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CO Appeals Court Rules Certificate for Breathalyzers Cannot Be Challenged


On July 23, 2020, the Colorado Court of Appeals ruled that individuals facing DUI charges do not have the constitutional right to challenge the functionality certificates of breathalyzers, which measure a person’s blood alcohol content (BAC). The three-member panel said these certificates are not testimonial and, therefore, defendants are prohibited from confronting the preparers of such documents, based on previous case rulings.

The case involved one of our former clients, who was arrested for DWI after he blew a BAC of .063 from the Intoxilyzer 9000. However, a 2019 New York Times investigation revealed that improper calibration of breathalyzers has resulted in tens of thousands of BAC tests being thrown out.

The investigation also highlighted a 2017 Gilpin County District Cout order that rejected an I-9000 functionality certificate since the signature on the document was signed by a former state department employee, who had left before the breathalyzer was approved for use. Although a judge found the health department was aware about the improper signature, the I-9000 was in compliance with state regulations.

Attorney Charles Fife called the appeals court ruling, “intellectual gymnastics in order to get breath tests into evidence cheap and easily,” according to Colorado Politics. He believes certificates are created to ensure the prosecution does not have to call technicians to the stand to attest the functionality of breathalyzers.

He added, “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.”

While the U.S. Supreme Court decided in 2009 that laboratory test results are testimonial and subject to the Confrontation Clause. Furthermore, the Colorado Court of Appeals pointed out there is no information regarding impairment on certificates.

However, Attorney Fife said the high court’s decision beats the bush around the state’s signature requirement on certificates.

He declared, “This decision is not about transparency. It's about efficiency," he said.”

If you or a loved one has been arrested for a DUI in Denver or within the surrounding area, contact Fife Luneau, P.C. today at (720) 408-7130 and schedule a free consultation. Available 24/7.