A jury in La Plata County convicted a man of a felony for violating his bond conditions after police found him intoxicated in a parking lot. As evidence, prosecutors pointed to his bond paperwork, with a check mark next to the phrase “No Alcohol.”

But the state’s second-highest court overturned Jeffrey Jon Hamerly’s conviction last week after finding no proof a judge was the one who checked that box.

Hamerly had appeared in court on a menacing charge, and a judge granted him a personal recognizance bond, meaning he did not have to pay for his pretrial release. The judge told Hamerly that if he failed to appear later, he would be jailed.

Because menacing was not a crime requiring an automatic prohibition on alcohol, the only way Hamerly could have a “no alcohol” condition was if the judge had ordered it. A three-member panel of the Court of Appeals found nothing in the judge’s statements to Hamerly about his bond that would explain where such a condition came from.

Given that the bond paperwork with the “No Alcohol” check mark was signed by a “Deputy Clerk/Sheriff” at the La Plata County jail, the appeals court concluded that employee was the person who added the prohibition, which police later saw when they found Hamerly in the parking lot.

“The jury’s verdict has to be based on guessing, speculation … and basically just assuming that the appearance bond paperwork at the jail wouldn’t have said this unless a judge backed it up with an order,” Deputy State Public Defender Jeffrey Wermer argued to the appeals panel in asking for Hamerly’s conviction to be reversed.

As additional evidence, prosecutors had presented to the jury a register of the court’s actions that contained a note of “TESTING FOR ALCOHOL” on Hamerly’s case. The government argued it was reasonable to conclude that a clerk only wrote that because a judge ordered it.

“Isn’t that a supposition we cannot make?” asked Judge Dennis A. Graham during oral arguments before the panel. “It’s speculation.”

“I respectfully disagree,” responded Assistant Attorney General Shelby Krantz.

“Clerks routinely maintain records,” Krantz continued before Graham interjected.

“Clerks routinely maintain records, but clerks don’t issue bond conditions,” the judge said.

Graham, a retired judge who sat on the panel at the chief justice’s assignment, wrote in the panel’s Feb. 3 opinion that the notation for alcohol testing was not the same thing as an alcohol prohibition.

The crime of violating bail bond conditions requires a person to knowingly commit the violation. In Hamerly’s case, a judge had not ordered him to stay away from alcohol, despite the fuzzy notations on the evidence. Therefore, Hamerly could not have known he was committing an offense, the appeals court reasoned.

The panel vacated Hamerly’s conviction and noted prosecutors could not retry him because of the constitutional prohibition on double jeopardy. Although Hamerly raised other claims on his appeal, and the government acknowledged Hamerly’s trial judge violated the rules of criminal procedure with one of her orders, the appeals panel declined to address those concerns.

The case is People v. Hamerly.