The U.S. Court of Appeals for the 10th Circuit has ruled that the introduction of a man’s other drunk driving convictions as evidence during trial for a similar drunk driving offense was permissible.

“The facts and circumstances of these two convictions demonstrate,” wrote Judge Allison H. Eid, that the defendant “must have been aware of at least two propositions prior to his August 2016 arrest: (1) that drinking compromised his ability to safely operate a vehicle and (2) that driving while intoxicated could place others’ lives at risk.”

In August 2016, Timothy Amos Merritt was driving drunk within the Ute Mountain Ute Reservation in Southwest Colorado, traveling down the road in the opposite direction near the Utah border. He crashed into a family’s vehicle, which was unable to swerve in time. Cecil Vijil died, while his wife and son survived with injuries. Because Merritt was an American Indian and the crime occurred on tribal reservation, he incurred federal charges of second degree murder and assault.

Two officers at the scene both noticed Merritt’s apparent intoxication, even though he denied that he had been drinking. Police found two empty beer cans and 15 full cans in Merritt’s truck, and a toxicology analyst testified at his trial that Merritt’s blood alcohol content was more than twice the legal limit several hours after the crash. Merritt admitted that his intoxication level was “a 5 on a scale of 1 to 10.” 

Prosecutors introduced evidence of Merritt’s three other drunk driving incidents at trial, including one that took place three months after Vijil’s killing while Merritt was released on bond. After a jury convicted him, Merritt argued on appeal that the court should not have allowed testimony about the other violations.

Eid, writing for the three member panel, explained that second degree murder convictions require a showing of malice aforethought, meaning that Merritt knew his conduct posed a risk of death or serious harm but that he did not care. Prosecutors intended for the other convictions to show that Merritt knew he posed a danger by weaving and driving down the opposite lane after he had been drinking.

“[I]f the government had only been permitted to inform the jury of Merritt’s record – stripped of any details,” Eid wrote, “the only inference that arises is an impermissible one: Merritt has a propensity to drive while intoxicated, and he acted in accordance with this character trait when he killed Cecil Vijil.” However, elaborating on the circumstances of the other incidents revealed that Merritt demonstrated a disregard for safety each time he was apprehended for driving drunk. 

The court rejected Merritt’s contention that he was so drunk during the other incidents that he lacked the proper consciousness to understand the risks. It also dismissed the notion that the graphic details of his other arrests were “inflammatory” and meant to establish “callousness” of character for the jury. Instead, the court found the details to be illustrative of Merritt’s attitude toward his conduct.

“Vomiting out the window helps refute Merritt’s own contention that habitual drinkers necessarily tolerate alcohol better than others,” Eid wrote.

Finally, the court upheld the prosecutors’ introduction of his drunk driving arrest after murdering Vijil, saying that because there was “overwhelming evidence of guilt” in the other instances, the addition of the November 2016 arrest did not substantially affect the verdict.

The case is United States of America v. Timothy Amos Merritt.