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Over a period of nine months, 17 judges in Colorado rejected appeals from those convicted of driving under the influence for the same reason: the law does not require prior DUIs to be proven beyond a reasonable doubt.

But then the state Supreme Court stepped in.

By a 4-2 vote, the majority of justices handed down a ruling on Nov. 9 in the case of Linnebur v. People, weighing in on the statute that raises a DUI conviction to a felony instead of a misdemeanor. Before, prosecutors merely needed to demonstrate to a judge that the defendant, more likely than not, had at least three previous DUIs. The majority instead decided prior offenses must be proven to a jury beyond a reasonable doubt.

Six weeks later, the Supreme Court sent a dozen criminal cases just like it back to the Court of Appeals with an instruction to reevaluate the convictions.

“For people that didn’t get that evidence in front of a jury,” said Jeffrey Wolf, a criminal defense lawyer in Denver, “it’s a lucky break for them.”

Of the 12 convictions returned to the appellate court on Dec. 21, half are from Mesa County. The remainder arose from four metro Denver jurisdictions. Most of the circumstances listed in court records featured the typical hallmarks of impaired driving.

Police found one driver asleep behind the wheel in Glendale, vomit on his shirt and five prior DUIs on his record. Another motorist with three priors rear-ended a woman in Douglas County, claiming he had been texting but later admitted to drinking a “couple shots” of vodka. And a man with three priors in Grand Junction swerved through multiple lanes of traffic before stopping for police, admitting, “I know I’m going to jail, officer.”

"At the core of it, it's a really interesting issue," said Michael Dougherty, the Boulder County district attorney. "How much do we allow juries to learn about the past acts of a defendant?"

Winning the battle, losing the war

Criminal defenders agreed that while the group of 12 defendants whose cases are headed back to the Court of Appeals happened to benefit from good timing, future DUI cases will put their clients at a disadvantage by allowing jurors to learn about prior convictions at the same time as the current charge.

“Let’s be honest: if you’re on the jury and you’re hearing that this guy’s here with four priors, but this time you want to believe he’s not guilty, aren’t you automatically skeptical?” said M. Colin Bresee, a former prosecutor and currently a criminal defense lawyer in Denver. “No jurors are going to want to find someone not guilty on a fourth DUI, and say, ‘I want this guy driving in my community tonight.'”

Richard B. Huttner, an Englewood attorney, characterized the decision as “winning a battle for those cases, but losing the war.”

In Linnebur, the defendant crashed his car while drunk into a fence in Arapahoe County. Like the other cases of its kind, the defense argued the legislature did not intend for a judge to enhance the sentence to a felony just by looking at prior convictions. But rather, the question of whether there were at least three prior DUIs was an element of the crime for which a jury must render a verdict.

"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 in the majority opinion.

While the U.S. Supreme Court decided in 2000 there is no need to prove prior convictions to increase the maximum sentence, the majority in the Linnebur case felt the ruling did not answer the question of whether a judge alone could transform a misdemeanor conviction into a felony.

Colorado lawmakers who created the felony DUI statute in 2015 to crack down on repeat offenders maintained they merely intended to enhance the sentence, not add a new element of the crime to prove.

Jennifer Knudsen, traffic safety resource prosecutor with the Colorado District Attorneys' Council, said that many prosecutors in the state tried to provide "significant amounts of proof" about prior convictions even before Linnebur. But the state Supreme Court did not direct trial court judges how to structure trials in the wake of the ruling.

Ideally, defense attorneys said, a trial would have two parts: first, a jury would deliberate on whether an individual had committed DUI or driving while ability impaired. Upon returning a guilty verdict, they would then hear about the prior DUI convictions, deciding whether proof existed beyond a reasonable doubt.

If jurors answered in the affirmative, the defendant would have a class 4 felony conviction, with up to six years in prison, a half-million-dollar fine, and the restrictions associated with being a felon — such as having to disclose their status to prospective employers. If not, it would remain a misdemeanor.  

However, the other, less time-consuming option, is to introduce everything at once and hope the prior convictions do not bias the jury.

“The DAs I’ve worked with at least, it doesn’t affect them so much, whether they prove it to a judge or a jury,” observed Wolf. “The thing I think the DAs care about is if they have to prove it to a jury, they don’t want a bifurcated trial.”

"Be careful what you wish for"

Justice Monica M. Márquez, one of the two dissenting votes in the Linnebur decision, cautioned that court precedent did not support holding bifurcated trials.

“Today’s decision strikes me as an example of ‘be careful what you wish for’,” she wrote, echoing the concerns of criminal defenders. “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.”

Alexis King, the incoming district attorney for Jefferson and Gilpin counties, said that as "a matter of law," defendants do not have the right to separate out certain elements of a crime during trials when it is advantageous to do so.

However, "as with any other case, individual trial courts will ultimately decide on the procedure to be followed in a particular case, and those decisions are subject to appellate review," she said, foreshadowing another potential Supreme Court directive on the subject.

Bresee, the defense attorney, predicted that “nine times out of 10” a jury would deem a certified document listing the prior offenses as sufficient proof for the felony conviction, especially for more recent crimes.

“There is the issue of, ‘well, I had one prior in Louisiana back in the ‘70s and they don’t have very good records.’ What do they do about that?” he said. “The record-keeping in Denver, Colorado back in the '80s is probably going to be a little bit better than Durango in the '80s.”

Knudsen, with the district attorneys' council, agreed that the level of proof required for prior convictions was another ambiguous factor arising from the Linnebur ruling.

"Do we have to get fingerprints on plea paperwork?" she asked. "A defendant could say, 'that was my brother and we were dumb kids, and I just pled guilty for him in Louisiana.' Now what does the prosecutor have to do? Bring the clerk from Louisiana?"

For the 12 cases returning to the appellate level, which were decided between May 2019 and January 2020, judges may opt to lower the conviction to a misdemeanor. An appellate panel, referencing Linnebur, did just that on Dec. 24 for a 13th case, while also giving prosecutors the option to retry the defendant.

Of all of the judges who weighed in on the appeals, only one, Chief Judge Steve Bernard, took the position that the Supreme Court’s majority would later adopt. Calling misdemeanor and felony DUIs as different as “ice and water,” Bernard speculated in a Jefferson County case that “our supreme court may harbor some of the reservations about the felony DUI statute that I do.”

At the time the General Assembly created the felony DUI law through House Bill 1043, there was concern that up to 1,500 to 2,000 people per year would spend long sentences in prison compared to weeks or months in jail for a misdemeanor charge. In 2017, there were more than 7,500 guilty pleas and verdicts for DUI, and in excess of 8,200 for driving while ability impaired. However, only 791 instances featured at least three prior convictions.

HB 1043 "catches that small population of people that will not stop unless they are stopped," said Rep. Lori Saine, R-Firestone, at the time. She said the bill was compassionate for people who refused to get treatment "because they will get that treatment and more consistent treatment if they are sent to prison."

A year and a half later, Gary Robert Johnson stole a vehicle from a driveway in Mesa County, and nearly drove it into a healthcare facility. When an employee went to assist, Johnson, who had three prior DUIs, said, “You’re at my house. I’m not drunk.” He drove over a curb and crashed into a canal ditch. During his ride to jail, Johnson volunteered that he "should have just taken a cab.”

The Court of Appeals last year upheld his felony conviction. Now, it must reconsider.

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