By a 4-2 vote, the Colorado Supreme Court has determined the state legislature intended for a person charged with felony driving under the influence to have their prior convictions proven beyond a reasonable doubt to a jury, prompting objections from the legislators who authored the law.
"We think there are good reasons to question the legitimacy of proving prior convictions only to a judge when the prescribed penalties (and attendant collateral consequences) for felony DUI are so significant,” wrote Justice Melissa Hart for the majority in an opinion published on Monday.
Stephen Anderson, a former prosecutor and current Colorado Springs defense attorney at Anderson & Carnahan, called the decision a victory for defendants' rights.
"The underlying DUI is still a DUI, it's just a misdemeanor. But they have to decide if the priors truly are sufficient to label that person a felon," he said. "If you create some doubt as to one of two of them, maybe you'll stay with a misdemeanor."
Rep. Lori Saine, R-Firestone, who was one of the sponsors of the felony DUI bill in 2015, called the majority's decision "ridiculous."
"This is a court not interpreting, but inserting their opinion," she said.
The underlying case arose when Arapahoe County Sheriff’s Office received a call in March 2016 that Charles James Linnebur, suspected of driving drunk, crashed his vehicle into a fence in Strasburg. Upon questioning, Linnebur admitted as much, and a post-arrest evaluation confirmed a blood alcohol content of 0.343, more than four times the legal limit.
Prosecutors charged Linnebur with felony DUI, which the General Assembly provided for in 2015 if an individual has three or more prior convictions. Although the defense argued that prior convictions were an element of felony DUI and therefore had to be proven beyond a reasonable doubt, the Arapahoe County District Court judge instead decided they served merely to enhance the sentence. As such, the threshold for proof was much lower.
A jury convicted Linnebur of driving while ability impaired and DUI per se, a crime stemming from the blood alcohol measurement above the legal limit. Linnebur received four years in community corrections.
In 2018, a three-member Court of Appeals panel rejected Linnebur’s interpretation of the prior conviction threshold. Then-Judge Karen M. Ashby admitted the “statute is silent” about the burden of proof for prior convictions. However, “the enhancing provision is in a separate sentence from the elements and is clearly separated from the definition of the offense,” meaning the prior convictions were not components of a felony DUI crime itself.
The Supreme Court’s majority agreed the law was worded ambiguously, and that both sides had a “plausible interpretation” of the felony DUI law. Hart noted the treatment of prior DUI convictions varies across states, with approximately half treating them as sentence enhancers and more than one-third as an element of a felony.
“This statute is unique. I haven’t been able to find anything else that’s written in exactly the same way,” said Meredith Rose, Linnebur’s attorney, to the justices during oral argument.
Pointing to the range of extra prohibitions that stemmed from a felony DUI conviction, including restrictions on firearm ownership and from working in certain professions, the court's majority felt the legislature intended to treat the burden of proof differently to elevate a DUI conviction to a felony, "at least absent some clear indication to the contrary."
"That is not what we meant," insisted Sen. John Cooke, R-Greeley, on Monday. Cooke was also a sponsor of the 2015 change in the law. A former sheriff of Weld County, he cited instances of people racking up half a dozen DUI charges or more.
"After some point, you've got to say enough is enough," he said. "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."
In taking a different interpretation, the court's majority pointed to an inherent injustice in letting a judge decide after the jury's verdict whether to elevate the misdemeanor conviction to a felony.
"Indeed, the unfairness that would be associated with permitting a defendant to be tried for a misdemeanor to the jury and then sentenced for a felony by the judge on the basis of a fact that had to be proved only by a preponderance of the evidence is so significant that it risks running afoul of the Sixth Amendment," Hart wrote.
Anderson, the defense attorney, said that in effect, the ruling requires prosecutors to show beyond a reasonable doubt that the defendant committed a DUI in the instance at hand, but also that he did so in at least three prior instances to merit the felony.
"I can envision a situation — I've seen it — where somebody has taken a plea to a DUI when they're facing a felony charge," he said. "Sometimes we end up pleading to offenses in court to take advantage to a deal, not realizing what the consequences are down the road."
Anderson described hypothetical cases of people who may have pleaded guilty long ago when they were young, instances of racially-motivated "driving while Black" charges, or of someone pleading guilty to DUI instead of the more serious charge of drug possession — all of which could plant doubt in the jury's mind about past conduct.
"You can envision somebody taking an artificial plea to DUI just to avoid the felony conviction," he explained.
The Colorado District Attorneys' Council indicated after the ruling that prosecutors would adjust their tactics at trial accordingly.
"While the court's decision may increase the costs to prosecute these offenders, the reality is that prior convictions are rarely subject to significant dispute. What’s critical is that we keep our roads, highways and community safe by continuing to hold repeat DUI offenders accountable," the organization of the state's elected prosecutors said in a statement.
Dissenting for herself and Justice Carlos A. Samour, Jr., Justice Monica M. Márquez maintained that treating prior convictions as sentence enhancers was standard among other types of crimes. Explaining that the "prior convictions themselves were subject to constitutional due process protections,” Márquez worried it would be more unfair to introduce a defendant’s prior crimes to a jury than to simply have a judge evaluate them for sentencing purposes.
“Today’s decision strikes me as an example of ‘be careful what you wish for.’ A defendant’s prior convictions for drinking and driving related offenses now will be presented to a jury as an element of the felony offense — for drinking and driving — despite the risk of prejudice to the defendant,” she cautioned.
At oral argument, Samour likewise observed that "obviously in a criminal history situation, it's either something the defendant has pled guilty to or a jury has resolved." Rose, Linnebur's lawyer, countered that a defendant convicted of prior misdemeanors for driving under the influence may not have had had the same safeguards as under felony proceedings.
"It's substantively changing the nature of the offense and it does change substantive criminal rights as well as criminal procedure," she said.
Anderson believed that logistically, a jury would first decide if a defendant was guilty of DUI, and then would hear evidence about the defendant's prior convictions. A prosecutor who referred to past convictions during trial would invite a mistrial, and a defense attorney could coach his client against admitting to the defenses prematurely.
"I think the legislature had an obligation to be really clear about what their intentions were," he said.
Saine said that the bill that created the felony DUI charge, House Bill 1043, was centered around the small proportion of people that reoffends at a high rate.
"It may be 500 people out of the entire state of Colorado that will actively not stop drinking and driving. Those are the people we are going after," she said.
Justice Brian D. Boatright did not participate in the case.
The case is Linnebur v. People.