(1) When evidence is seized in so small a quantity or unstable condition that qualitative laboratory testing will not leave a sufficient quantity of the evidence for independent analysis by the defendant's expert and when a state agent, in the regular performance of his duties, can reasonably foresee that the evidence might be favorable to the defendant, the trial court shall not suppress the prosecution's evidence if the court determines that the testing was performed in good faith and in accordance with regular procedures designed to preserve the evidence which might have been favorable to the defendant.
(2) The trial court shall consider the following factors in determining, pursuant to subsection (1) of this section, whether the state has met its obligation to preserve the evidence:
Whether or not a suspect has been identified and apprehended and whether or not thesuspect has retained counsel or has had counsel appointed for him at the time of testing;
Whether the state should have used an available test method more likely to preservethe results of seized evidence;
Whether, when the test results are susceptible to subjective interpretation, the stateshould have photographed or otherwise documented the test results as evidence;
Whether the state should have preserved the used test samples;
Whether it was necessary for the state agency to conduct quantitative analysis of theevidence;
Whether there is a sufficient sample for the defendant's expert to utilize for analysisand the suspect or defendant has made a specific request to preserve such sample;
If paragraph (f) of this subsection (2) cannot be complied with, in view of the smallamount of evidence, or when the state's duty to preserve the evidence would otherwise be enhanced, whether it was reasonable for the state to have contacted the defendant to determine if he wished his expert to be present during the testing.
With regard to testing performed on blood, urine, and breath samples which form thebasis for a conclusion upon which a statutory presumption arises, it is hereby declared to be the public policy of the state of Colorado that when the prosecution's evidence of test results is sought to be excluded from the trier of fact in a criminal proceeding because the testing destroyed evidence which might have been favorable to the defense, it shall be open to the proponent of the evidence to urge that the testing in question was performed in good faith and in accordance with regular procedures designed to preserve the evidence which might have been favorable to the defense, and, in such instances, the evidence so discovered should not be kept from the trier of fact if otherwise admissible.
For all other types of blood analysis, breath analysis, and urine analysis and for laboratory testing, such as serial number restoration, firearms testing, and gunpowder pattern testing, it is hereby declared to be the public policy of the state of Colorado that, when the prosecution's evidence of test results is sought to be excluded from the trier of fact in a criminal proceeding because of the destruction of evidence upon which the test was performed, it shall be open to the proponent of the evidence to urge that the testing in question was performed in a reasonable, good faith belief that it was proper and, in such instances, the evidence so discovered should not be kept from the trier of fact if otherwise admissible.
Any report or copy thereof or the findings of the criminalistics laboratory shall bereceived in evidence in any court, preliminary hearing, or grand jury proceeding in the same manner and with the same force and effect as if the employee or technician of the criminalistics laboratory who accomplished the requested analysis, comparison, or identification had testified in person. Any party may request that such employee or technician testify in person at a criminal trial on behalf of the state before a jury or to the court, by notifying the witness and other party at least fourteen days before the date of such criminal trial.
In no event shall evidence be suppressed which results from laboratory testing performed before identification of a suspect for the sole reason that the later identified suspect or his attorney was not present at the time of the testing.
This section is necessary to identify the characteristics of evidence which will beadmissible in a court of law. This section does not address or attempt to prescribe court procedure.
Source: L. 84: Entire section added, p. 483, § 1, effective July 1. L. 2012: (5) amended, (SB 12-175), ch. 208, p. 844, § 61, effective July 1.
Cross references: For statutory presumptions in alcohol-related traffic offenses, see §§ 18-3-106, 18-3-205, and 42-4-1301.