One year after the Colorado Supreme Court laid down a new standard for prosecuting felony drunk driving cases and prompted the reversal of dozens of convictions, the justices have now clarified that prosecutors may, in fact, seek to try those defendants again for driving under the influence.

It does not violate the constitutional protection against double jeopardy, the court decided on Monday, for district attorneys to again file felony charges against people whose convictions were downgraded to misdemeanors after the November 2020 decision in Linnebur v. People.

“[W]here a legal error occurs in the trial court, double jeopardy typically does not bar retrial,” wrote Chief Justice Brian D. Boatright in the Dec. 20 opinion.

The Colorado Criminal Defense Bar blasted the decision and hinted that it would be worthy of further appeal.

“We are very disappointed that the court did not uphold the very basic and old principle of law that the state should only be able to take one shot at getting a conviction,” the legal organization said. “We hope that there is a way that the U.S. Supreme Court might reverse this error.”

The Linnebur case clarified the level of proof needed to convict someone of a felony DUI, rather than a misdemeanor. A 2015 change in state law established the more serious offense for someone who had at least three prior DUI or driving while ability impaired convictions. The subsequent practice was to treat the prior offenses as a sentence enhancer, with trial judges effectively transforming a misdemeanor conviction into a felony after establishing the existence of the three prior DUIs.

In Linnebur, a majority of the court jettisoned that method, saying that prosecutors must instead prove the prior offenses to a jury beyond a reasonable doubt.

“That is not what we meant,” said Sen. John Cooke, R-Greeley, following the decision. Cooke was one of the legislative sponsors of the felony DUI law. “The intent was to say if you have three misdemeanor DUIs, then on your fourth one, it’s a felony, so it becomes a sentence enhancer.”

As a result, the state’s second-highest court ordered the reversal of felony DUI convictions to misdemeanors. But the Court of Appeals and the Supreme Court were silent about whether the state and U.S. constitutions would allow a prosecutor to charge a defendant again with felony DUI and seek a second trial.

The First Judicial District Attorney’s Office, which covers Jefferson and Gilpin counties, charged Kevin Wayne Viburg again for a felony DUI offense from 2016. The Court of Appeals previously reversed Viburg’s felony conviction in 2020, but earlier this year a Jefferson County judge ruled that District Attorney Alexis King could proceed with a second trial.

The Supreme Court reviewed the trial court judge’s ruling directly. Viburg’s lawyer argued that the district attorney should not receive a second chance at presenting evidence to the jury that it did not offer at the first trial, and raised logistical questions about what a second conviction would mean for Viburg’s existing misdemeanor.

“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?” Deputy State Public Defender Meredith O’Harris wrote to the court.

The Supreme Court’s decision did not resolve those questions. Boatright instead explained that the purpose of the constitutional prohibition against successive prosecutions for the same offense was to avoid putting a defendant through extra expense and anxiety. But he drew a distinction between an acquittal by a jury and someone whose conviction is reversed following an error in the proceedings.

“Here, there was no acquittal. And where the defendant is not acquitted, double jeopardy does not bar retrial,” Boatright wrote.

Viburg also pointed out that he still retains his conviction from the criminal conduct at issue, and that the district attorney had the opportunity to prove his prior convictions to the jury beyond a reasonable doubt, but did not. The Supreme Court disagreed with that interpretation, noting the original trial court judge applied the sentence enhancement to Viburg’s conviction instead of turning the question of the prior offenses over to the jury.

“Here, the jury didn’t acquit Viburg of felony DUI because it never actually considered whether he was guilty of felony DUI,” Boatright explained. “As a result, the prosecution never received the opportunity to present the evidence to the jury, which didn’t render a verdict on felony DUI at all. Therefore, that misdemeanor DUI is a lesser included offense of felony DUI has no bearing on whether the prosecution may retry Viburg for felony DUI.”

The criminal defense bar, in its statement, criticized the decision for allowing the First Judicial District Attorney’s Office to “take a second shot at convicting” Viburg.

“It really is fundamentally unfair to let them keep trying until they get it right,” the organization said.

The Colorado District Attorneys’ Council, which represents the state’s elected prosecutors, declined to comment on the case.

When the Supreme Court originally decided Linnebur, the majority of justices had significant concerns about allowing a jury to convict someone of a misdemeanor, with a judge then elevating the conviction to a felony through sentencing. Felony convictions not only carry longer sentences, but also consequences for firearm ownership, voting while incarcerated and working in certain professions.

But the two dissenting members of the court, Justices Monica M. Márquez and Carlos A. Samour Jr., warned about other manifestations of unfairness to defendants that could result from the ruling, even beyond the possibility of a second trial.

“Today’s decision strikes me as an example of ‘be careful what you wish for,'” Márquez wrote.

M. Colin Bresee, a criminal defense attorney in Denver, agreed with that sentiment.

“The expression ‘be careful what you ask for’ applies,” Bresee said. “The Colorado Supreme Court is not planning on lightening up on DUI laws any time soon. It was folly to think otherwise. Unfortunately, [Viburg] will now likely be a convicted felon.”   

The case is Viburg v. People.