One yr after the Colorado Supreme Court docket laid down a brand new normal for prosecuting felony drunk driving circumstances and prompted the reversal of dozens of convictions, the justices have now clarified that prosecutors might, actually, search to strive these defendants once more for driving underneath the affect.
It doesn’t violate the constitutional safety towards double jeopardy, the court docket selected Monday, for district attorneys to once more file felony fees towards folks whose convictions have been downgraded to misdemeanors after the November 2020 determination in Linnebur v. People.
“[W]right here a authorized error happens within the trial court docket, double jeopardy sometimes doesn’t bar retrial,” wrote Chief Justice Brian D. Boatright in the Dec. 20 opinion.
The Colorado Felony Protection Bar blasted the choice and hinted that it might be worthy of additional enchantment.
“We’re very disillusioned that the court docket didn’t uphold the very primary and previous precept of regulation that the state ought to solely have the ability to take one shot at getting a conviction,” the authorized group mentioned. “We hope that there’s a approach that the U.S. Supreme Court docket may reverse this error.”
The Linnebur case clarified the extent of proof wanted to convict somebody of a felony DUI, somewhat than a misdemeanor. A 2015 change in state regulation established the extra critical offense for somebody who had at the least three prior DUI or driving whereas skill impaired convictions. The next observe was to deal with the prior offenses as a sentence enhancer, with trial judges successfully reworking a misdemeanor conviction right into a felony after establishing the existence of the three prior DUIs.
In Linnebur, a majority of the court docket jettisoned that methodology, saying that prosecutors should as a substitute show the prior offenses to a jury past an affordable doubt.
“That isn’t what we meant,” mentioned Sen. John Cooke, R-Greeley, following the decision. Cooke was one of many legislative sponsors of the felony DUI regulation. “The intent was to say when you’ve got three misdemeanor DUIs, then in your fourth one, it is a felony, so it turns into a sentence enhancer.”
In consequence, the state’s second-highest court docket ordered the reversal of felony DUI convictions to misdemeanors. However the Court docket of Appeals and the Supreme Court docket have been silent about whether or not the state and U.S. constitutions would permit a prosecutor to cost a defendant once more with felony DUI and search a second trial.
The First Judicial District Legal professional’s Workplace, which covers Jefferson and Gilpin counties, charged Kevin Wayne Viburg once more for a felony DUI offense from 2016. The Court docket of Appeals beforehand reversed Viburg’s felony conviction in 2020, however earlier this yr a Jefferson County choose dominated that District Legal professional Alexis King may proceed with a second trial.
The Supreme Court docket reviewed the trial court docket choose’s ruling immediately. Viburg’s lawyer argued that the district legal professional shouldn’t obtain a second likelihood at presenting proof to the jury that it didn’t provide on the first trial, and raised logistical questions on what a second conviction would imply for Viburg’s present misdemeanor.
“Would a second verdict override, or merely complement, the primary conviction? Does the unique verdict have any significance at a successive jury trial for a similar offense? Which conviction prevails?” Deputy State Public Defender Meredith O’Harris wrote to the court.
The Supreme Court docket’s determination didn’t resolve these questions. Boatright as a substitute defined that the aim of the constitutional prohibition towards successive prosecutions for a similar offense was to keep away from placing a defendant by means of further expense and anxiousness. However he drew a distinction between an acquittal by a jury and somebody whose conviction is reversed following an error within the proceedings.
“Right here, there was no acquittal. And the place the defendant just isn’t acquitted, double jeopardy doesn’t bar retrial,” Boatright wrote.
Viburg additionally identified that he nonetheless retains his conviction from the prison conduct at challenge, and that the district legal professional had the chance to show his prior convictions to the jury past an affordable doubt, however didn’t. The Supreme Court docket disagreed with that interpretation, noting the unique trial court docket choose utilized the sentence enhancement to Viburg’s conviction as a substitute of turning the query of the prior offenses over to the jury.
“Right here, the jury didn’t acquit Viburg of felony DUI as a result of it by no means actually thought-about whether or not he was responsible of felony DUI,” Boatright defined. “In consequence, the prosecution by no means obtained the chance to current the proof to the jury, which didn’t render a verdict on felony DUI in any respect. Due to this fact, that misdemeanor DUI is a lesser included offense of felony DUI has no bearing on whether or not the prosecution might retry Viburg for felony DUI.”
The prison protection bar, in its assertion, criticized the choice for permitting the First Judicial District Legal professional’s Workplace to “take a second shot at convicting” Viburg.
“It truly is basically unfair to allow them to maintain attempting till they get it proper,” the group mentioned.
The Colorado District Attorneys’ Council, which represents the state’s elected prosecutors, declined to touch upon the case.
When the Supreme Court docket initially determined Linnebur, the vast majority of justices had important considerations about permitting a jury to convict somebody of a misdemeanor, with a choose then elevating the conviction to a felony by means of sentencing. Felony convictions not solely carry longer sentences, but additionally penalties for firearm possession, voting whereas incarcerated and dealing in sure professions.
However the two dissenting members of the court docket, Justices Monica M. Márquez and Carlos A. Samour Jr., warned about different manifestations of unfairness to defendants that might outcome from the ruling, even past the potential of a second trial.
“As we speak’s determination strikes me for instance of ‘watch out what you want for,'” Márquez wrote.
M. Colin Bresee, a prison protection legal professional in Denver, agreed with that sentiment.
“The expression ‘watch out what you ask for’ applies,” Bresee mentioned. “The Colorado Supreme Court docket just isn’t planning on lightening up on DUI legal guidelines any time quickly. It was folly to suppose in any other case. Sadly, [Viburg] will now seemingly be a convicted felon.”
The case is Viburg v. Individuals.