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The Colorado Supreme Court will likely answer a question it generated last fall when it set off a wave of reversals for felony drunk driving convictions: Does prosecuting those offenses again violate the prohibition on double jeopardy?

Last month, the Court directed the state to respond to an appeal out of Jefferson County from Kevin W. Viburg, whose 2017 conviction for driving under the influence the Court of Appeals reversed in 2020. A jury had convicted him of a misdemeanor, but the trial judge determined Viburg had three prior alcohol-related driving convictions, and elevated the offense to a felony.

The Court of Appeals decided at the time that the existence of prior convictions was something prosecutors had to prove at trial, and not a factor judges could use to convert a misdemeanor into a felony after the verdict. In November, ruling in a different case, the Colorado Supreme Court reached the same conclusion in Linnebur v. People, saying the General Assembly intended prior DUI convictions to be proven beyond a reasonable doubt to a jury.

Immediately, the Court of Appeals began reversing felony DUI convictions whose appeals were ongoing. Appellate judges sent half a dozen cases back to lower courts in May alone. But the question the Supreme Court did not answer — and pushed off to the trial courts — was whether prosecuting someone again for felony DUI under the new rules violates the constitutional prohibition on double jeopardy.

On May 10, Viburg filed an appeal directly with the Supreme Court in an attempt to avoid a second trial. The state public defender’s office, which is representing Viburg, argued his appeal presented an opportunity to have a “widespread impact” on similar DUI cases.

“Since there have been many reversals under Linnebur, there are many criminal cases in an identical procedural posture to this one. Thus, this is an issue of significant public importance and review will dispel the continued uncertainty these defendants face, while providing essential and urgent guidance to trial courts,” wrote Deputy State Public Defender Meredith O’Harris.

Multiple district attorney offices did not immediately know the number of felony DUI cases they sought to re-prosecute following the Linnebur decision. A spokesperson for the 18th Judicial District Attorney's Office, which includes Arapahoe, Douglas, Elbert and Lincoln counties, said prosecutors there have not held any retrials.

Sarah Schielke, a criminal defense attorney whose work includes DUI cases, believed the Supreme Court would need to “engage in some real legal acrobatics” if it were to decide double jeopardy did not apply to all of the impaired driving convictions reversed after Linnebur.

“If the Court follows the law and precedent, and rules that double jeopardy bars retrial of the felony DUI charge here, this case will have a limited and narrow impact on a small number of cases,” she said. However, if the justices greenlight further prosecution, “the impact of this case will then be quite broad with deeply concerning implications for the application of double jeopardy protections for citizens in Colorado generally.”

A 2015 change in the DUI law established a felony offense for repeat drunk driving offenders. One of the sponsors of the legislation, Sen. John Cooke, R-Greeley, told Colorado Politics after the Linnebur decision that the General Assembly had not meant for prosecutors to prove the existence of prior convictions beyond a reasonable doubt.

"The intent was to say if you have three misdemeanor DUIs, then on your fourth one, it's a felony, so it becomes a sentence enhancer," he said.

In its consideration of Viburg's appeal, the three-member Court of Appeals panel determined misdemeanors are different from felonies in a variety of ways, from criminal procedures and severity of sentencing to the many societal consequences, including being unable to vote while incarcerated or being barred from possessing a firearm. The Supreme Court's majority endorsed that line of reasoning in the Linnebur decision as well.

A Jefferson County judge in March of this year declined to dismiss the felony DUI charge the district attorney filed against Viburg again. Viburg's attorney noted that he still stands convicted by a jury of the lesser offense of misdemeanor DUI, and prosecutors cannot try someone for the same conduct before two different juries. A second verdict would raise questions about whether one decision would override the other.

It is "entirely reasonable for Mr. Viburg to expect that, upon winning his appeal due to the trial court’s structural sentencing error and having fully served his sentence for a valid lesser conviction, there would be no successive attempt to prosecute him for identical conduct," O'Harris wrote to the Court.

The case is People v. Viburg.

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