Rejecting a creative argument from a man convicted of driving under the influence, Colorado’s second-highest court on Thursday concluded a line from an 86-year-old U.S. Supreme Court decision did not call into question the legitimacy of the defendant’s prior DUI offenses.

The Sixth Amendment guarantees the assistance of counsel for criminal defendants. Most famously, the Supreme Court’s 1963 decision in Gideon v. Wainwright recognized the right to counsel in state criminal cases, with appointed attorneys to be provided for those too poor to hire one. Prior to Gideon, another Supreme Court ruling in 1938, Johnson v. Zerbst, established a similar requirement for federal criminal prosecutions.

“Since the Sixth Amendment constitutionally entitles one charged with crime to the assistance of counsel,” wrote Justice Hugo Black in Zerbst, “compliance with this constitutional mandate is an essential jurisdictional prerequisite to a federal court’s authority to deprive an accused of his life or liberty.”

William Scott Burdette, who Arapahoe County jurors convicted of DUI in 2021, argued that line provided grounds for vacating his felony conviction.

Under Colorado law, DUI is normally a misdemeanor, but becomes a felony if a defendant has at least three prior offenses. Burdette had three impaired driving convictions from 1990 and 1995, rendering his latest offense a felony. 

However, he testified he did not have an attorney representing him for his first two DUI convictions in 1990 and it was “common practice in Arapahoe County until the late 1990s” that public defenders were not appointed for all misdemeanor cases. Because his Sixth Amendment right to counsel was allegedly violated, Burdette believed his priors could not be used to increase his sentence 30 years later.

A trial judge rejected his argument and on appeal, Burdette leaned into the Supreme Court’s 86-year-old Zerbst decision — specifically, the statement that complying with the Sixth Amendment is a “jurisdictional prerequisite” for a court to convict someone.

The Supreme Court “meant what it said: the government does not have the power to exercise authority in a criminal case over someone who does not have an attorney,” wrote public defender Jessica A. Pitts. She clarified Burdette was not seeking to overturn his 1990 convictions, but rather to prevent the government from using them to sentence him for felony DUI.

A three-judge panel for the Court of Appeals noted no appellate ruling in Colorado had ever clarified whether the Supreme Court’s statement meant state courts lacked jurisdiction to hear cases if a defendant is denied the right to counsel. The panel concluded the answer was no.

Judge Grant T. Sullivan explained in the April 18 opinion that courts have subject-matter jurisdiction to hear categories of cases. But the panel did not believe a violation of the right to counsel meant courts lose the ability to handle a case to begin with. In part, Sullivan pointed out the Supreme Court historically raised the concept of jurisdiction “imprecisely,” and the term means something different now.

“Based on the Supreme Court’s more recent decisions narrowing the definition of ‘jurisdictional,’ we cannot agree with Burdette that the denial of a defendant’s Sixth Amendment right to counsel deprives a court of subject matter jurisdiction over the charged crime,” he wrote.

The panel upheld Burdette’s felony DUI conviction. It also rejected Burdette’s contention that the requirement in Colorado law for drivers to cooperate with police in drawing a blood or breath sample within two hours of being stopped meant officers must obtain the sample within that same two-hour window.

The case is People v. Burdette.