DATEFILED: June 5, 2017 3: PMCASENUMBER: 2016T169

CountyCourt, GilpinCounty, Colorado

2960 Dory HillRoadBlack Hawk, CO 80422Ph 303. 582.5522

Fax : 303582.3112

THE PEOPLE OF THE STATE OF COLORADO

ACOURTUSE ONLYA

CaseNo. : 2016 T 169

Defendant:

ROBERT FRIEDLANDER Div. : 1

ORDER RE: INTOXILYZER 9000 PROCEEDINGS

THISMATTER is before the Gilpin County Court on DefendantRobert Friedlander ' s

( Defendant ) challenge to the Colorado Departmentof PublicHealth and Environment's

( " CDPHE ) Evidential Breath Alcohol Testing (“ EBAT” ) program . After considering the

evidence and testimony, including credibility, I make the following findings and conclusions.

BACKGROUND AND ISSUES PRESENTED

At issue in this case is the Intoxilyzer 9000 the I 9000 ) , which police agenciesacross

Colorado use to conduct breath tests. The 9000 determines a subject's breath alcohol content

( BAC , which is used to assist in theprosecution of offenses - typically, drivingoffenses

involvingalcohol. The I-9000 s functionality , and certification thereof, iscritically important:

given Colorado law , a person s BAC plays an essential role in all stages of a case, from the

charges that are filed to the punishment that is required by law

Defendant has challenged the I 9000's certification . Extensive hearings, with numerous

witnessesand exhibits, have taken place. Ofparticularimportanceis the testimonyoftwo

people: MikeBarnhill, a formerCDPHE employee, and JeffGroff, a currentCDPHE employee.

As requested by the People, I was initially inclined to limit the proceedings to matters

specific to this case. ' Given Defendant' s allegation of widespread governmentalfraud at

CDPHE, however, I opted to allow these extensive hearings - when that allegation has been

madeand isaccompanied by evidence, ignoringit is notan option.

I will address two issues in this Order:

1. The allegations ofwidespread fraud at CDPHE during the initial certification

process of the 9000 in 2013; and

2 . Theeffect of the signatureof Dr. LauraGillim -Ross, whichhas continued toappearon 1- 9000 InstrumentCertificates, despiteher departurefrom CDPHEin July 2015

ANALYSIS

InitialCertification of the 9000

Defendant claims widespread fraud in the initial certification of the 9000. Defendant

used descriptions such as massive" and " felony fraud, and suggested that this could be the

biggest scandal in the history of alcoholtesting. Defendant' s primary complaint is with a number

of signaturesassociatedwith the I 9000' s initialcertification, which Defendantclaimsare

forgeries .

A . of l act

After a bidding andreview process, CDPHE selected the 9000 for use in breath testing.

The 1-9000 ismanufactured and supported by CMI, located in Kentucky. The 9000 is used for

breath tests by policeagencies across the state .

' is undisputed thatGilpin County ' s 1- 9000 is notsubjectto the vastmajority ofDefendant' s allegations

clear that, atleastinitially, this particularmachinewasproperly certified Thus, the Peopleargued thatDefendant' ssuggestion of fraud atCDPHE wasnotapplicable to this specificmachine Defendant, however, suggested thatCDPHE's conductwas so egregious as to taint theentire EBATprogram . Accordingly, the People's request wasdenied

Facts notaddressed in this Order are irrelevant.

In early 2013, CDPHE began the certification process for the . CDPHE s initial

goalwas to haveeverymachine certified by February 1, . Given manufacturingdefects

which CMIhad to address, this date was moved back to May 1, 2013 .

CDPHE found itself pressed to meetthe May deadline. To speed up the certification

process, personnel who mightnot otherwise have been involved in the certification process

participatedin it, includingCDPHEinternsand employeesofCMI. Although these personnel

were not responsible for the actualcertification ofeach 1- 9000, they did assist in the process

which generated the raw data necessary for certification. CDPHE employees would then review

theraw data , and decide whethereach - 9000 machinemet the standard for certification. If the

machinemet the standard, the CDPHE employeewould certify themachine for use bylaw

enforcementofficersin the field.

As a generality , the certification process wasdesigned to assess the accuracy and

functionality of each - 9000. As relevant to Defendants claimsoffraud in this process, however,

testers were required to verify the functionality of the 1-9000 s inputmechanism . Amongmany

features, the 9000 has a touchscreen requiring the end user-- the law enforcementofficer

administeringa breath test in the field lo enter his or her signature. This signature is then

included in printedmaterials that the - 9000 generates. As shown in the exhibits, this signature is

an officer 's verification of the test. Thus, insuring the functionality of the touchscreen was

necessary before sending the devices into the field .

Verifyingthe touchscreens functionalitywaspartofa tester' s duties. Duringthe final

pre- certification test, referred to as the Final EBAT, the tester would enter a signature on the

touchscreen. The contentofthe signaturewas not important– whatmatteredwas whether the

entry on the touchscreen was accurately transferred to the ' s printout. The entry on the

touchscreen, for purposesof thecertification process, could beanything from a true signature to

an “ X ” to a meaningless drawing. Aslong as the image on the touchscreen matched the image on

the 9000 printout, machine would pass this particular test.

The touchscreen signature for the Final EBAT did not certify an 1-9000 machine for the

field. Instead, certifyingCDPHE employees would review the data generated during the testing

process,which includedthe FinalEBAT and the signatureappearing on it, and then make the

determination on certification. To beclear, the touchscreen signature on the Final EBATisnot

whatcertified machines for use in criminal prosecutions. Instead, certification was dependent on

an independenttwo-stage process, during which the raw data generated during the underlying

process would be reviewed.

After review of the evidence and consideration of the testimony in these hearings, it is

beyonddispute that numeroussignaturesofMikeBarnhillon the FinalEBATprintoutsdonot

matcheach other.Mr. Barnhilltestifiedthat he did notmake these signatures,and that someone

else did. In lightofbothMr Barnhill' s testimonyandthesignaturesthemselves, itis obvious

that someone else, presumptively one of the testers, signedMr Barnhill' snameon the

touchscreen

Nevertheless, thesetouchscreen signatureshave no legal significance oreffect as

signatures on an officialdocument. They do notcertify anything, and their only significance lies

in verification ofthefunctionality of the 9000 touchscreen and printout. So long as the

Testing the touchscreen wasamong severalother tests performed for theFinalEBAT, which was performed as a

testwould be completed in the field with the tester acting as the administering law enforcementofficer,

EBAT printout accurately displayedwhatever was entered into the touchscreen - even ifitwas a

fakeBarnhillsignature – the machinewould pass thatportion of the certificationprocess. Put

differently , a tester ' s decision to sign Barnhill' s name is inexplicable, and no one has even

attemptedan explanation forit- butthese signatures have no impact beyond verifying the

touchscreen s functionality .

Given the obvious discrepancies between these signatures, these proceedingswerelikely

inevitable. Any reasonable person would look at these signatures , notknowingwhat they were

used for, see that they did notmatch, and have immediate concerns .

Nevertheless, after hearingMr. Groff' s testimony, which is credible, I find his

explanations reasonable. The FinalEBATtouchscreen signatures are not fraudulent, and I

accordingly do notfind that CDPHE, or itsagentsor employees, committed fraudor any other

wrongdoing in the initialcertification of the 9000.

II. The 1- 9000 InstrumentCertificate

Each 9000 in the state is capable of printing an Instrument Certificate. Instrument

Certificate verifies that the machine is in working order. In this case , the Instrument Certificate

suggests that the Gilpin County 9000, serialnumber 90 -000318, was certified for the period of

March 17, 2016 to March 17, 2017 It contains a statement regarding certification, the 1- 9000 ' s

serial number , the State seal, and a signature .

The signature belongs to Dr. Laura Gillim -Ross, whowas formerly the Director of

LaboratoryServices atCDPHE. Dr. Gillim -Ross, however, leftthe employ ofCDPHE in July

With each test performed in the field , the 9000 prints four separate documents : a Subject Test Report, anInstrument Performance Report, a Maintenance History Record , and a certificate attesting to themachine' s properfunction . Only this last certificate is ofconcern in this case , and for purposes ofclarity itwill be referred to as the

" Instrument Certificate .

2015. Her signature, however,has continued to appear on InstrumentCertificates in the time

since. This includesthe InstrumentCertificatein the case sub judice, showinga certification

renewaldate ofMarch 17, 2016 , a testwhich occurred in May 2016. Both the certification

renewalandthe test occurredafterDr. Gillim- Ross left CDPHE. Given this inaccuracy,

Defendant contends that this InstrumentCertificate is fraudulent.

A . Findingsof

Each 1-9000 prints an InstrumentCertificatewith each test performed. The Instrument

Certificate verifies that the 9000, which performsself-checks aspart of its normaltesting

procedure, was properly functioning at the timeof a test. Provided that the I 9000's self-checks

show it to be functioning properly , the 9000 automatically generates the Instrument Certificate

andallof the information in it, includingsignatures.

In this case, the InstrumentCertificatebears serialnumberof themachineused, the

State Seal, and the signature ofDr. Gillim -Ross, “ Director Laboratory Services Division .

The Instrument Certificate verifies that the machine in question was certified from March 17,

2016 to March 17, 2017. Dr. Gillim -Ross, however, was not employed at CDPHE at these times,

having left in July 2015 . Dr. Gillim - Ross was not involved, in any way, with certification of this

- 9000 for this particular time period .

Mr.Groff, whom I find credible, testified that the signature on InstrumentCertificates is

generated by the 9000' s software.Mr. Groff testified that changingthe signature requiresa

softwareupdate Groff testified thatCDPHEwasawareof the need to removeDrGillim

Ross signature as soon as she leftin July 2015.Mr.Grofftestified that CDPHE deliberately

chose notto the InstrumentCertificate signature and instead opted to wait to includethis

updatein a largersoftware upgrade CMIwasdeveloping. .Grofftestified thathewas

in constant communication with CMI regarding this update, and knew that CMIwas “ never

quick ;" Mr. Groff also testified that this update ultimately took abouttwo and a half years,

meaningthatwhen Dr. Gillim -RossleftCDPHE, the updatehad alreadybeenin developmentfor

about a year. Mr. Groff testified that CDPHE continued to wait on the larger software upgrade to

update the Instrument Certificate signature. Mr. Grofftestified that Dr. Gillim - Ross ' signature

wasnotremoved until the third week of February 2017 - approximately eighteen monthsafter

Dr. Gillim -Ross left CDPHE. .Grofftestified that,Dr. Gillim -Ross' predecessor

CDPHE, ittook “ a couplemonths” to removeand replace thesignature.

Ofnote, Mr. Groff also testified that the failure to update the signaturehas notaffected

theproperfunction of the 9000 machines. Rather, becausea properly functioning1- 9000

automatically generates an InstrumentCertificate, it follows that themachines remain reliable,

albeit printing an inaccurate Instrument Certificate.

I findasfollows:

Dr.Gillim -Ross left CDPHEin July 2015, did notapprove the InstrumentCertificate in this case, and wasnot involved in any way with its issuanceorapproval, norwas she employed by CDPHE duringany time frames involvedin this case, including the certification period involved here ;

CDPHE wasaware that the 9000machines continued to show Dr GillimRoss as approving the Instrument Certificates after her departure;

Grofftestified that this decision wasmadebecause CMIwas so faralongin the larger upgrade. Mr. Groffalso

testified that, hadheknown eighteenmonthswould passbeforethe signaturewouldbe updated, the decision wouldlikely have been differentAlthough notat issue in this case,Mr. Groffsuggestedthatratherthan update Dr. Gillim -Ross signaturewith

another, the signaturelinewas simply removed Thus, InstrumentCertificatesmaynow contain only the State seal." A couple months" also seems to be an inordinately longperiod of time to update a signature on an official

certificate, although itis certainly faster than eighteenmonths.

CDPHE was aware ofthe need to remove and update Dr. Gillim -Ross'signature;

CDPHE deliberately chose not to immediately remove andupdate Dr. GillimRoss signature ;

CDPHE instead chose to wait to remove and update Dr. Gillim -Ross

signature, as part of a larger upgrade;

As a result of CDPHE ' s decision , a signature reading " Laura Gillim -Ross,

PhD, Director Laboratory Services Division appeared on Instrument

Certificates for approximately eighteen months after she was no longeraffiliated with CDPHE;

CDPHE persisted in not updating the Instrument Certificate signature despite

the extended passage of time;

CDPHE acted despite knowing that the signature could be updated sooner ,and having actually carried out signature updates more quickly in the past;

Because Dr. Gillim -Ross had no affiliation CDPHE at any times relevantto the Instrument Certificate in this case, this Instrument Certificate is

inaccurate , misleading , and deceptive , in that its contents are an impossibility ;

The signature of a Doctor of Philosophy, simply by virtue of that title and

particularly in scientific fields, frequently receives a higher degree of

credibility;

CDPHE 's failure to update the Instrument Certificate signature isunreasonable ;

CDPHE exercised poor judgment in knowingly allowing the proliferation ofthese Instrument Certificates for eighteen months, and alone is responsible forthis decision

Although CDPHE did act purposefully with full knowledge of the situation ,

CDPHE ' s intent was not to manipulate , deceive, or falsify ; and

is no evidence that the failure to timely update the Instrument

Certificate signature has negatively impacted the 1- 9000 ' s reliability or results.

I makethis observation pursuant to C . R E . 201 iscommon knowledge.

B . Conclusions of Law

1. LegalBackground

As stated above, a person ' s BAC is an important component ofalcohol- related

driving offenses, and plays a leading role at every stage of a case. The BACdetermines

the charges thatare filed. The BAC can determine an accused sbond or bondconditions.

A certain BAC legally requires a mandatory minimum sentence and, in virtually all

instances, a judge will consider the BACwhen imposingsentence. Thus, the importance

of an accurate BAC and the chemicaltest which provides it, cannot be overstated.

In order for a chemical test to be admissible , the Peoplemust show that the

equipment used was in proper working order. C . R . S. 42 -4 -1301 ) )( II); People v.

Bowers, 716 P.2d 471, 473 ( Colo . 1986); see also Long v. Colo. Dep' t of Rev. , 296 .

329, 335 ( Colo. App. 2012) . In this regard , C . R. S . 42-4 - 1303 provides as follows:

Official records of relating to certification of breath test instruments . .and copies thereof, attested by the executive director . the director' s deputy

and accompanied by a certificate bearing the official seal for said department that[CDPHE custody of said records, shall be admissible in all courts of record

and shall constitute facie proof of the information contained therein .

Similarly , C . R .E. 902 provides that public documents, with proper signatures, are self

authenticating

Thus, if CDPHE hasa properly executed certification , a copy accompanied by a

certificatewith the officialseal is automatically admissible into evidence, and will serve as

virtually irrefutable proof that an -9000 machine was properly functioning. however, there is

properly executedInstrumentCertificatewould meetthis standard.

nota propersignature or attestation, neither C . R . S . $ 42 - 4 - 1303nor C . R .E . 902 allow for its

admission.

Consideringthe totality ofthe circumstances, a signature ismorethan a pro forma

requirement it is not present simply for the sake of appearance . Instead, a proper signature is a

statutorily -required prerequisite to the admissibility of an Instrument Certificate which in turn , is

a virtualprerequisite to the admission of a person' s BAC into evidence. Assuch, the signatureon

an InstrumentCertificate cannotbe treated simply a matterof form .

Independently of the statutory provisionsfor breath test instruments, C . R .E. 403 provides

that misleading evidence is not admissible . Broadly, the intent of C . R . E. to prevent the

introduction ofevidence thatwould underminethe fairness and integrity of judicial proceedings.

Finally, DueProcess requires fundamentalfairness in all government actions-

particularly those which mightdeprive a person ofhisor her freedom . A.M . A. C 296 P.3d

1026, 1037(Colo. 2013) (core concern of Due Process is fundamental fairness).

2 . The Instrument Certificate is not Admissible in this

First, Dr. Gillim -Ross wasnot an employeeof CDPHEat any timerelevant to this case.

She was not an employee ofCDPHE at the timeof the offense , nor was she an employee on

March 17, 2016 , when the - 9000 in this case wasrecertified. Therefore, the Instrument

Certificate doesnotcontain the attestation of CDPHE' executive director or a deputy , and there

does notappear to beany other documentwhichmightsatisfy these statutory requirements.

Neither C . R . S . $ 42- 4 - 1303 nor C . R . E . 902 allow for the admission ofthis InstrumentCertificate.

. S . 42 4- (6 ) consequences for not following and regulations, does lessenthe burden of proving the proper liinction of testing equipment." the breath test in this case occurred during a provious period, when -Ross was still atCDPHE atthe time ofrecertification , the likely beadmissible even the iest

occurred after she left.

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Second this InstrumentCertificate is, atbest,misleading. It contains the signature ofa

person thatdid not approve it. This signature gives the Instrument Certificate falseweight in two

different ways: 1) it suggests that itwas approved by Dr. Gillim -Ross when itwas not; and 2 ) it

appropriatesthemoral authority attached to a DoctorateofPhilosophywhen theholder thereof

was in noway involved in the issuance of the Instrument Certificate. C .R . E . 403 bars admission

of the InstrumentCertificateunderthese circumstances.

Third, CDPHE' s decisionshave created evidence that is notaccurate. Noone disputes

this inaccuracy. Although CDPHEdidnot have any evil intent, this inaccuracyisnevertheless a

predictableresultof CDPHE s purposefulconduct. Due Processcannot survive if false evidence

resulting from intentional governmentconduct is admitted in an effort to deprive a person of

freedom .

For these reasons, the Instrument Certificate isnot admissible to show that the 1- 9000

was properly functioning in this case. Nevertheless, if the People can show that the was

properly functioning through other means, its resultsmay be admissible. Although generally

understood as a person' s individualright, the People are also entitled to DueProcess and

fundamental fairness. Itwould be folly to exclude the results of a properly functioningmachine,

just becauseofa signature People v. Walker, 318 P. 3d479 485 (Colo. 2014) ( refuseto

elevate form over substance Therefore, if the People can prove that the 9000 was working

properly withoutusing the InstrumentCertificate, the BAC resultmight beadmissible.

" , this is similar to spoliation. An intentto destroyevidencein bad faith is irrelevant Instead, spoliationcan be sanctionedwith an adverse inference instruction, when a person intentionally destroysevidence.

Aloi U. . . . Corp. , 129 P. 3d 999, 1004 (Colo. 2006) , the issuehereisnotwhetherCDPHEacted in

bad faith, but rather thatCDPHEallowedthis to happen atall.

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CONCLUSIONAND ORDER

This situation is the exclusive result ofCDPHE' s decision to consciously disregard truth

andaccuracy in anofficialdocument, in favorof economizingon softwareupdates to the I- 9000.

While not intentionallyseeking to mislead, CDPHE sknowing failure to take immediate steps to

remove and update the signature on this InstrumentCertificate has created evidence that is

misleading, and that is something other than the truth. Such evidence, even though notthe result

ofbad faith , cannotbe allowed , norcan such poor decision -making by the State be condoned.

If a person is to stand convicted that conviction will restupon the commitment of the

Government, in its entirety, to absolutetruth and honesty - and thusto integrity. Whilemistakes

in this processcan and do happen, weas a societymust do all thatwe can to limit both their

occurrence and their impact

WHEREFORE , after a full and fair consideration of therecord and the arguments, I find

and order as follows:

1. No fraud existed during the initial certification of the 9000 machines ;

2 . The Peoplemay notintroduce the InstrumentCertificate in this case;

3. If thePeoplecan show thatthe 9000 was in properworking orderwithout

using the InstrumentCertificate, the BAC resultsmay beadmissible.

DONE ANDDATEDthis day June, 2017, in Gilpin County.

BY THE COURT:

Judge

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