Although the prosecution’s conduct was “close to the line,” a panel of Colorado’s Court of Appeals decided by 2-1 that the government did not improperly place the burden on a defendant to prove his innocence at trial.

The state’s second-highest court considered whether an Arapahoe County prosecutor’s comments to a jury so fundamentally undermined the fairness of Juan Hernandez-Hernandez’s trial that they required reversing his conviction for driving under the influence. The majority of a three-judge panel concluded the prosecutor had not shifted the burden away from the government to prove its case beyond a reasonable doubt.

Hernandez-Hernandez’s jury “was repeatedly instructed on the prosecution’s burden of proof throughout the trial,” wrote Judge Sueanna P. Johnson in the panel’s Feb. 3 opinion. “We must presume the jury understood and followed these instructions.”

The dissent, however, believed the government may have talked the jury into incorrectly thinking it was Hernandez-Hernandez’s responsibility to show he was not, in fact, driving drunk.

The case implicated a specific feature of Colorado’s DUI law: A person who chooses to drive has given his or her consent to blood or breath tests of alcohol levels when an officer has probable cause to believe the driver is under the influence. 

Typically, if a person asserts his or her constitutional right not to self-incriminate, the government may not use the refusal to talk as evidence of guilt. The DUI law, in contrast, does permit prosecutors to tell jurors at trial about a person’s refusal to take a test for blood alcohol content.

Police arrested Hernandez-Hernandez after he failed a roadside sobriety test. He refused to take a chemical test, even after learning about the consequences of his refusal. A jury convicted him of the felony and Hernandez-Hernandez received a six-year sentence.

At the 2017 trial, an unnamed prosecutor used a hypothetical example during voir dire – the segment when both parties can question potential jurors. The prosecutor requested jurors to imagine checking out after a shopping trip to Target, but setting off the theft alarm at the door. 

The prosecutor asked jurors to picture someone coming up to the shopper “and they just want to see your receipt. Would you show them the receipt, or say, No, I’m going to leave?”

After jurors all indicated they would show their receipt, the prosecutor asked why they would do that. One juror believed a person would not want to show the receipt if “you stole something.”

Another potential juror, in a comment that went directly to the DUI case, volunteered that a defendant’s refusal to take a blood alcohol test would be “a big factor in my decision, like almost overwhelming.”

During closing arguments, the prosecution displayed PowerPoint slides referring to the same Target example.

“Recall jury selection / ‘Why wouldn’t someone show the receipt?’ / ‘You stole’,” read one of the slides.

“Mr. Hernandez checks out of Target, he approaches those security devices, he paid, he walks through them, the buzzer is going off and [the officer] is saying, Let me see your receipt,” the prosecutor said, placing the defendant in the hypothetical example. Hernandez-Hernandez, in refusing the chemical test, the prosecutor concluded, decided not to show the “receipt.”

The defense attorney objected, saying the prosecutor put the burden on Hernandez-Hernandez to “have to take a test, or to have to show the jury something he is not required to.”

In reviewing Hernandez-Hernandez’s appeal, the panel’s majority determined that because the DUI law allows for evidence about a driver’s refusal to take a chemical test, it is “fair game” to question what that refusal means.

Johnson, writing for herself and Judge Craig R. Welling, explained that the prosecutor “did not specifically argue or intend to establish during voir dire or closing argument that Hernandez had the burden of proof. Instead, the Target receipt hypothetical, while inartful, sought to elicit from the jurors how they would evaluate a person’s consciousness of guilt if a person refuses to produce a receipt.”

She added that the line of questioning, “though close to the line,” conformed with the requirement that the government had to prove Hernandez-Hernandez guilty beyond a reasonable doubt, and Hernandez-Hernandez did not have to prove anything.

Judge Terry Fox disagreed, believing the prosecutor had equated Hernandez-Hernandez’s failure to take the chemical test to the shopper’s failure to show their receipts – which jurors initially acknowledged was the behavior of a guilty person. Under that thinking, the obligation was on the defendant to prove his innocence.

Because the prosecution had planted the idea that Hernandez-Hernandez had a responsibility to take a test if he were innocent, Hernandez-Hernandez’s refusal meant “he deprived the jury of the only information that would prove [his innocence] – the test he twice refused,” she wrote.

The appeals panel did, however, send Hernandez-Hernandez’s felony conviction back to the trial court with instructions to lower the conviction to a misdemeanor or allow the prosecutors to retry him. That has been the outcome in DUI cases since the Supreme Court in 2020 interpreted the level of evidence needed to find someone guilty of felony DUI in a way that ran counter to the general practice of the trial courts.

The case is People v. Hernandez-Hernandez.