The Colorado Supreme Court took the unusual step on Monday of partially overruling its own landmark decision from less than four years ago, concluding drunk drivers who were not tried in accordance with state law are not entitled to automatic reversal of their convictions.

The court’s majority also clarified that when settled law changes during a defendant’s direct appeal — rendering a trial judge’s decision erroneous in retrospect — appellate courts cannot simply give the defense the benefit of the change.

“This case gives us an opportunity for course correction. And we are firmly convinced that more good than harm will come from reversing direction,” wrote Justice Carlos A. Samour Jr. in the majority’s June 10 decision.

Justice Richard L. Gabriel dissented, arguing it is unjust to penalize a defendant who did not object to an error at trial — because the error was not yet obvious — and prevent appellate judges from using the current understanding of the law to determine if a new trial is necessary.

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“Applying the law at the time of appeal is consistent with centuries of Supreme Court case law, as well as precedent of this court, and I do not see any persuasive reason to deviate from that rule now,” he wrote.

The case of Charles James Crabtree required the state Supreme Court to weigh in on two major legal issues: When the justices said in 2020 that defendants were being convicted of felony impaired driving offenses in a way that did not comply with state law, was automatic reversal of the convictions truly required?

Secondarily, if a trial court error becomes obvious during the appeal, but the defense did not object because the law was interpreted differently during trial, should appellate courts apply the law that exists at the time of appeal? Or at the time of trial?

A Boulder County jury convicted Crabtree of drunk driving. At the time of his trial, the general understanding of the state’s felony DUI law was that a jury would decide if the defendant was guilty of a misdemeanor for the offense at hand. Then, a judge alone would determine if the defendant had at least three prior impaired driving convictions. If so, the judge would sentence the defendant to a felony.

That changed in November 2020, when the Supreme Court decided that was not the correct interpretation of Colorado’s felony DUI law. Instead of prior convictions being a sentence enhancer, they were an element of the crime itself. Therefore, juries also had to decide beyond a reasonable doubt whether a defendant had the necessary priors at trial.

The remedy endorsed by the Supreme Court in Linnebur v. People was an automatic reversal of defendants’ felony convictions, which the Court of Appeals quickly applied to cases pending on appeal.

In Crabtree’s case, the Court of Appeals also addressed how it should treat the unobjected-to error. Normally, appellate judges look at whether the error was obvious, or “plain.” The court decided to go with the U.S. Supreme Court’s approach of asking whether an error was obvious at the time of appeal, not the time of trial. Given the Linnebur decision, the mistake in sentencing Crabtree to a felony was obvious.

However, the state Supreme Court walked back that understanding, admitting it needed a redo of its landmark DUI decision.

“It is clear to us now that we erred in Linnebur. It happens,” Samour wrote.

The unobjected-to error of having judges alone convict defendants of felony DUI did not require automatic reversal, the majority believed, because defendants were on notice all along that they could be facing a felony.

As for the time-of-trial or time-of-appeal question, Samour noted the U.S. Supreme Court’s reasoning for selecting the time of appeal did not apply to Colorado. Although regional federal appeals courts can interpret the law differently in the absence of a U.S. Supreme Court directive, Colorado only has one state Supreme Court and one state Court of Appeals issuing decisions.

“In general, all defendants tried in Colorado are affected by the same law at the same time, regardless of the judicial district in which a trial occurs,” Samour wrote.

He added that in the event the law does change while an appeal is pending, defendants can file a motion for postconviction relief in the trial courts instead.

Gabriel did not agree with that solution in principle or in practice. He observed trial judges are not obligated to grant postconviction relief and, moreover, it was unfair to subject two defendants — one whose trial happens immediately before a change in law and one whose trial happens immediately after — to different outcomes on appeal.

“I believe that we got it right in Linnebur, and I perceive no basis for us to depart from the rule that we adopted so recently, without any persuasive reason for doing so,” he wrote. Because Crabtree’s trial judge unilaterally transformed the jury’s misdemeanor verdict into a felony, the error “necessarily rendered the trial fundamentally unfair, and, thus, in my view, Crabtree’s felony DUI conviction must be vacated.”

Justice William W. Hood III wrote separately in what he deemed a short “hybrid” opinion. Hood agreed with the majority that there should not be automatic reversals of DUI convictions under Linnebur, but he also sided with Gabriel that Crabtree’s conviction should be overturned based on the time-of-appeal principle.

Timothy R. Bussey, a defense lawyer in Colorado Springs, said he would likely “sort out the meaning” of the ruling in the years to come.

“But today’s Crabtree decision shows how the complexity in laws enacted by the legislature reverberates for years and years, resulting in costly litigation and destroying clarity,” he said. “As Crabtree shows, it even raises the likelihood of disparate outcomes for similarly situated defendants who are tried weeks apart.”

The case is People v. Crabtree.