Colorado’s second-highest court agreed on Thursday that state law only authorized a single criminal sentence for a man whose careless driving resulted in the deaths of two people, and not the two sentences a Larimer County judge originally imposed.

Judge Steve Bernard, a member of the three-judge Court of Appeals panel that decided the case, took the unusual step of asking the legislature to take a closer look at the careless driving law. Although he believed the law as written solely authorizes a conviction for each act of careless driving, rather than each victim harmed, Bernard questioned whether the General Assembly intended for that result.

“What if a defendant is a school bus driver and her careless driving is the proximate cause of the deaths of a dozen school children? What if a defendant is driving on a busy downtown street and his careless driving results in his car jumping up on a sidewalk into a crowd in front of a theater, proximately causing the deaths of four or five people?” Bernard wrote. “We certainly hope that such events do not occur, but experience teaches otherwise.”

In the underlying case, both the prosecution and defense agreed Brennan Fleet Tanner sustained only one misdemeanor conviction for careless driving. Witnesses observed his truck speeding and weaving before he crashed in January 2021, killing passengers Amanda Choucherie and Logan Stilson.

At a trial before District Court Judge Laurie K. Dean, she acquitted Tanner of homicide but convicted him on two counts of careless driving – one for each victim. She declined the parties’ request to merge the convictions together and imposed a one-year jail sentence on Tanner for each count.

On appeal, Tanner invoked the constitutional prohibition against double jeopardy, which applies to multiple punishments for the same offense. Tanner pointed out the conduct that leads to a single careless driving charge – known as the unit of prosecution – is the act of careless driving itself, regardless of the number of victims. Therefore, Dean had improperly imposed two convictions and two sentences.

As it did in the trial court, the prosecution agreed with Tanner. The Court of Appeals panel sided with both of them.

“True, the unit of prosecution for some offenses is, as the district court noted, defined by each victim harmed,” wrote Chief Judge Gilbert M. Roman for himself and Judge Janice B. Davidson on Oct. 19. But that was not the case with careless driving.

Case: People v. Tanner

Decided: October 19, 2023

Jurisdiction: Larimer County

Ruling: 3-0

Judges: Gilbert M. Román (author)

Janice B. Davidson

Steve Bernard (concurrence)

Background: State Supreme Court endorses separate charges for each building, person endangered in arsons

Bernard, a retired judge who sat on the panel at the chief justice’s assignment, wrote separately to question whether state lawmakers, when they revised the careless driving law in 1985, meant to take away judges’ ability to sentence defendants for each victim injured.

Specifically, he noted the concept of a “unit of prosecution” was relatively underdeveloped at the time, with many appellate decisions on the subject coming years later. For example, only last year did the Supreme Court interpret Colorado’s arson law to authorize separate charges for each building, person or property affected by fire.

“What I do mean to suggest is what the legislature may have intended in 1985 is now no longer possible because of that evolution,” Bernard explained.

He urged the General Assembly to look at the careless driving law anew, with the understanding that the current wording authorizes a single conviction no matter the number of victims.

“Once it does, it can decide whether it wishes to amend that statute to give judges discretion to impose consecutive sentences in cases in which a defendant’s careless driving was the proximate cause of the deaths of two or more people,” Bernard wrote.

The case is People v. Tanner.