CO Code § 16-3-309 (2021)
2021 Colorado Code|Title 16 - Criminal Proceedings|Article 3 - Arrest - Searches and Seizures|Part 3 - Searches and Seizures|§ 16-3-309. Admissibility of Laboratory Test Results

  When evidence is seized in so small a quantity or unstable condition that qualitative laboratory testing will not leave a sufficient quantity of the evidence for independent analysis by the defendant's expert and when a state agent, in the regular performance of his duties, can reasonably foresee that the evidence might be favorable to the defendant, the trial court shall not suppress the prosecution's evidence if the court determines that the testing was performed in good faith and in accordance with regular procedures designed to preserve the evidence which might have been favorable to the defendant.    The trial court shall consider the following factors in determining, pursuant to subsection (1) of this section, whether the state has met its obligation to preserve the evidence:   Whether or not a suspect has been identified and apprehended and whether or not the suspect has retained counsel or has had counsel appointed for him at the time of testing;    Whether the state should have used an available test method more likely to preserve the results of seized evidence;    Whether, when the test results are susceptible to subjective interpretation, the state should have photographed or otherwise documented the test results as evidence;    Whether the state should have preserved the used test samples;    Whether it was necessary for the state agency to conduct quantitative analysis of the evidence;    Whether there is a sufficient sample for the defendant's expert to utilize for analysis and the suspect or defendant has made a specific request to preserve such sample;    If paragraph (f) of this subsection (2) cannot be complied with, in view of the small amount of evidence, or when the state's duty to preserve the evidence would otherwise be enhanced, whether it was reasonable for the state to have contacted the defendant to determine if he wished his expert to be present during the testing.       With regard to testing performed on blood, urine, and breath samples which form the basis for a conclusion upon which a statutory presumption arises, it is hereby declared to be the public policy of the state of Colorado that when the prosecution's evidence of test results is sought to be excluded from the trier of fact in a criminal proceeding because the testing destroyed evidence which might have been favorable to the defense, it shall be open to the proponent of the evidence to urge that the testing in question was performed in good faith and in accordance with regular procedures designed to preserve the evidence which might have been favorable to the defense, and, in such instances, the evidence so discovered should not be kept from the trier of fact if otherwise admissible.    For all other types of blood analysis, breath analysis, and urine analysis and for laboratory testing, such as serial number restoration, firearms testing, and gunpowder pattern testing, it is hereby declared to be the public policy of the state of Colorado that, when the prosecution's evidence of test results is sought to be excluded from the trier of fact in a criminal proceeding because of the destruction of evidence upon which the test was performed, it shall be open to the proponent of the evidence to urge that the testing in question was performed in a reasonable, good faith belief that it was proper and, in such instances, the evidence so discovered should not be kept from the trier of fact if otherwise admissible.    Any report or copy thereof or the findings of the criminalistics laboratory shall be received in evidence in any court, preliminary hearing, or grand jury proceeding in the same manner and with the same force and effect as if the employee or technician of the criminalistics laboratory who accomplished the requested analysis, comparison, or identification had testified in person. Any party may request that such employee or technician testify in person at a criminal trial on behalf of the state before a jury or to the court, by notifying the witness and other party at least fourteen days before the date of such criminal trial.    In no event shall evidence be suppressed which results from laboratory testing performed before identification of a suspect for the sole reason that the later identified suspect or his attorney was not present at the time of the testing.    This section is necessary to identify the characteristics of evidence which will be admissible in a court of law. This section does not address or attempt to prescribe court procedure.     History. Source: L. 84: Entire section added, p. 483, § 1, effective July 1. L. 2012: (5) amended,(SB 12-175), ch. 208, p. 844, § 61, effective July 1.    Cross references:   For statutory presumptions in alcohol-related traffic offenses, see §§ 18-3-106 , 18-3-205 , and 42-4-1301 .   ANNOTATION   Law reviews. For article, “The Admission of Blood Alcohol Reports After Bullcoming”, see 41 Colo. Law. 55 (March 2012).   Annotator's note. For cases dealing with lost or destroyed evidence decided prior to the enactment of this section, see § 25 of art. II, Colo. Const., “Criminal trials”.   Subsection (5) is constitutional on its face. Subsection (5), which requires a defendant to affirmatively request a laboratory technician's presence at trial, is an acceptable precondition to a defendant's exercise of his right to confrontation and is therefore not unconstitutional. A defendant's right to confrontation is not denied as he can preserve that right, pursuant to this section, with minimal effort. People v. Mojica-Simental, 73 P.3d 15 (Colo. 2003); People v. Martinez, 254 P.3d 1198 (Colo. App. 2011).   The procedure provided in subsection (5) for ensuring the presence of the laboratory technician at trial does not deny defendant the opportunity to cross-examine the technician but simply requires that the defendant decide prior to trial whether defendant will conduct a cross-examination. Subsection (5) provides the opportunity for confrontation; only the timing of the defendant's decision is changed. Hinojos-Mendoza v. People, 169 P.3d 662 (Colo. 2007); People v. Martinez, 254 P.3d 1198 (Colo. App. 2011).   Burden placed on defendant by subsection (5) to request the presence of the person who prepared the report prior to trial was minimal and did not render subsection (5) facially unconstitutional. Hinojos-Mendoza v. People, 169 P.3d 662 (Colo. 2007); People v. Martinez, 254 P.3d 1198 (Colo. App. 2011).   Criminal laboratory reports are testimonial statements subject to the U.S. supreme court's decision in Crawford v. Washington, 541 U.S. 36 (2004). Hinojos-Mendoza v. People, 169 P.3d 662 (Colo. 2007).   The laboratory report was introduced at trial to establish the elements of the offense with which defendant was charged, and, under such circumstances, the report is testimonial in nature. Hinojos-Mendoza v. People, 169 P.3d 662 (Colo. 2007).   An autopsy report prepared by a doctor who was not present at trial should be considered testimonial under Crawford. Because it was reasonable for the doctor to assume the statements in the autopsy report would be used in a criminal prosecution, the statements were testimonial under Crawford. People v. Merritt, 2014 COA 124 , 411 P.3d 102.   The plain meaning of “accomplish” in subsection (5) is “to execute fully: perform, achieve, fulfill”, thus the prosecution should provide the person, regardless of title, who was qualified and authorized to perform, and did perform, the tests; observed the results and interpreted them; and rendered expert conclusions regarding the identity of the controlled substances present in the sample or specimen. People v. Hill, 228 P.3d 171 (Colo. App. 2009).   Lab supervisor's testimony satisfied the requirement of subsection (5) that the laboratory testing technician who accomplished the analysis be made available at trial, even though the supervisor did not directly perform the screening and confirmation tests. The supervisor reviewed the tests, analyzed the instrument data, and reviewed notes of the lab analysts. The supervisor's review was necessary to fully execute the requested urinalysis because, without this review, the results would not have been certified as accurate and mailed to the police department. Therefore, the supervisor accomplished the analysis for purposes of subsection (5). Marshall v. People, 2013 CO 51, 309 P.3d 943, cert. denied, 572 U.S. 1136, 134 S. Ct. 2661, 189 L. Ed. 2d 212 (2014).   Testimony of a forensic toxicologist who led the process of reviewing the test results, employed the quality control process, and certified the results by signing the laboratory report satisfied the requirement of subsection (5) even though the toxicologist did not complete the original testing. The fact that the toxicologist did not hold a formal supervisory position at the laboratory is immaterial. People v. Fuerst, 2019 COA 2 , __ P.3d __.   Nothing in the language of this section, its history, or in its purpose limits the applicability of this section to “state-run” or “local law enforcement” laboratories as defendant suggests. The reference to “the criminalistics laboratory” in this section is only a reference to the forensic laboratory that performed the test, the results of which are submitted into evidence. People v. Martinez, 254 P.3d 1198 (Colo. App. 2011).   The limited application proposed by defendant is not a reasonable interpretation of the statutory language. Nothing in the definition limits the practice of “criminalistics” to state-run or local law enforcement laboratories. People v. Martinez, 254 P.3d 1198 (Colo. App. 2011).   Defendant's rights under subsection (5) not violated when laboratory supervisor testified at trial even though she was not the person who analyzed defendant's blood alcohol concentration. Because the test results could not have been approved and certified without the supervisor's review, supervisor “performed the final and necessary step” in the testing process, and therefore accomplished the analysis. People v. Medrano-Bustamante, 2013 COA 139 , 412 P.3d 581, aff'd in part and rev'd in part on other grounds sub nom. Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816.   By not complying with the procedural requirements of subsection (5), defense counsel waived defendant's right to confront technician who prepared laboratory report. The right to confrontation falls into the class of rights that defense counsel can waive through strategic decisions. Waiver of this right does not require a voluntary, knowing, and intentional waiver by the defendant personally. Hinojos-Mendoza v. People, 169 P.3d 662 (Colo. 2007); Coleman v. People, 169 P.3d 659 (Colo. 2007); People v. Martinez, 254 P.3d 1198 (Colo. App. 2011).   A defense counsel's erroneous and unreasonable interpretation of this section does not render involuntary a defendant's waiver of his confrontation rights. People v. Martinez, 254 P.3d 1198 (Colo. App. 2011).   Defendant's attorney's failure to comply with subsection (5) waived defendant's right to confront technician who prepared forensic report that was introduced without technician's testimony. Defendant's attorney's ignorance of the statute's requirements does not affect the waiver of the right to confrontation. Defendant received sufficient notice of the existence of the report and its possible introduction at trial. Cropper v. People, 251 P.3d 434 (Colo. 2011).   Before admitting a laboratory report pursuant to subsection (5), some factors the trial court might consider include: Whether an attorney or a pro se litigant actually knew that he was required to notify the opposing party of his desire to have the witness present; the reasons why notice was late or was not given at all; the difficulty of acquiring the presence of the witness; the significance to the case of the report and of the testimony that would be elicited from the technician; and any other pertinent circumstances. People v. Mojica-Simental, 73 P.3d 15 (Colo. 2003).   Forensic laboratory reports are admissible in criminal proceedings without establishing the usual foundation, absent a request that the technician be made available at trial. Testimony about the reports without admitting the reports into evidence does not deny defendant any rights to confrontation or cross-examination. People v. Moses, 64 P.3d 904 (Colo. App. 2002).   Specific requirement in subsection (5) of this section that laboratory testing technician be made available at trial upon timely request overrides general hearsay exception of C.R.E. 803(6). When timely request had been made, trial court erred in admitting laboratory report without technician's testimony as a business record. People v. Williams, 183 P.3d 577 (Colo. App. 2007).   A criminalistics laboratory report may be admitted in evidence in a driving under the influence (DUI) trial without the laboratory technician's testimony because there is no conflict with the general DUI statute, and the constitutional right to confrontation is not violated on its face by requiring the defendant to affirmatively assert such right by requesting the technician to testify. However, a lack of actual notice of the opportunity to require the technician to testify or a mistaken failure to request the testimony may not constitute a voluntary waiver of the right to confrontation. People v. Mojica-Simental, 73 P.3d 15 (Colo. 2003).   Court abused its discretion when it committed to suppress results for tests that had not yet been conducted unless the prosecution allowed the testing to be videotaped or agreed to pay the cost of the defense expert to view the testing. The court was in no position to assess the reasonableness of future conduct. People v. Wartena, 156 P.3d 469 (Colo. 2007).   Court did not err in admitting the lab test through a police officer. The defendant did not file the statutorily required request for the technician to testify in person, so the report could be introduced through another person familiar with the report. The officer did not provide expert testimony in introducing the lab test, so the admission of the report was appropriate. People v. Santana, 240 P.3d 302 (Colo. App. 2009), rev'd on other grounds, 255 P.3d 1126 (Colo. 2011).