, without 

more, is insufficient to establish reasonable suspicion.” Bohman, 

however, is distinguishable. In that case, police were surveilling a 

hunting cabin that a tipster — who “wanted to ‘snitch in exchange 

for consideration on his charges’” — claimed had been used to cook 

methamphetamine “three times in the past two months.” Id. at 862 

(citation omitted). When a vehicle left the property, an officer pulled 

it over without observing a traffic violation, questioned the 

occupants, and discovered incriminating evidence. 

¶ 50 The Seventh Circuit held that, under these facts, the officer 

had nothing more than a hunch that illegal activity was occurring 

at the hunting cabin. But a hunch was not enough. See Terry v. 

Ohio, 392 U.S. 1, 27 (1968). All that the officer knew when he 

stopped the departing car was that an inmate looking for favorable 

treatment had claimed that the cabin was occasionally used for 
27

criminal activity. Surveillance conducted before the stop yielded 

nothing that either confirmed or undermined this claim. And the 

vehicle that the officer stopped did not match the description that 

the tipster had provided. In short, when the officer “stopped the car 

he did so because it emerged from a forty-acre tract containing a 

suspected meth cook site.” Bohman, 683 F.3d at 865. That 

observation fell short of justifying the stop because “[a] mere 

suspicion of illegal activity at a particular place is not enough to 

transfer that suspicion to anyone who leaves that property.” Id. at 

864.

¶ 51 In holding that the traffic stop was not constitutionally 

justified, the Bohman court carefully distinguished United States v. 

Brewer, 561 F.3d 676 (7th Cir. 2009), a case that we find 

particularly relevant to the facts here. In Brewer, a police officer 

learned from dispatch that a fight had been reported at a nearby 

apartment complex. As he prepared to respond, the officer “heard a 

popping sound that he believed was gunfire coming from the 

complex.” Id. at 677. “Within minutes he was told by the 

dispatcher that indeed shots had been fired,” id., and “saw a vehicle 

emerge seconds later from the complex,” id. at 679. The hour was 
28

late and the subject vehicle was the only car on the road, so the 

officer “radioed to other officers to watch” for it. Id. at 677. They 

did so and pulled it over — based solely on the officer’s 

description — a short time later. Id. 

¶ 52 The Brewer court held that “the case is on the line between 

reasonable suspicion and pure hunch.” Id. at 678. But after 

considering the totality of the circumstances, including the fact that 

the defendant was driving the only vehicle on the only road exiting 

the complex, the court concluded that those circumstances 

amounted to reasonable suspicion. Id. 

¶ 53 Officer Davis had more to go on than the police did in Bohman. 

Unlike the officers there, Officer Davis was not investigating a claim 

that criminal activity occasionally occurred at the address in 

question. Rather, he was responding to a report that someone had 

just been assaulted at a specific residential address and that the 

assailant and her boyfriend (who was also present) were drunk. He 

arrived “within a couple of minutes” of the call to see a car exiting 

the driveway of the single-family home that was the source of the 

call. Much like the officer in Brewer, who “natural[ly] surmise[d]

that whoever fired the shots had left the complex,” 561 F.3d at 678, 
29

it was reasonable for Officer Davis to deduce that the person driving 

the car away from the house where the incident had just been 

reported may have been involved in it. And because Officer Davis

arrived at the scene in time to see the car pull out of the driveway, 

the potential link between the vehicle and the reported crime was 

more firmly established than it was in Brewer. See United States v. 

Jackson, 700 F. App’x 411, 416 (6th Cir. 2017) (noting that 

“proximity can be a relevant factor in forming reasonable 

suspicion”). 

¶ 54 To be sure, if Officer Davis had arrived at the scene a few 

seconds later, he might not have seen Jiron’s car pull out of the 

driveway and our calculus might be different. But on these facts, 

we conclude that there was a substantial enough connection 

between the report of a crime and the vehicle leaving the scene to 

arouse reasonable suspicion on the part of an investigating officer. 

Accordingly, we discern no error in the trial court’s ruling. 

D. “Certifying Scientist” Testimony

¶ 55 Jiron next contends that the admission of evidence concerning 

her BAC through Isaac Avram, the certifying scientist in the 

analysis of Jiron’s blood sample, violated (1) her constitutional right
30

to confrontation; (2) her statutory right to in-person testimony; and

(3) the rule against implied hearsay. We address and reject each 

contention in turn.

1. Preservation

¶ 56 The parties agree, as do we, that Jiron preserved her claims as 

they relate to confrontation and in-person testimony. The parties 

dispute whether Jiron preserved her implied hearsay argument. 

Jiron asserts that a hearsay objection was included in defense 

counsel’s objection to the admission of the lab report under 

Bullcoming v. New Mexico, 564 U.S. 647, 652 (2011), which held 

that “a forensic laboratory report containing a testimonial 

certification — made for the purpose of proving a particular fact —

through the in-court testimony of a scientist who did not sign the 

certification or perform or observe the test reported in the 

certification” is inadmissible “surrogate testimony” if a defendant 

demands in-person testimony and the analyst who conducted the 

test does not testify. But the People respond that, although defense 

counsel argued that the testimony did not satisfy the requirements 

of Bullcoming, defense counsel did not object on hearsay grounds. 

We agree with the People. 
31

¶ 57 Before trial, defense counsel filed a request for in-person 

testimony. On the morning of trial, the prosecutor told the trial 

court that the laboratory employee she was calling was the 

certifying scientist, Avram, and not the analyst who actually 

analyzed the blood sample. Defense counsel objected, asserting

Jiron’s right to confrontation. The court deferred ruling.

¶ 58 Avram testified and was tendered as an expert in the field of 

blood analysis. Defense counsel had no objection to this 

qualification, but stated he “would object if there was any attempt 

to bring out further testimony as far as forensic toxicology or 

opinions on -- the results of analysis.” When the prosecutor moved 

to admit the BAC report, defense counsel objected to “foundation 

and chain of custody.” Later, Avram testified that he did not have 

any reason to doubt the reliability of the test results and defense 

counsel objected that Avram’s statement “calls for speculation.” 

Finally, defense counsel supplemented his objection, under the 

Sixth Amendment of the United States and Colorado Constitutions 

and Bullcoming and Marshall v. People, 2013 CO 51, “that [Avram’s] 

testimony does not meet what the court found to be sufficient for 

confrontation purposes in Marshall. And, therefore, that evidence 
32

should not be presented to the jury, absent the opportunity to 

confront . . . the analyst who actually performed the test[.]” 

¶ 59 Because defense counsel did not raise a hearsay objection, the 

implied hearsay claim Jiron presents on appeal was not preserved. 

See People v. Ujaama, 2012 COA 36, ¶ 37. As a result, we will 

reverse only if the trial court committed plain error. Id.; see Crim. 

P. 52(b). 

2. Confrontation Clause and Section 16-3-309(5)

¶ 60 We first address Jiron’s contentions that allowing a certifying 

scientist to testify to the results of the chemical analysis violated 

her constitutional right to confrontation and statutory right to inperson testimony. 

¶ 61 We review confrontation claims and a district court’s 

evidentiary rulings under section 16-3-309(5), C.R.S. 2019, de 

novo. Bernal v. People, 44 P.3d 184, 198, 200 (Colo. 2002); People 

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

¶ 62 The United States and Colorado Constitutions guarantee a 

criminal defendant the right to confront the witnesses against her. 

U.S. Const. amend. VI; Colo. Const. art. II, § 16; People v. Fry, 92 

P.3d 970, 975 (Colo. 2004). Thus, the out-of-court testimonial 
33

statements of a witness who does not appear at trial are barred 

unless (1) the witness is unavailable and (2) the defendant had a 

prior opportunity for cross-examination. Crawford v. Washington, 

541 U.S. 36, 54 (2004). Forensic laboratory reports are testimonial 

in nature, Bullcoming, 564 U.S. at 665, and are only admissible 

when the defendant has the opportunity to cross-examine the 

person who prepared the report. Id. at 658; see also Cropper v. 

People, 251 P.3d 434, 436 (Colo. 2011). 

¶ 63 Bullcoming held that a “surrogate” analyst who did not observe 

the test or sign the certified report could not testify about the 

report’s contents. 564 U.S. at 661. But more recently, our 

supreme court held that a supervisor’s testimony satisfies the 

Confrontation Clause when the supervisor prepares or signs the 

report and independently reviews the testing data. Marshall, ¶ 19. 

¶ 64 As noted, Avram was called by the prosecution and was 

certified as an expert in blood analysis. Avram described generally 

the steps involved in the testing process and explained that each 

test requires both an analyst and a certifying scientist in order to 

generate a valid result. The only difference between the analyst and 

the certifying scientist is that the “analyst will sample the blood 
34

sample and load it on the instrumentation” involved in the analysis, 

“[a]nd then after that, the analyst and the certifying scientist will 

conduct all of the same steps.” Avram testified that his involvement 

in this case was as a certifying scientist, which he confirmed 

required him to “independently review[] the calibration and all of the 

data the analyst would have reviewed” and to ensure the standard 

operating procedures of the laboratory were followed. Avram 

further testified that, as a certifying scientist, he “did not have any 

direct contact with the blood” and he was not a supervisor. The 

court admitted the report of analysis and Avram testified that 

Jiron’s BAC was .334. 

¶ 65 Here, as in Marshall and People v. Fuerst, 2019 COA 2, 

Avram’s testimony satisfied the requirements of the Confrontation 

Clause and section 16-3-309(5). In Marshall, the supervisor 

oversaw the testing process, reviewed the data generated by the 

test, reviewed the testing instruments themselves, reviewed the 

analysts’ testing notes to determine the accuracy of the procedures 

the analysts employed, and certified and signed off on the report 

generated. Marshall, ¶ 19. Our supreme court concluded that this 
35

level of involvement sufficiently protected the defendant’s right of 

confrontation. Id. at ¶ 20. 

¶ 66 Similarly, although Avram was not a supervisor, he 

participated in the testing process as the certifying scientist,

reviewed the data and came to an independent conclusion, ensured 

that the standard operating procedures of the laboratory were 

followed, and approved the results. Notably, other than loading the 

blood sample into the instrument, the analyst and the certifying 

scientist conducted “all of the same steps.” This was not merely

“surrogate testimony,” but was testimony from one integrally

involved in the testing process “who accomplished the requested 

analysis.” § 16-3-309(5); see Marshall, ¶¶ 22-23.

¶ 67 We are not persuaded otherwise by Jiron’s argument that 

Avram was not a supervisor. The lack of formal supervisory 

authority is “immaterial” where, as here, the witness “led the 

process of reviewing the test results, employed the [lab’s] quality 

control process,” and approved the results. Fuerst, ¶ 33. 

3. Implied Hearsay

¶ 68 We next address Jiron’s contention that the certifying 

scientist’s testimony was inadmissible implied hearsay.
36

¶ 69 We review evidentiary issues for an abuse of discretion. People 

v. Stewart, 55 P.3d 107, 122 (Colo. 2002). Because this portion of 

Jiron’s argument is unpreserved, we review these statements for 

plain error and will reverse only if they “so undermined the 

fundamental fairness of the trial itself so as to cast serious doubt 

on the reliability of the judgment of conviction.” Hagos v. People,

2012 CO 63, ¶ 14 (quoting People v. Miller, 113 P.3d 743, 750 (Colo. 

2005)). 

¶ 70 Hearsay is “a statement other than one made by the declarant 

while testifying at the trial or hearing, offered in evidence to prove 

the truth of the matter asserted.” CRE 801(c). The rule against 

hearsay encompasses not only verbatim out-of-court statements, 

but also implied hearsay or testimony that raises an inference of 

out-of-court statements. See Golob v. People, 180 P.3d 1006, 1010-

11 (Colo. 2008); People v. Griffin, 985 P.2d 15, 17 (Colo. App. 1998). 

Unless an exception applies, hearsay statements are generally 

inadmissible. CRE 802.

¶ 71 Under CRE 703, Avram’s testimony is properly classified as 

nonhearsay because he performed his own independent review and 

reached an independent conclusion in the case. See CRE 703 
37

(permitting an expert to testify to facts and data that are otherwise 

inadmissible in evidence so long as they formed the basis of the 

expert’s opinion and are of the type reasonably relied upon by 

experts in the field). Accordingly, we perceive no reversible error in 

admitting Avram’s statements. 

E. Admissibility of Officer Testimony

¶ 72 Finally, Jiron contends the trial court erred by allowing 

testimony from Officer Davis regarding roadside sobriety 

examinations and blood draws when he was not qualified as an 

expert witness.

¶ 73 Officer Davis testified that he had conducted approximately 

thirty to forty DUI investigations during his six years on the police 

force. He explained that he was trained in three roadside 

maneuvers — the horizontal gaze nystagmus (HGN) test, the walk 

and turn, and the one-leg stand — and then discussed what each of 

those maneuvers involved, what he was looking for, and how Jiron 

performed. Regarding the HGN test, Officer Davis testified that

“[n]ystagmus, by definition, is the involuntary jerking of the eyes. If 

you move your eyes side to side, as a sober person your eyes will 

move very smoothly.” Defense counsel objected that “this is getting 
38

into expert testimony,” and the court overruled the objection. Next, 

Officer Davis testified that on each of the maneuvers, he noticed 

clues of intoxication, leading him to conclude that, “[t]hrough my 

training and experience, this Defendant was very intoxicated.” 

¶ 74 Officer Davis then testified that about thirty percent of his DUI 

investigations had involved blood draws, and that he was present 

for Jiron’s blood draw. The prosecutor asked Officer Davis if there 

was “anything concerning or out of the ordinary with the blood 

draw that you observed” in this case. After the trial court overruled 

defense counsel’s objection, Officer Davis answered that he had not

seen anything unusual.

¶ 75 We review evidentiary rulings for an abuse of discretion. 

Campbell v. People, 2019 CO 66, ¶ 21. A trial court abuses its 

discretion when its ruling is manifestly arbitrary, unreasonable, or 

unfair. Id.

¶ 76 If we determine that a trial court has abused its discretion 

regarding a preserved, nonconstitutional issue, then we must 

consider whether the error was harmless. Id. at ¶ 22. Under this 

standard, reversal is required only if the error affected the parties’

substantial rights. Id.
39

¶ 77 Here, whether the trial court abused its discretion by 

admitting Officer Davis’s testimony turns on whether the testimony 

was improper under CRE 701. Stewart, 55 P.3d at 122. We rely on 

CRE 701, which governs the admission of opinion testimony by a 

lay witness, rather than CRE 702 governing expert testimony, 

because the prosecution did not seek to qualify Officer Davis as an 

expert witness. Id. CRE 701 provides:

If the witness is not testifying as an expert, the 

witness’ testimony in the form of opinions or 

inferences is limited to those opinions or 

inferences which are (a) rationally based on the 

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

understanding of the witness’ testimony or the 

determination of a fact in issue, and (c) not 

based on scientific, technical, or other 

specialized knowledge within the scope of Rule 

702. 

¶ 78 The application of CRE 701 to police officer testimony “has 

generated equal measures of confusion and controversy.” Stewart, 

55 P.3d at 123. Law enforcement officers are often qualified as 

experts to offer certain types of specialized testimony, such as 

accident reconstruction, but also regularly offer lay opinion 

testimony under CRE 701 “based on their perceptions and 

experiences.” Id. “Officer testimony becomes objectionable when 
40

what is essentially expert testimony is improperly admitted under 

the guise of lay opinions.” Id.

¶ 79 In Campbell, ¶ 31, our supreme court recently concluded that 

a law enforcement officer’s testimony describing the results of HGN

testing was impermissible expert testimony by a lay witness. 

Focusing in large part on the officer’s extensive discussion of his 

training and experience in administering and interpreting HGN 

tests, the court also pointed out that the prosecutor elicited 

answers from the officer on direct examination that were “not the 

type of testimony that someone with only a lay understanding could 

have been expected to offer.” Id. at ¶¶ 27-29. Nevertheless, the 

court found that the error was harmless, given the overwhelming 

evidence proving that the defendant was intoxicated. Id. at ¶¶ 35-

41. 

¶ 80 Jiron contends that Officer Davis improperly testified as an 

expert when he (1) testified that Jiron was “very intoxicated”; (2) 

testified that there was nothing unusual about the blood draw in 

this case; and (3) defined the term “nystagmus.”

¶ 81 It is well established that lay witnesses may opine as to 

whether a defendant was intoxicated. People v. Souva, 141 P.3d 
41

845, 850 (Colo. App. 2005). Officer Davis’s testimony that Jiron 

was “very intoxicated” was a proper lay opinion based on his 

perceptions and observations, not any specialized skill or 

experience. See id.

¶ 82 We acknowledge that, under Campbell, the officer’s description 

of the HGN test exceeded the permissible scope of lay testimony. 

However, even if we were to assume that his testimony about the

blood draw procedure was also improper, any error in admitting 

this evidence was harmless. 

¶ 83 Officer Davis testified that Jiron smelled strongly of alcohol, 

her speech was slurred, her eyes were glassy and watery, she was 

uneasy on her feet, and she admitted to drinking a few beers before 

driving. The People admitted evidence showing that Jiron’s BAC

was .334. The jury instructions provided that if Jiron’s blood 

alcohol content exceeded 0.08, the jury could infer that she was 

under the influence of alcohol. Jiron “never denied that she had 

something to drink that night”; rather, she “admitted to drinking” 

and her defense at trial was that she was sitting in her car “to catch 

a moment alone, but she wasn’t driving.”
42

¶ 84 Given the overwhelming evidence of Jiron’s intoxication, as 

well as the nature of her defense, we conclude that admission of 

Officer Davis’s testimony regarding the blood draw procedure and 

the HGN test, when measured against all of the evidence, did not 

substantially influence the verdict or affect the fairness of the trial 

proceedings. See Campbell, ¶¶ 35-41. Accordingly, we find no 

grounds for reversal. 

III. Conclusion

¶ 85 The judgment is affirmed. 

JUDGE RICHMAN and JUDGE FREYRE concur.