Leading the Challenge to Colorado’s I-9000 Breath Test Results

The Bussey Law Firm, P.C., has been a leader in innovative trial tactics for many years. Timothy Bussey, the CEO and founder, is recognized nationally as a top trial attorney. Mr. Bussey is frequently requested to speak at seminars concerning trial advocacy and trial tactics throughout the country.

Leading the Challenge to Colorado’s I-9000 Breath Test ResultsColorado, like other jurisdictions, criminalizes driving with BrAC (breath alcohol concentration) of .08 or more grams of alcohol per 210 liters of breath within two hours of driving. The State envisions that once it has obtained a chemical breath result substantially exceeding .08, there is prima facie proof of guilt, and conviction of the accused should be more or less assured.  Indeed, drivers producing breath alcohol results of, say, .173 g/210L, are at severe risk of conviction under the State’s system.

Notwithstanding the State’s finely tuned apparatus for trying drivers charged with DUI, Mr. Bussey recently WON A NOTEWORTHY ACQUITTAL in a case with just such a BrAC result, .173 g/210L. Most defense attorneys facing such a test result would be inclined to avoid trial and to accept any meager plea bargain extended by the prosecutor.

The Bussey Law Firm, P.C., however, has for years led the defense bar in a challenge to the State’s system for “certifying” breath test results for admission as evidence at trial. With the State depending so heavily on chemical test results in the prosecution of DUI cases, the courts have tended to grant the State considerable deference in certifying and introducing such evidence. Yet when the State sought to slacken its standards just a bit further, Mr. Bussey had the experience and foresight to hold the State in check, winning exclusion of the evidence and acquittal of the firm’s client.

Under C.R.S. section 42-4-1303, and interpretive case law that has prevailed since 1994, the State has been obliged to certify the proper functioning of its chemical breath testing equipment through attestation of the director of the Department of Public Health and Environment or a designee. In recent years, when Mr. Bussey learned the director had been issuing certifications lacking foundation in fact, Mr. Bussey and his firm conducted evidentiary hearings and raised challenges to such procedures. In response to these strong challenges, the Department sought in later cases to shield its director and other agents from responsibility by issuing putative certifications no longer bearing the Department’s state seal.

Capitalizing on his experience and familiarity with the Department’s growing list of administrative failures, Mr. Bussey raised the first successful challenge to the Department’s attempt to circumvent its burden of certifying evidence. This victory has implications for virtually all of the State’s cases in 2018 involving chemical breath test results, since the Department appears to be using the same procedures state-wide.

The Bussey Law Firm, P.C., continually shares among fellow members of the defense bar information it has gained from litigation, to assist them in securing due process for their clients. In defense work, however, the best and most frequent good results come through constant engagement in emerging and evolving legal controversies. Attorneys at The Bussey Law Firm, P.C., are not desk workers waiting for scraps of the prosecutor’s generosity. They are trial lawyers WORKING AGGRESSIVELY inside courtrooms to promote higher standards of justice and the best possible outcomes for their clients.

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