Jefferson County District Court No. 16CR341 Honorable Tamara
S. Russel, Judge Honorable Christopher C. Zenisek, Judge
Cynthia H. Coffman, Attorney General, Majid Yazdi, Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
C. Johnson, Denver, Colorado, for Defendant-Appellant
1 Defendant, Michael Can Gwinn, appeals his conviction for
driving while under the influence of alcohol (DUI) as a
felony. He contends that the trial court erred in (1)
quashing eight subpoenas for witnesses who would have
testified about problems with the Intoxilyzer 9000; (2)
allowing the prosecution to impeach its own witness using
leading questions; (3) admitting the express consent form;
(4) refusing a jury instruction; and (5) denying his right to
have a jury determine the existence of his prior DUI
convictions beyond a reasonable doubt. We address and reject
his first four contentions, and, as a matter of first
impression, we conclude that he was not entitled to have a
jury determine the existence of his prior DUI convictions.
Accordingly, we affirm his conviction.
2 One night after work, Gwinn rear-ended another car while
driving home. Officer Trae Tripp responded to the accident
and spoke with Gwinn. He smelled the odor of an alcoholic
beverage on Gwinn's breath, and observed that Gwinn had
bloodshot eyes and slurred speech. Gwinn admitted drinking
four beers before the accident occurred. Officer Tripp
requested a DUI officer, and Officer Jude Perez arrived to
3 Officer Perez asked Gwinn if he would complete voluntary
roadside maneuvers, and Gwinn refused. Gwinn then told
Officer Perez that he drank three or four beers at a bar
before the accident. Officer Perez explained to Gwinn that if
he refused to take a chemical blood or breath test to
determine his blood alcohol level, then he would lose his
license for one year. Gwinn refused all tests, and Officer
Perez arrested him.
4 After a jury convicted Gwinn of DUI and careless driving,
the trial court, in a separate proceeding, found that Gwinn
had three prior DUI convictions, adjudicated him a felony DUI
offender, and sentenced him to thirty months of probation,
two years of work release, and ninety days in the county
Error in Quashing Subpoenas
5 Gwinn first contends that the trial court's refusal to
allow the testimony of eight current and former Colorado
Department of Public Health and Environment (CDPHE) employees
deprived him of his constitutional right to present a
defense. We discern no error.
Standard of Review and Applicable Law
6 A trial court's decision to exclude evidence, including
witness testimony, will not be disturbed on review absent an
abuse of discretion. People v. Rodriguez, 209 P.3d
1151, 1160-61 (Colo.App. 2008), aff'd, 238 P.3d
1283 (Colo. 2010). A court abuses its discretion if its
decision is manifestly arbitrary, unreasonable, or unfair, or
based on an erroneous understanding or application of the
law. Id. at 1161.
7 All relevant evidence is admissible unless otherwise
provided by constitution, statute, or rule. CRE 402;
People v. Rath, 44 P.3d 1033, 1038 (Colo. 2002);
People v. Cordova, 293 P.3d 114, 118 (Colo.App.
2011). Evidence is relevant where it has "any tendency
to make the existence of any fact that is of consequence to
the determination of the action more probable or less
probable than it would be without the evidence." CRE
401; Cordova, 293 P.3d at 118.
8 The exclusion of evidence may, in some circumstances,
implicate a defendant's Sixth Amendment right to present
a defense; however, every restriction on a defendant's
evidence is not constitutional error. Krutsinger v.
People, 219 P.3d 1054, 1062 (Colo. 2009). Instead,
"the right to present a defense is not absolute; it
requires only that the accused be permitted to introduce all
relevant and admissible evidence." Rodriguez,
209 P.3d at 1160. Thus, a defendant must prove that the
evidence is both relevant and admissible. See Taylor v.
Illinois, 484 U.S. 400, 410 (1988) ("The accused
does not have an unfettered right to offer [evidence] that is
incompetent, privileged, or otherwise inadmissible under
standard rules of evidence.").
9 The parties dispute whether this alleged error should be
reviewed for constitutional harmless error or harmless error.
We need not resolve this dispute because we conclude there
was no error.
10 Knowing that the jury would be instructed that it could
consider his refusal to submit to a chemical test when it
determined guilt, see § 42-4-1301(6)(d), Gwinn
sought to introduce the testimony of eight current and former
employees of the CDPHE to show that the Intoxilyzer 9000
breath test machine did not satisfy the requirements of
section 42-4-1301.1(2)(a), C.R.S. 2017, and, thus, did not
produce an accurate result. Gwinn's counsel argued that
the jury should be permitted to infer from this testimony
that Gwinn's refusal was supported by the absence of a
competent intoxilyzer machine. The CDPHE moved to quash the
11 The trial court asked defense counsel whether Gwinn knew
of the intoxilyzer's alleged deficiencies or whether any
other witness could establish that Gwinn knew of them.
Counsel said she did not believe that was required since the
prosecution could argue the negative inference based on no
evidence. When pressed, counsel stated that she did not have
any witnesses to establish Gwinn's knowledge of the
intoxilyzer's purported deficiencies. The trial court
granted the motion to quash finding that the testimony was
irrelevant to Gwinn's refusal because it failed to
establish Gwinn's knowledge of the Intoxilyzer 9000's
alleged deficiencies at the time he refused to submit to
12 We discern no abuse of discretion in the trial court's
ruling. First, because Gwinn refused chemical testing and
never actually blew into the Intoxilyzer 9000, the
machine's operability and accuracy were irrelevant.
See Long v. Colo. Dep't of Revenue, 2012 COA
130, ¶ 31 (when a breath test is refused, the
operability of the breathalyzer is not at issue). And while
the DUI statute allows a defendant to challenge the accuracy
of a particular test, it only applies when the defendant
actually submits to the test and questions its accuracy.
§ 42-4-1301(6)(c)(II), C.R.S. 2017; see also
Long, ¶ 31 ("Once plaintiff refused to take
the breath test after the deputy informed him that the
breathalyzer was functioning properly, the operability of the
breathalyzer was not at issue.").
13 Second, Gwinn failed to show that his reason for refusing
to take a chemical test was related to his knowledge of
problems with the Intoxilyzer 9000. Without this evidence,
testimony about the intoxilyzer's deficiencies did not
make the negative inference from his refusal more or less
probable. CRE 401. Indeed, such testimony could only be
probative if Gwinn knew of the intoxilyzer's alleged
deficiencies and if this knowledge caused his refusal. Absent
evidence of this knowledge, the jury could only speculate
about the importance of the machine's operability in
relation to the evidence presented. Cf. People v.
Salazar, 2012 CO 20, ¶ 17 (noting that evidence
"which has only the most minimal probative value, and
which requires a jury to engage in undue speculation as to
the probative value of that evidence" can be excluded
(quoting People v. Welsh, 80 P.3d 296, 307 (Colo.
14 Gwinn also contends that the trial court's ruling
violated his Fifth Amendment right to remain silent. We
disagree. The trial court stated:
[U]nless Mr. Gwinn takes the stand and testifies that he knew
about the problems that you've just mentioned, . . . if
he takes the stand and says [that he] knew about all of those
problems with the Intoxilyzer, and, therefore, [he] refused
to take the breath test, it might be relevant. However,
otherwise it's absolutely not relevant. . . .
I will not allow your client to testify about not taking the
intoxilyzer unless he has a good faith basis to state on the
record that he knew about all of these problems and
that's one of the reasons he didn't take it. Or if
you have some other witness who is going to testify that Mr.
Gwinn knew about this.
to Gwinn's assertion, the court simply explained to
counsel the various avenues through which Gwinn's
knowledge could be established that would then make the
evidence relevant for admission: e.g., through Gwinn's
own testimony or from a friend or family member who could
establish that Gwinn knew of the intoxilyzer's alleged
deficiencies. Thus, while Gwinn's testimony was one
method of establishing knowledge and thereby relevance, it
was not his only option.
15 Because the accuracy of the Intoxilyzer 9000 was not
relevant, the court did not deprive Gwinn of his right to
present a defense. See id. (explaining that the
right to present a defense is limited to relevant and
Prosecutor's Impeachment Was Proper
16 Gwinn next contends that the trial court erroneously
permitted the prosecutor to lead a friendly witness, Officer
Perez, "under the guise of impeachment" where no
impeachment occurred. We disagree.
Standard of Review and Preservation
17 A trial court's ruling on evidentiary issues is
reviewed for an abuse of discretion and will be upheld unless
it is manifestly arbitrary, unreasonable, or unfair, or
contrary to law. See Kinney v. People, 187 P.3d 548,
558 (Colo. 2008).
18 The Attorney General contends that Gwinn did not preserve
his challenge based on improper leading questions and
impeachment and that our review should be for plain error. We
need not decide preservation because we conclude no error
19 While questioning Officer Perez, the prosecutor asked,
"Did you observe anything specific about Mr. Gwinn's
speech?" Officer Perez responded, "Other than
himself being polite and things like that, it seemed overall
normal." The prosecutor then questioned Officer Perez
about a sobriety examination form that he completed during
the booking process. Gwinn's counsel objected, saying
there was "no reason to review [the form] unless the
officer says that he cannot remember and then only for ...