Pueblo County prosecutors failed to prove a defendant was “in custody” at the time she allegedly assaulted a sheriff’s deputy, the state’s Court of Appeals ruled on Thursday in overturning the conviction.

Alicia Antonia Martinez is serving a six-year sentence for allegedly striking a deputy with her vehicle as she evaded law enforcement. Prosecutors charged her under the law that criminalizes “violently (applying) physical force” against a peace officer while “in custody.” A jury found her guilty of the offense.

But a three-judge panel for the Court of Appeals noted the purported assault occurred during a vehicle chase in which Martinez continued to resist arrest. She was only in custody after Pueblo County Deputy Jason Hanratty shot her and ended the pursuit.

“Indeed, she was literally driving away from them at the time Hanratty’s hand grazed her vehicle,” wrote Judge Terry Fox in the panel’s March 2 opinion. “While the officers went to great lengths to stop Martinez, they were unable to effectuate an arrest until she was wounded and ceased driving.”

On the night of Jan. 13, 2019, a Fremont County sheriff’s deputy attempted to pull Martinez over for a vehicle infraction, but she drove off, prompting a pursuit into Pueblo County. Other officers joined and one of them rammed her vehicle in a semi-rural part of the county, temporarily halting it.

Hanratty, who was under the mistaken belief that Martinez had hit a deputy, got out of his car and drew his gun. Martinez accelerated near him and Hanratty fired multiple rounds as she passed by. The bullets injured Martinez and killed her passenger, Amiliano Apodaca. Pueblo County’s district attorney later deemed Hanratty’s actions justified.

Although the summary of Hanratty’s interview to investigators did not mention Martinez striking him, prosecutors believed the body-worn camera video showed Hanratty reaching his arm toward Martinez’s vehicle as she drove by. The contact between the deputy and the vehicle was the alleged assault.

On appeal, Martinez challenged the notion that she was in custody or that Hanratty potentially touching the vehicle amounted to her “violently” applying physical force.

“Officers never handcuffed Martinez. They didn’t block her car from leaving. They didn’t disable her car from driving. They didn’t tell her she was under arrest. They didn’t command her to stop. And Martinez didn’t submit to officers’ command,” wrote Deputy State Public Defender Julia Chamberlain.

The prosecution countered that officers were trying to prevent Martinez from leaving the scene at the time she allegedly struck Hanratty, rendering her “in custody.”

The appellate panel sided with Martinez. Under Colorado Supreme Court precedent, someone is in custody when an arrest has been “effected” – meaning officers have physical control over a person to ensure they do not leave. Only after that point can force against a police officer be considered assault.

“This distinction matters because, before an arrest is effected and the individual is considered ‘in custody,’ the application of force against a peace officer can constitute resisting arrest,” Fox wrote, “but not second degree assault.”

Because Martinez was evading arrest at the time she allegedly used force, the prosecution failed to prove she assaulted Hanratty. The panel declined to resolve Martinez’s other claim that she did not violently apply physical force, nor did it address Martinez’s other concerns about the definitions the trial judge and prosecutor had offered to the jury about the meaning of “in custody.”

Martinez still stands convicted of four counts of vehicular eluding.

The case is People v. Martinez.