Certiorari to the Colorado Court of Appeals Court of Appeals
Case No. 12CA1489
Attorneys for Petitioner: Philip J. Weiser, Attorney General
Rebecca A. Adams, Senior Assistant Attorney General Denver,
Attorneys for Respondent: Megan A. Ring, Public Defender
Brian Cox, Deputy Public Defender Denver, Colorado
We must decide whether the trial court, in a case involving
drinking and driving, abused its discretion when it allowed a
police officer to testify as a lay witness about his ability
to detect the smell of metabolized alcohol and, based on that
metabolized odor, opine on how much alcohol the defendant
ingested and when he did so. We hold that the court abused its
discretion and that the error was not harmless. We therefore
affirm the court of appeals' decision.
Facts and Procedural History
Deputy Luton witnessed a car driven by Simon Kubuugu exit a
parking lot, pull out in front of traffic, and make a U-turn
that forced other drivers to swerve to avoid a collision.
Kubuugu's seven-year-old child was riding in the car with
him. Kubuugu then drove slowly past Deputy Luton and parked
in an apartment complex.
Deputy Luton went over to Kubuugu's car to make contact
with him, and Kubuugu reacted by backing his car over a bush,
apparently in an attempt to leave the apartment complex. That
attempt failed because the exit was blocked by a second
police car that had responded to Deputy Luton's call for
assistance. Kubuugu then got out of his car and quickly
walked away with a beer can in his hand, leaving his child in
the car. Eventually, Kubuugu was stopped by Deputy Luton.
Kubuugu did not exhibit any slurred speech or trouble
walking. Another deputy searched Kubuugu's car and found
two or three empty beer cans. No one administered a breath or
blood alcohol test or any sobriety test, and it is unclear
why. Kubuugu was arrested and charged with criminal
impersonation,  child abuse, driving under restraint,
reckless driving, and driving under the influence.
At trial, Kubuugu testified that he only started drinking
once he parked his car in the apartment complex, that he only
drank a few sips from the beer which was found in his hand,
and that the empty beer cans in his vehicle were from another
day. Deputy Luton testified at trial, without being qualified
as an expert, and opined that Kubuugu had been intoxicated
while driving. Specifically, on direct examination, Deputy
Luton testified that he believed Kubuugu had driven while
intoxicated because Kubuugu (1) drove erratically, (2) had a
beer can in his hand when he was contacted, (3) had empty
beer cans in his vehicle, and (4) smelled of alcohol.
Regarding the smell of alcohol, Deputy Luton testified that
he had years of experience and training in the detection of
drinking and driving, most notably through "wet
lab" training,  and as a result he could distinguish
between the smell of alcohol exuding from a person versus the
smell of spilled alcohol because the former has a
"metabolized" odor. Defense counsel objected to
Deputy Luton's mention of the ability to detect the smell
of metabolized alcohol, arguing that Deputy Luton was
providing expert testimony under the guise of lay testimony.
The trial court overruled the objection.
Later, Deputy Luton elaborated on his ability to detect
metabolized alcohol in response to a question from the jury.
The jury asked Deputy Luton whether the odor coming from
Kubuugu's mouth would be the same if the beer had been
consumed five minutes earlier compared to thirty minutes
earlier. The defense objected to this question but was
overruled. Deputy Luton then testified about how the body
metabolizes alcohol and how that affects its odor, how the
metabolized odor becomes stronger the more someone drinks,
and that the smell of someone's breath who had recently
consumed alcohol is distinct from that of someone who had
consumed alcohol earlier. Deputy Luton concluded that the
strong odor of metabolized alcohol coming from Kubuugu
indicated that, before entering the apartment complex,
Kubuugu consumed a volume of alcohol consistent with the
number of empty beer cans found in his car.
The jury found Kubuugu guilty of criminal impersonation,
child abuse, driving under restraint, driving while ability
impaired (a lesser-included offense of driving under the
influence), and reckless driving. Kubuugu appealed, arguing,
as relevant here, that the trial court improperly admitted
Deputy Luton's expert testimony under the guise of lay
The court of appeals held that Deputy Luton was improperly
allowed to offer expert testimony on alcohol consumption.
People v. Kubuugu, No. 12CA1489, slip op. At 7-9, 13
(Colo.App. Feb. 4, 2016). It further concluded that the error
was not harmless. Id. at 13-14. Accordingly, the
court of appeals reversed Kubuugu's convictions for child
abuse, driving while ability impaired, and reckless driving.
Id. at 15. We granted certiorari and now affirm.
Standard of Review
We review a trial court's evidentiary decisions for an
abuse of discretion. People v. Stewart, 55 P.3d 107,
122 (Colo. 2002). We review a trial court's abuse of
discretion on a preserved, nonconstitutional issue for