When the Colorado Supreme Court decided last year in favor of a higher threshold for proving felony drunk driving offenses at trial, the ruling resulted in dozens of DUI cases being sent back to the lower courts with instructions to reverse the felony convictions.

But now that First Judicial District Attorney Alexis King is attempting to try one man a second time for his offense, the members of the Court must decide whether the prohibition on double jeopardy prevents her and prosecutors around the state from doing so.

On Tuesday, the justices heard oral arguments in the case of Kevin Viburg, who served a sentence for felony driving under the influence after prosecutors charged him in 2016 and a jury found him guilty. DUI is a misdemeanor in Colorado, unless a person has at least three prior convictions. Then it becomes a felony, with a correspondingly harsher sentence.

The procedure in Viburg’s case — and many others — was for the jury to render a guilty verdict for misdemeanor DUI beyond a reasonable doubt. Afterward, the trial judge determined whether, by a preponderance of the evidence, Viburg had three prior convictions. The judge then enhanced the sentence to a felony, which was the intent of the lawmakers who sponsored Colorado’s felony DUI law.

Then in November, the Supreme Court struck down that practice. By a 4-2 decision in Linnebur v. People, the justices concluded that the prosecution needed to prove the existence of the prior convictions to the jury, not the judge. In doing so, the Court left unanswered the question of whether it was legal for the government to seek a second trial.

“This is unique: the defendant served the full sentence and here we are, facing the possibility of putting the defendant through another trial,” observed Justice Richard L. Gabriel during oral arguments.

Earlier this year, a Jefferson County District Court judge denied Viburg’s motion to dismiss the felony DUI charges against him for the same 2016 offense. Viburg appealed directly to the Supreme Court, citing the general constitutional protection against being prosecuted twice.

“We have a valid verdict in this case. We have an untouched, valid verdict in this case,” Deputy State Public Defender Meredith O’Harris told the justices, referring to the fact that Viburg still stands convicted of a misdemeanor, with a reversal only of his sentence enhancement.

She argued that double jeopardy prohibits the government from seeking a second trial to get another opportunity to present evidence it did not offer at the first trial. Moreover, there were questions about what another conviction would mean logistically for Viburg.

“Would a second verdict override, or merely supplement, the first conviction? Does the original verdict have any significance at a successive jury trial for the same offense? Which conviction prevails?” she wrote in her court brief.

By contrast, the government believed prosecutors should have “one fair opportunity” to present their evidence to the jury about all elements of an offense — which now includes the proof of three prior convictions.

“I want to touch on the idea of governmental oppression,” said Colleen R. Lamb, appellate deputy district attorney in King’s office. “You see this theme running through double jeopardy cases. And the courts have determined that in situations where people have not had the full opportunity under the correct legal standard to present their case, that is not an example of governmental oppression.”

Lamb framed a retrial instead as an “opportunity” for proceedings that are free from legal error.

“From the defendant’s perspective, it certainly feels like governmental oppression because he gets run through the mill twice,” responded Justice William W. Hood III. 

Although double jeopardy can bar retrials for certain reasons, like when evidence is insufficient to sustain a conviction or the government violates the speedy trial deadline, the Court of Appeals regularly orders new trials in instances where a trial court made a procedural error. As recently as September 2, a panel of appellate judges held off on answering the double jeopardy question in a DUI appeal, noting the Viburg case would soon be before the Supreme Court.

The case is People v. Viburg.