The Colorado Supreme Court on Aug. 19 announced it will review whether prior convictions in a felony DUI case must be proved before a jury beyond a reasonable doubt or whether they can be determined by a judge under a lower burden of proof.
The Supreme Court’s decision could affect the cases of potentially hundreds in Colorado who have been convicted or charged under a 2015 felony DUI law targeting those with at least three prior drinking and driving convictions.
UNDER THE INFLUENCE
Charles Linnebur was arrested in Strasburg, Colorado, on suspicion of driving under the influence of alcohol on Feb. 2, 2016. A blood test showed his blood alcohol level exceeded the presumptive level for impairment, according to court documents.
A jury in Arapahoe County found Linnebur guilty of driving while ability impaired and DUI per se, a charge that applies to those whose blood alcohol content exceeds the legal limit, even if their driving is not unsafe.
A separate hearing before a judge was then held to determine whether Linnebur should be convicted under a 2015 law that made fourth and subsequent drinking and driving offenses a felony. Linnebur’s case raises the question of how a court must determine whether the three-strikes rule applies.
Prosecutors provided certified copies of Linnebur’s three prior impaired driving convictions, and a trial court judge concluded that evidence proved that Linnebur had at least three prior convictions.
Linnebur appealed, arguing that the prosecutor should have been required to prove the fact of his prior convictions beyond a reasonable doubt before a jury. The defense claimed in its appeal that Linnebur’s constitutional right to due process was violated because a judge, rather than a jury, evaluated the proof of his prior convictions, which only had to meet a preponderance of the evidence standard.
ELEMENT OR ENHANCER?
“The fundamental question we must answer is whether the legislature intended the fact of a prior conviction to be an element of the DUI offense or a sentence enhancement to increase the punishment for a fourth or subsequent DUI offense,” the Court of Appeals wrote in its Nov. 8, 2018, opinion.
An element of the offense must be proved beyond a reasonable doubt before a jury, while sentence enhancers are held to the lower preponderance of the evidence standard and can be decided by a judge.
The state argued the U.S. Supreme Court and the Colorado Supreme Court had repeatedly affirmed that prior convictions need not be proved beyond a reasonable doubt to a jury.
Linnebur’s defense argued that the state legislature intended prior convictions to be considered an element of the offense because the provision that classifies a fourth offense as a felony appears in the same subsection of the statute that defines DUI and DWAI crimes.
Ultimately, the Court of Appeals rejected Linnebur’s argument. In its order affirming the trial court’s decision, the Court of Appeals wrote, “To determine whether the prior convictions are substantive elements of the felony offense or sentence enhancers to the misdemeanor offense, we ask whether ‘the defendant may be convicted of the underlying offense without any proof of the prior conviction,’” quoting its decision in another 2018 felony DUI case, People v. Gwinn.
The Court of Appeals concluded that under Colorado’s DUI statute, a defendant may be convicted of driving under the influence independent of proof of prior convictions, and therefore prior convictions are not an element of the offense.
UP FOR REVIEW
On Aug. 19, the Colorado Supreme Court announced it will review Linnebur’s case to determine whether the Court of Appeals was wrong to interpret the felony DUI provision as a sentence enhancer, rather than an element of the offense. It will also consider whether prior DUI convictions must be proved beyond a reasonable doubt to a jury and, if a jury determination was required, whether the evidence in Linnebur’s case was sufficient to prove a fourth or subsequent offense.
18th Judicial District Attorney George Brauchler, which includes Arapahoe County, where Linnebur was originally tried, said he doesn’t read too much into the fact that the state Supreme Court has taken up the case.
“It’s coming up because the defense bar hates the idea of people going to prison for driving drunk, even if it’s their eight-billionth time,” he said.
“[Linnebur’s lawyers] are trying to figure out a way to call into question the entire legal framework of felony DUI so that they can cause further delay in its implementation or make it harder on prosecution,” he said, acknowledging that they have an ethical duty to “zealously” defend their client.
He said he doesn’t expect the state Supreme Court to be swayed to overturn the lower courts’ rulings, but the court may be taking the case to clear up or prevent further confusion about the felony DUI law.
Brauchler said that while the felony DUI statute “could be clearer,” the courts have so far agreed with the prosecution’s interpretation that prior convictions should be treated as a sentence enhancer.
Denver DUI defense attorney Jay Tiftickjian, on the other hand, thinks there is ambiguity in how the law is worded.
“It would not be a surprise if the legislature did go back in the future, depending on how this case plays out in the Supreme Court, as to looking at how that statute was written,” Tiftickjian said.
Tiftickjian said the bigger picture is that if prosecutors want to be able to convict someone of a crime that could result in up to six years in prison and being branded a felon, they should have to meet the highest possible burden of proof.
“Prosecutors should be willing to accept that burden if they want to charge people with felonies,” he said.
Tiftickjian said that in his practice, he often sees DUI convictions on driving records that are not true convictions. For example, a driver may be charged with a DUI but then not go to court, which the DMV will record as a default conviction.
“The person never went to court, the person never entered a plea, there was no finding made against the person. So, it’s not a conviction,” he said, adding that the danger in how the law has been interpreted so far is that records like these can be submitted to courts and held to a lower standard while resulting in a felony conviction.
Brauchler said that if the Colorado Supreme Court ends up deciding to treat prior convictions as elements of the crime to be decided by a jury, it would likely require a bifurcated trial process for future cases.
If the state Supreme Court overturns the previous rulings, it could also affect dozens or even hundreds of convictions since Colorado adopted the felony DUI legislation four years ago, according to Brauchler. He said that in the 18th Judicial District alone, there have been 24 felony DUI convictions since 2015.
“Depending upon how the Supreme Court rules, it would undo, in essence, the convictions on all 24 of those cases,” he said.
— Jessica Folker, JFolker@circuitmedia.com