Appendix — Higgs v. Colorado
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: 04 696-<°4 15 2004
i OFFICE OF THE CLapyc
In The Supreme Court of the United States
JEFFREY ARNOLD HIGGS, Petitioner,
V.
PEOPLE OF THE STATE OF COLORADO, Respondents.
ON PETITION FOR WRIT OF CERTIORARI TO THE
COLORADO STATE SUPREME COURT
APPENDIX
CRAIG D. JOHNSON
Councel of Record
8 Garden Center
Broomfield, Colorado 80020
303-466-2335
303-466-6342 Fax
Counsel for Petitioner
TABLE OF CONTENTS
Page
Appendix A: Order Denying Petition for Writ of
Certiorai by the Colorado Supreme Court dated
sie cassis Ecoepcan. OO Te TELA NOTE 1-3
Appendix B: Order of 17" Judicial District
Court dated December 5, 2003..........cccccccccccececcececccc. 4-1]
Appendix C: Order of Broomfield County Court
Denying Defendant’s Motion to Set Aside Jury
Verdict, or in the Alternative, Motion for New
BAW MONO FE 7, FS ss sscssccsescsssvasicececscesce..e:e. 12-14
Appendix D: Order of Broomfield County Court
and Judgment of Conviction dated March 5, 2003....... 15-20
Appendix E: Motion to Set Aside Verdict, or in the
Alternative, Motion for New Trial dated
UN ra 21-28
Appendix F: Petition for Writ of Certiorari to the
Colorado Supreme Court dated January 9, 2004.......... 29-76
Appendix G: C.R.S. §42-4-1301 ..o.cccccccccccececcccesececece., 77-88
APPENDIX A
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SUPREME COURT, STATE OF COLORADO
TWO EAST 14'™ AVENUE
DENVER, COLORADO 80203
Case No. 04SC23 Received APR 21, 2004
Craig D. Johnson & Assoc.
CERTIORARI TO DISTRICT COURT, BROOMFIELD
COUNTY, 03CV68
COUNTY COURT,
BROOMFIELD COUNTY,
02T712
- Petitioner:
JEFF ARNOLD HIGGS,
V. ~
Respondent:
THE PEOPLE OF THE STATE OF COLORADO,
ORDER OF COURT
Upon consideration of the Petition for Writ of
Certiorari to the District Court of Broomfield County, and
after review of the record, briefs, and the judgment of said
\ district court,
IT IS THIS DAY ORDERED that said Petition for
Writ of Certiorari shall be, and the same hereby is, DENIED.
BY THE COURT, EN BANC, APRIL 19, 2004.
Seal on original
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Copies mailed via the State's Mail Services Division on
04/19/04. MLK
Craig D. Johnson
8 Garden Center
Broomfield, CO 80020
Michael J. Milne
Sr. Deputy District Attorney
450 South Fourth Ave.
Brighton, CO 80601
Clerk of the Court
Broomfield County Court
17 DeCombes Dr.
Broomfield, CO 80020
Honorable Randall J. Davis
Broomfield County Court
17 DeCombes Dr.
Broomfield, CO 80020
Honorable Donald W. Marshall
Broomfield County Court
17 DeCombes Dr.
Broomfield, CO 80020
s/
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APPENDIX B
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DISTRICT COURT, BROOMFIELD COUNTY,
COLORADO
Case No. 2003C V68, Div: A, Ctrm: 2
Court Address: 17 Descombes Drive, Broomfield, CO 80020
JEFF ARNOLD HIGGS
Appellant,
Vv.
PEOPLE OF THE STATE OF COLORADO
Appellee.
ORDER
This is an appeal from the County Court for
Broomfield County. The court has received and reviewed the
certified record from the County court and the briefs of the
parties. The Court now dispenses with oral argument and
rules on the appeal as stated herein.
On July 17, 2002, the appellant was charged with
driving under the influence and failure to drive in a single
lane. The case was tried before the Honorable Randall J.
Davis and a jury of six on January 6, 2003. Appellant was
acquitted of the charge of failure to drive in a single lane and
convicted of driving under the influence. The defendant
raises the following issues for appellate review: (1) Has
appellant's constitutional right to a speedy trial been violated;
(2) Did the trial court err when it denied appellant's motion
for judgment of acquittal; (3) Did the trial court err when it
rejected appellant's tendered jury instruction on
Identification; (4) Did the trial court err by not granting a
mistrial based on statements made during the prosecution's
closing arguments.
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I. Speedy trial
Appellant asserts a violation of his constitutional right
to a speedy trial. The appellant has not asserted a statutory
right to a speedy trial under C.R.S. 18-4-104, as the record
reflects that a trial was held within one-hundred and eighty
days from the initial plea of not guilty. In fact, the trial was
held less than six months after the date of the offense.
Defendant bases his denial of his right to speedy trial on a
forty-two day delay between the time he first offered a not
guilty plea to the date the court accepted the plea.
The constitutional right to a speedy trial, derived from
U.S Const. Amend. 6, and Colo. Const. art. II. § 16, is
distinct from the statutory speedy trial right and the
determination as to one does not necessarily dispose of the
other. People v. Hogland, 543 P.2d 1298 (1975).
The defendant carries the burden of proving a
violation of a right to a speedy trial. People v. Velasquez, 641
P.2d 943 (Colo. 1982). Whether a defendant's speedy trial
right has been violated is determined by a balancing of four
factors: the length of the delay; the reason for the delay; the
defendant's assertion of his right to a speedy trial; and the
prejudice to the defendant. Barker v. Wingo, 407 U.S. 514
(1972). The purpose of the balancing analysis is to protect the
defendant from undue prejudice. Prejudice may include, inter
alia, the impact of the delay upon the ability to present a
defense, upon the availability of evidence, and upon the cost
of the proceedings. People v. Harris, 914 P.2d 425 (Colo.
App. 1995). Where the period intervening between the initial
filing of the criminal complaint and trial was neither
excessive nor unjustified, and where the defendant failed to
establish that his defense was in any manner prejudiced, the
defendant was not denied constitutional right to speedy trial.
People v. Velasquez, 641 P.2d 943 (1982).
The appellant has not made any showing of facts
sufficient to establish that the forty-two day delay to set his
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case for trial, adversely impacted his ability to present a
defense. He has not demonstrated that any evidence became
unavailable, or that the delay caused him to incur additional
costs. Rather, the appellant asserts a violation of his speedy
trial right from the anxiety caused by being forced to wait an
extra forty-two days to set a trial date. The appellant's anxiety
is unfortunate, but the delay must operate as a prejudice, and
thus, the appellant's anxiety is a non-consequence. The
appellant has failed to establish that his defense to the
charges was in any manner prejudiced by the period
intervening between the filing of the complaint and the trial
date.
II. Motion for Judgment of Acquittal
Appellant asserts that the trial court improperly
denied his motion for judgment of acquittal. Specifically,
Appellant contends there was insufficient evidence to find
guilt beyond reasonable doubt.
Upon a defendant's motion fur judgment of acquittal,
the prosecution is given the benefit of every reasonable
inference which might be fairly drawn from the evidence.
People v. Hollenbeck, 944 P.2d 537 (Colo. App. 1996). The
proper standard to be applied to a defendant's motion for
acquittal is whether the relevant admissible evidence, both
direct and circumstantial, when viewed in the light most
favorable to the prosecution, is substantial and sufficient to
support a conclusion by a reasonable mind that the defendant
is guilty of the charge beyond a reasonable doubt. People v.
Gonzales, 666 P.2d 123 (Colo. 1983) (emphasis added).
Finally, a court properly denies a defendant's motion for
judgment of acquittal at the conclusion of all of the evidence
where the question of credibility of the witnesses and the
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ultimate guilt of defendant remain, for such matters are for
the jury's determination. Roybal v. People, 493 P.2d 9 (1972).
The record reflects that the only issue with regard to
the driving under the influence charge was whether the
appellant was driving his vehicle on the night in question. At
trial, defendant offered evidence that his wife was driving the
vehicle and he was a passenger. However, a witness testified
that a male with short black hair was driving the appellant's
vehicle on the night in question. The vehicle was later parked
in appellant's garage, with one person seated in the driver's
seat. Moments later the appellant was standing behind the
vehicle.
This testimony gives rise to a reasonable inference
that appellant drove the vehicle home. The court finds that
the record contains ample, circumstantial evidence to permit
the jury to conclude that the appellant committed the offense
of driving under the influence. Therefore, the trial court
correctly reserved the issue of ultimate guilt for the jury's
determination.
Defendant also argues that since the jury found
defendant not guilty of failure to drive in a single lane the
verdicts in the case are inconsistent. He argues the jury had
found he was not driving for one count and was driving for
the other. This argument is unpersuasive as there is no reason
for this court to conclude that the jury's verdict of not guilty
on the driving in a single lane was based on the identity of
driver.
For the reasons stated herein, the court concludes the
county court did not err in denying appellant's motion for
judgment of acquittal.
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III. Jury Instructions
The appeliaiit also contends that the trial court erred when it
refused to tender his jury instruction. If a tendered
instruction sets forth a theory of the case which amounts to
nothing more than a general denial of the act, or if the
instruction is already encompassed in other instructions, the
defendant is not entitled to have his theory of the case
reiterated in a separate instruction. People v. Young, 710
P.2d 1140 (Colo. App. 1985) (emphasis added).
In the present case, the appellant tendered an
instruction to the court which explained to the jury the issue
of identification. However, the court had already provided
instructions including the elements of the crime that must be
proven. These elements were in instruction number nine and
included an ins‘ruction that it was necessary to determine that
the defendant drove the vehicle. Therefore, the trial court did
not err for refusing to tender the appellant's duplicate
instruction to the jury.
IV. Closing Arguments
The appellant also contends that the trial court erred
by not granting a mistrial based on statements made during
the prosecutor's closing argument.
When an alleged error consists of prosecutorial
misconduct and was not preserved by a contemporaneous
objection, it will not be considered on appeal unless it was
plain error affecting the substantial rights of the defendant.
Taylor v. People, 723 P.2d 131 (1986). The determination
whether closing argument is improper is a matter committed
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to the discretion of the trial court. People v. Shepherd, 43
P.3d 693 (Colo. App. 2001).
The record indicates that the appellant did not make
an objection to the prosecutor's statements during closing
arguments. Therefore, the only issue for the court's
consideration is whether it was plain error when the ~rial
court, sua sponte, did not declare a mistrial.
The court recognizes that our system of justice cannot
tolerate verdicts based on bias and prejudice rather than on
relevant facts and applicable law. However, given the trial
court's broad discretion, the record reveals that the statements
made by the prosecutor did not amount to such a level as to
constitute plain error with'n the meaning of Crim. P. 52(b).
For the reasons stated herein, the conviction of
appellant in the county court is affirmed.
Dated at Broomfield, Colorado this Sth day of
December, 2003.
By the court:
s/ Donald W. Marshall, Jr.
Donald W. Marshall, Jr.
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CERTIFICATE OF MAILING
I hereby certify that the foregoing document was sent
via JusticeLink (e-file) to all counsel of record and mailed by
the Court to all pro se parties this Sth day of December, 2003.
s/
Division Clerk
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APPENDIX C
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Work with Register of Action
1/08/04 2:38 P.M.
Status: ROPN
County Court, Broomfield County
Case #: 2002T712 Div/Room: |
The People of Colorado
VS.
HIGGS, JEFF ARNOLD
Type: Driving Under the Influence
FILE DATE 03/05/2003
EVENT DESCRIPTION SCHD DATE
TIME ROOM
Minute Order (print)
3/5/03
3-503
SENTENCING/MOTIONS HEARING: DEFT APPEARED
WITH ATD. C. JOHNSON. DDA L. BECK FOR THE
PEOPLE. CT. IS INRECEIPT OF DEFENSE MOTION TO
SET ASIDE JURY VERDICT OR IN THE ALTERNATIVE
MOTION FOR NEW TRIAL. CT. HEARS ARGUMENT
OF COUNSEL AND AFFIRMS THE JURY’S VERDICT.
DEFENSE MOTIONS ARE DENIED. MATTER
PROCEEDS TO SENTENCING. ***ORDER: 2 YEARS
PROBATION, 60 HRS UPS, $1,000 FINE AND CT COSTS
IMPOSED. DEFT TO SERVE 30 DAYS JAIL AS
CONSECUTIVE WEEKENDS FRI-SUN AT 8:30 PM TO
START APRIL 11, 2003 AT 8:30 PM. ATD NOTIFIES
THE COURT THAT AN APPEAL WILL BE FILED AND
CT ORDERS APPEAL TO BE FILED IN 30 DAYS. CT
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SETS APPEAL BOND IN THE AMOUNT OF F&C, TO BE
POSTED AT THE TIME OF FILING OF APPEAL.
/DMC
03/05/2003 04/07/2003 07:00 AM_ it
Judicial Officer.....:RANDALL JOSEPH DAVIS
More...
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APPENDIX D
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County Court, Broomfield County, State of Colorado
Case #: C0802002T 000712 Div/Room: |
JUDGMENT OF CONVICTION, SENTENCE Original
The People of Colorado vs. HIGGS, JEFF ARNOLD
DOB 10/04/1954 SID
The Defendant was sentenced on: 3/05/2003
People represented by...: BECK, LORI
Defendant represented by: JOHNSON, CRAIG
UPON DEFENDANT’S CONVICTION this date of:
1/6/2003
The defendant pled guilty to:
Count # 1 Charge: Driving Under the Influence
C.R.S. # 42-4-1301(1)(a) Class: M
Date of offense(s): 7/18/2002 to 7/18/2002 Date of
finding(s): 1/06/2003
IT iS THE JUDGMENT/SENTENCE OF THIS COURT that
the defendant be sentenced to
Probation Alcohol Supervisio 2.00 YEARS COUNT |
Jail 30.00 DAYS COUNT 1
JAIL SENTENCE TO BE SERVED AS CONSECUTIVE
WEEKENDS, FRI-SUN AT 8:30 PM
TO START APRIL 11, 2003 NO LATER THAN 8:30 P.M.
/DMC
Assessed Balance
$1,549.00 $1,549.00
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ADDITIONAL REQUIREMENTS
Complete 60.00 hours of Useful Public Service
*** CONSECUTIVE WEEKENDS***
JUDGMENT OF CONVICTION IS NOW ENTERED, IT IS
FURTHER ORDERED OR RECOMMENDED:
DATE: 3/5/03 NPT JUDGE/MAGISTRATE
s/_ Randall J. Davis
RANDALL JOSEPH DAVIS
CERTIFICATE OF SHERIFF
I CERTIFY THAT I EXECUTED THIS ORDER AS
DIRECTED
DATE SHERIFF
BY DEPUTY
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FILED IN BROOMFIELD COUNTY COMBINED COURT
MARCH 05, 2003
Case Number 02T712 Div. 1 ID Number
THE PEOPLE OF THE STATE OF COLORADO
Vs.
JEFF ARNOLD HIGGS, DEFENDANT
CONDITIONS OF PROBATION/SENTENCE, FOR THE
OFFENSE(S) OF: DUI
xx___ You are hereby sentenced to a term of probation for a
period of 24___xx_months/years.
Probation reinstated
and shall comply with the following conditions and those
listed in Section (A)(B) on the reverse side of this form. You
may be supervised in specialized programs, ad determined by
the Probation Department, with additional conditions
imposed.
xx__ YOU ARE ORDERED TO REPORT
IMMEDIATELY TO THE:
xx__ CLERKS OFFICE _ xx__ PROBATION DEPT.
ALCOHOL UNIT INTERVENTION ___
RMOMS
You are hereby sentenced to a term of unsupervised
probation for a period of Months. You need not report
to any probation office, as your case will be reviewed by the
Court.
As a condition of your sentence, you shall pay:
TOTAL FINES & COSTS: $1,000 + $349 + 200
payable to: CLERK OF THE COMBINED COURT
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**IF YOU ARE IN CUSTODY, YOU MUST APPEAR
WITHIN 48 HOURS OF YOUR RELEASE FROM
JAIL**
A supervision fee of $35 per month is to be paid
directly to INTERVENTION.
CONDITIONS OF PROBATION/SENTENCE:
You shall participate in, cooperate with, pay any fees
required, and successfully complete the following:
1. Substance abuse evaluation/treatment
2. Mental health evaluation/counseling or treatment
3. a. Domestic violence evaluation
b. Domestic Violence counseling
. Useful Public Service of 60 hours to be completed by
4
5. Level I alcohol education.
6. Level II alcohol education BAC .224 PRIORS 2
7. Level Il alcohol therapy 86 hours
8. Intensive outpatient substance abuse treatment
9. Aftercare as required by treatment/probation
-xx_ 10. Monitored sobriety required by treatment/probation
Antabuse (Circled)
Urine screens (Circled)
Breath screens (Circled) (circle)
Track D on weekends Friday 8:30 a.m. to Sunday 8:30
p.m. (Handwritten on document)
___ 11. MADD Victim Impact panel
xx 12. Jail for 30 days suspended to 30 days beginning on
4/11/03 at 8:30 p.m. ;
Work release Treatment release
Type:
Electronic Monitoring for __ Day(s)
on/before
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____ 13. Get alcohol evaluation and treatment as
recommended.
___ 14. Other:
___ No contact order vacated —_Nocontact order
continues for term of supervision
I have received a copy of these conditions and have read them
carefully with full understanding. I understand that if I
violate these conditions or those listed on the reverse of this
form, I may be brought before the Court for revocation and
imposition of sentence.
JUDGE: Randal J. Davis Date 3/5/03
Defendant: Jeff Higgs Date
Address City Zip
Phone (home) (work) _ Social Security Number___
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APPENDIX E
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COUNTY COURT, BROOMFIELD COUNTY,
COLORADO
Case No. 02T712
Court Address: 17 Descombes Drive, Broomfield, Colorado
80020
Phone Number : 303-438-6365
Plaintiff:
PEOPLE OF THE STATE OF COLORADO
Defendant:
JEFF ARNOLD HIGGS
Attorney:
Craig D. Johnson & Associates, P.CC.
Craig D. Johnson, #11902
Susan M. Spaulding, #30068
8 Garden Center
Broomfield, CO 80020
Phone: 303-466-2335
Fax: 303-466-6342
E-mail: cdj@lawyer.com
MOTION TO SET ASIDE VERDICT, OR IN THE
ALTERNATIVE, MOTION FOR NEW TRIAL
Defendant, by and through his attorneys, Craig D.
Johnson & Associates, P.C. renews his motion for acquittal
to this Court, pursuant to C.R.Crim.P. 29(c), and moves for
an Order setting aside the verdict rendered in this case on
January 6, 2003, or in the alternative, pursuant to
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C.R.Crim.P. 33, for an Order for a new trial, and as grounds
therefor states:
1. This action involves an alleged driving under the
influence offense that occurred in the City and County of
Broomfield, State of Colorado on July 18, 2002.
2. Trial to a jury was held before this Court on
January 6, 2003 on two charges,
Driving a Vehicle Under the Influence of Alcohol and
Failure to Drive in a Single Lane.
3. After presentation of all the evidence, the jury
found tne Defendant not guilty on the charge of Failure to
Drive in a Single Lane and guilty on the charge of Driving a
Vehicle Under the Influence of Alcohol. This result is totally
inconsistent with any reasonable conclusion drawn from the
evidence and the jury’s verdict should be set aside and a
judgment of acquittal must be entered in favor of the
Defendant.
4. The defense stipulated that the Defendant had a
blood alcohol level of .224 on‘the evening of July 18, 2002.
5. Further, and most importantly to the merits of this
motion, the prosecution and defense agreed on the record at
trial that the only issue for jury consideration was whether or
not it was the Defendant who was driving his vehicle on the
evening of July 18. See T.Ct.R. p.6, lines 2-10; p. 20, lines 9-
14 and lines 18-21. Essentially, this meant that the jury did
not have te decide the other elements of each offense with
which the Defendant was charged, because all other elements
of each offense were not being contested by Defendant.
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6. The only witness who testified that he saw the
Defendant’s vehicle weaving 1n and out of its traffic lane was
Zachary White. Mr. White testified that his attention was
first called toward Defendant’s vehicle when he noticed the
vehicle “swerving into the southbound lanes of Lowell
Boulevard at 136" at approximately 10:22 p.m. on July 18,
2002. ..”. Mr. White then testified that the vehicle “swerved
back into the .. . northbound lanes . . . [a]nd. . . turned .
westbound onto 136", [where] he nearly hit several street
signs, so that’s when I decided to call [the police].” See
T.Ct.R. p. 89, lines 6-7 and lines 16-18. This evidence was
not rebutted or refuted by Defendant whatsoever. Therefore,
one can only come to the reasonable conclusion that when the
jury found Defendant not guilty of the offense of Failure to
Drive in a Single Lane, they concluded that the only element
they had to determine as the trier of fact; 1.e. whether
Defendant was or was not driving, that Defendant was not
driving.
7. The jury clearly did not find Mr. White’s
testimony regarding his observations on the night of July 19,
2002 to be credible, because it found the Defendant not guilty
of Failure to Drive in a Single Lane. It is impossible to
swerve back and forth between the northbound and
southbound lanes of a road, or to nearly hit several street
signs, as described by Mr. White, without driving out of a
single lane.
8. It should be noted that the defense put on three
witnesses, the Defendant, his wife, Janet Higgs, and Bruce
Goldberg, all three of whom testified that the Defendant did
not drive his vehicle on the evening of July 18, 2002. Also,
there is no evidence presented which showed that Defendant -
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was, in fact, driving on the date of the alleged offense.
Although the jury, as trier of fact, has the right to believe or
disbelieve all or a portion of witness testimony, a reasonable
person sitting as trier of fact cannot find Defendant was not
driving for the purpose of one offense, yet driving for the
purpose of another offense, especially when the evidence is
uncontroverted as to the guilt of the Defendant, if he was
found to be driving, with respect to the offense on which he
was found not guilty.
9. The only issue the jury had to determine in this
case was whether the Defendant was driving his vehicle on
the evening of July 18,2002. The test for evaluating a
motion for acquittal where the Defendant’s guilt is proven by
circumstantial evidence, is whether there is evidence in the
record from which a jury can find beyond a reasonable doubt
that the circumstances are such as to include every reasonable
hypothesis of innocence. People v. Naranjo, 181 Colo. 273,
509 P.2d 1235 (1973). Given the unique circumstances of
the case at bar and the narrow contested issue in this trial, no
reasonable trier of fact could conclude Defendant was not
guilty, and thus not driving, on one charge, yet find
Defendant guilty, and therefore driving, on another charge.
10. The defense twice during the trial moved for
acquittal based on insufficient evidence identifying the
Defendant as the driver of his vehicle. Both motions were
denied by the Court. See T.Ct.R. p. 163, line 11 - p. 165, line
23; p. 238, line 16 - p. 239, line 4.
11. Pursuant to C.R.Crim.P. 29(c), and based on the
evidence before the Court, the Defendant now renews his
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motion for acquittal and moves this Court for an Order
setting aside the verdict rendered by the jury in this case on
January 6, 2003.
12. In the alternative, pursuant to C.R.Crim.P. 33,
Defendant now moves for a new trial.
13. Defendant asserts that the jury in this trial was
either confused or disregarded the instructions it was required
to follow. Defendant tendered a proposed j jury instruction to
the Court which read,
“Identification of the defendant as driving at the time
and date of the alleged offense is an essential e'ement
to be proved beyond a reasonable doubt by the
People. If you find that the identification evidence in
this case does not inculpate defendant as the driver of
the defendant’s vehicle beyond a reasonable doubt,
then your verdict must be not guilty.” The inclusion
of the tendered instruction by the defense was denied
by the Court and counsel for the defense objected at
the time. See T.Ct.R. p. 123, lines 11-18.
14. The proposed jury instruction was a correct
statement of the law and it correctly instructed the jury as to
the narrow issue the jury had to determine at trial The Trial
Court’s failure to instruct the jury using Defendant’s tendered _
instruction was error. This error caused Defendant undue
prejudice and the error was not harmless error.
15. Defendant asserts that based on the evidence and
narrow issue that was to be decided by the jury at trial, it was
reversible error for the Court to deny Defendant’s jury
instruction regarding identification of the Defendant and to
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deny Defendant’s two motions for acquittal made at trial.
16. The purpose of filing this motion to set aside the
jury’s verdict or for a new trial is to allow this Court a chance
to correct its errors. Losavio v. District Court, 182 Colo.
186, 512 P. 2d 264 (1973). In the case at bar, not only has
this Court made reversible error by not instructing the jury
with the tendered instruction, but the combination of lack of
that instruction and viewing the evidence in the light most
favorable to the People, Defendant-repeats that the jury’s
verdicts are not reasonable and are totally at odds with the
evidence in this case. Defendant asserts that it would be an
abuse of discretion by this Court if it denies this motion.
People v. Jones, 942 P.2d 1258 (Colo. App. 1996).
17. For all the reasons above and in the best interests
of justice, the relief sought herein must be granted.
Dated: February 28, 2003
CRAIG. D. JOHNSON & ASSOCIATES, P.C.
s/ Mardi Moore #28766 for
Craig D. Johnson, #11902
Attorney for Defendant
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CERTIFICATE OF MAILING
I hereby certify that on the 28" day of February, 2003,
I have deposited a true and correct copy of the above and
foregoing MOTION TO SET ASIDE VERD!CT, OR IN
THE ALTERNATIVE, MOTION FOR NEW TRIAL in
the U.S. Mail, postage prepaid, addressed to:
Office of the City Attorney
City of Broomfield
One DesCombes Drive
Broomfield, CO 80028-1415
s/__Lynne Gallagher
APPENDIX F
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COLORADO SUPREME COURT
Court Address: 2 East 14" Avenue, 4" Floor, Denver, CO
80203
Phone No. 303-861-1111
DISTRICT COURT, COUNTY OF BROOMFIELD,
COLORADO
Judge Donald W. Marshall
Case No. 03CV68
Petitioner/Appellant:
JEFF ARNOLD HIGGS
Appellees:
THE PEOPLE OF THE STATE OF COLORADO
Attorney:
CRAIG D. JOHNSON & ASSOCIATES, P.C.
By: Craig D. Johnson, 8 Garden Center, Broomfield, CO
80020
Phone No. 303-466-2335
Fax No. 303-466-6342
E-Mail: cdj@lawyer.com
PETITION FOR WRIT OF CERTIORARI
Petitioner, Jeff Arnold Higgs, by and through his
attorneys Craig D. Johnson & Associates, P.C. and pursuant
to C.A.R. 49 and 53 submits the following Petition for Writ
of Certiorari:
ADVISORY LISTING OF ISSUES PRESENTED FOR
REVIEW
Petitioner asserts that, pursuant to the provisions of
C.A.R. 50, the following issues must be reviewed by the
Colorado Supreme Court as they involve matters of substance
not heretofore determined by the Supreme Court, C.A.R.
50(a)(1); or that the issues presented decide important State
questions which have not been, but should be, determined by
the Supreme Court. C.A.R. 50(a)(2) The advisory listing of
issues presented for review is as follows:
1. As a matter of law, did the trial court err when it
refused Petitioner’s written plea of not guilty and waiver of
advisement of rights under Colo.R.Crim.P. 5 on July 30, 2002,
thereby violating Petitioner’s right to a speedy trial and did the
district court err in affirming the trial court’s ruling?
2. As a matter of law, did the trial court err when it
denied Petitioner’s Motion to Set Aside Verdict or for Judgment
of Acquittal on March 5, 2003 and did the district court err in
affirming the trial court’s ruling?
3. As a matter of law, did the trial court err when it
rejected Petitioner’s tendered Jury Instruction on identification
and did the district court err in affirming the trial court’s ruling?
4. As a matter of law, did the trial court err by not
declaring a mistrial based on the improper argument by the
People during closing arguments of facts not in evidence and
did the district court err in affirming the trial courts’ ruling?
-3la-
OFFICIAL REPORTS OF THE OPINIONS SOUGHT
TO BE REVIEWED
1. Pursuant to C.A.R. 53(a)(2), copies of the following
Orders which are subject to review under this Petition are
contained in Appendix “A” attached : Order of the Broomfield
County District Court (Appellate Court) dated December 5,
2003, affirming the conviction by Broomfield County Court
(Trial Court); Mittimus issued by Broomfield County Court on
March 5, 2003; Order and Judgment of the Trial Court dated
March 5, 2003; and Petitioner’s Motion to Set Aside Verdict, or
in the Alternative, Motion for New Trial filed February 28,
2003.
JURISDICTION OF THE SUPREME COURT
Jurisdiction is conferred on the Colorado Supreme Court
pursuant to C.A.R. 49 , 50, and C.R.S. § 13-6-310, and this
Petition seeks review of the following judgments, decrees or
orders:
1. Petitioner’s Motion to-Set Aside Verdict, or in the
Alternative, Motion for New Trial filed February 28, 2003;
2. Judgment of conviction of the Broomfield County
Court entered on March 5, 2003;
3. Mittimus issued by the Broomfield County Court
entered on March 5, 2003; and
4.Order of the Broomfield County District Court
(Appellate Court) dated December 5, 2003, affirming the
conviction by Broomfield County Court.
- -32a-
There has been no rehearing on this matter and there has
not yet been an order granting an extension of time within
which to file this Petition. Petitioner has, contemporaneously
with the filing of this Petition, also filed a Motion to Permit
Late Filing of a Petition for Writ of Certiorari for the reasons
set forth in that Motion.
STATEMENT OF THE CASE
This is an appeal of the conviction of the Petitioner in
the Broomfield County Court of Driving Under the Influence of
Alcohol, C.R.S. § 42-4-1301, as amended, after jury trial, and
orders entered in that case by the trial court, and the subsequent
appeal of the district court for the 17" Judicial District affirming
the conviction of the Petitioner and affirming the orders of the
trial court. Petitioner was charged with driving under the
influence and failure to drive in a single lane, both pursuant to
a Summons and Complaint issued by the Broomfield Police on
July 17, 2002.
The case was tried in the County Court of Broomfield
before The Honorable Randall J. Davis to a jury of six on
January 6, 2003. Tiie Petitioner was acquitted of the charge of
failure to drive in a single lane but convicted of driving under
the influence of alcohol. The date of entry of conviction was
the date of sentencing, March 5, 2003.
Petitioner timely filed his Notice of Appeal with the
district court after obtaining an extension of time by proper and
timely motion for extension of time to file the Notice of Appeal.
The sentence imposed on the Petitioner was as follows:
thirty days in jail; a fine, costs and statutory surcharges in the
-33a-
total amount of $1,549.00; sixty hours of useful community
service; and compliance with the recommendations of the
Probation Department, including completion of a Track D
Education and Therapy Program, and engagement in monitored
sobriety. ee
ARGUMENT
I. The Trial Court erred when it refused Petitioner’s ———
written plea of not guilty and waiver of advisement of
rights under Colo.R.Crim.P. 5, thereby violating
Petitioner’s right to a speedy trial, and the District Court
erred in affirming this ruling.
As a matter of law, the trial court erred when it did not
accept the Petitioner’s written plea of not guilty and waiver of
advisement of rights, thereby violating Petitioner’s right to a
speedy trial and the district court erred in affirming the ruling
of the trial court.
A defendant is not precluded from asserting his
Constitutional right to a speedy trial simply because trial was
held within the required six month périod.' The circumstances
of each case must be examined to determine whether a speedy
trial has been afforded.’ In making this determination the court
must consider the length of the pretrial delay, the reasons for it,
whether the defendant has demanded a speedy trial, and
- Gelfand v. People, 196 Colo. 487, 586 P.2d !331 (1978).
? Id., citing Medina v. People, 154 Colo. 4, 387 P.2d 733
(1963).
whether any prejudice actually resulted to the defendant.’ None
of those four factors is indispensable to a finding that speedy
trial has been denied. Nor is any one of them ipso facto
sufficient to require such a finding. Rather all are interrelated
and must be considered together with any other relevant
circumstances.’
In this case, the trial court did not accept Petitioner’s
initial plea of not guilty, submitted on July 30, 2002 in his Entry
of Appearance, Plea of Not Guilty and Demand for Jury Trial.
After the initial plea was refused, Petitioner was informed by
the trial court judge that he does not accept pleas until a pretrial
conference is held. The pretrial conference in this case was
held on September 10, 2002, at which time Petitioner’s plea of
not guilty was entered. In other words, Petitioner suffered a 42
day delay in entry of his initial plea. The trial court’s arbitrary
determination of delaying Petitioner’s entry of his initial plea of
not guilty directly affects Petitioner’s Constitutional and
statutory rights to a speedy trial. This is an issue of
Constitutional, and thus, statewide, concern.
This Court has held that “the practice of the trial judge
in postponing arraignment until all pretrial matters are
concluded thwarts the purpose of [C.R.S.] section 18-1-405
[sic] and [Colo.R.] Crim.P. 48(b) and should not be followed.”
, Id., citing Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33
L.Ed.2d 101 (1972).
* Id.
; People v. Chavez, 779 P.2d 375, 378 (Colo. 1989).
-3Sa-
ge en eee ney
The trial judge here postponed arraignment for forty-two days,
until a pretrial conference was held. These actions were not
taken at the instance of the Petitioner. Instead, they were
mandated by the trial court’s own procedure peculiar to this trial
court.
Trial was held on January 6, 2003, one hundred sixty
days after Petitioner’s initial attempt to enter a plea. The reason
for that delay, a pretrial conference, is not even required in a
criminal proceeding and should not be a prerequisite to the
scheduling of a trial date. Had the trial court accepted
Petitioner’s plea on July 30, 2002 when it was first tendered, the
Petitioner would not have been held in a state of limbo for
forty-two days waiting for a court date to be set, thus saving
Petitioner the anxiety and unfair prejudice of waiting for a trial
unnecessarily postponed due to the policies of the trial court
judge.’ Petitioner asserts that this practice could and did
adversely affect his right to a speedy trial.
II. The Trial Court erred when it denied Petitioner’s
Motion to Set Aside Verdict or for Judgment of
Acquittal, and the District Court erred in affirming this
ruling.
. Tongish v. Arapahoe County Court, 775 P.2d 63 (Colo. App.
1989).
: “Prejudice .. . must be defined in the light of the interests the
speedy trial right was designed to assure defendants. These include...
avoiding subjecting the accused to unnecessary anxiety.” Gelfand v.
People, 196 Colo. 487. 586 P.2d 1331 (1978), citing Barker v. Wingo,
407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
-36a- -
As a matter of law, the trial court erred when it did not
grant Petitioner’s Motion to Set Aside Verdict or for Judgment
of Acquittal on March 5, 2003. Both the prosecution and the
defense agreed at trial that the single issue for jury
consideration in the case was whether Petitioner drove his
vehicle on the evening of July 18, 2002. Petitioner contested no
other elements of the charged offenses. No testimony was
presented at trial which placed Petitioner physically behind the
wheel of his automobile or that indicated he drove his
automobile on the night of June 18, 2002. Petitioner asserts
that where a jury finds a defendant not guilty, and thus not
driving, for purposes of one charged offense, and
simultaneously finds a defendant guilty, and thus driving, for
purposes of a second charged offense, there is only one
conclusion; that there is not sufficient evidence in the record
from which the jury could find that the defendant was driving
beyond a reasonable doubt and beyond every reasonable
hypothesis of innocence.* The trial court should have set aside
the jury’s verdict.
Petitioner’s counsel twice moved the trial court for
acquittal, pursuant to Colo.R.Crim.P. 29, based on lack of
evidence identifying Petitioner as the driver of his vehicle.
Both motions were denied by the trial court. To withstand a
motion of acquittal, the prosecution has the burden of
establishing a prima facie case of guilt and must introduce
sufficient evidence to establish guilt beyond a reasonable
5 People v. Naranjo, 181 Colo. 273, 509 P.2d 1235 (1973).
-37a-
= we meng
A St CET OIG RENE | HOR emam
doubt.’ The Prosecutor was unable to bring forward at trial a
single witness who either saw Petitioner driving his vehicle or
could place Petitioner inside his vehicle, and thus did not
establish a prima facie case of guilt against the Petitioner. The
trial court’s denial of acquittal at trial was reversible error based
on the lack of identity evider.ce.
III. The Trial Court erred when it rejected Petitioner’s
tendered Jury Instruction on identification, and the
District Court erred in affirming this ruling.
As a matter of law, the trial court erred when it refused
to submit Petitioner’s tendered Jury Instruction on identification
to the jury. At trial, counsel for Petitioner tendered a proposed
jury instruction which read,
Identification of the defendant as driving at the
time and date of the alleged offense is an
essential element to be proved beyond a
reasonable doubt by the People. If you find that
the identification evidence in this case does not
inculpate defendant as the driver of the
defendant’s vehicle beyond a reasonable doubt,
then your verdict must be not guilty.
This instruction was a paraphrase of the language in Cokley v.
. People v. Bennett, 183 Colo. 125, 515, P.2d 466 (1973), citing
Corbett v. People, 153 Colo. 457, 387 P.2d 409 (1963).
-38a-
People, citing Ortega v. People.'° Although the trial court
conceded the Petitioner’s tendered jury instruction was a correct
statement of the law, it refused to include this tendered jury
instruction. This refusal by the trial court caused undue
prejudice to Petitioner.
Importantly, the proposed identification jury instruction
was a correct statement of the law as iterated in Cokley. The
proposed instruction was also concise and clear and not
redundant guidance for the jury, instructing that identification
of Petitioner as the driver of the Higgs’s vehicle was the
essential predicate to any further deliberation on the guilt or
innocence of Petitioner regarding the charged offenses.
An instruction embodying a defendant’s theory of the
case must be given by the trial court if the record contains any
evidence to support the theory.'' Colorado has never held that
the jury instructions setting forth the elements of the offense
and the burden of proof, standing alone, can encompass,
embody, or take the place of a defendant’s theory of the case.'”
In Denver Tramway this Court said,
There is no question concerning the defendant’s
right to have the jury properly instructed in a
concrete manner upon its theory of the case. . .
'° Cokley v. People, 168 Colo. 52, 449 P.2d 824 (1969), citing
Ortega v. People, 161 Colo. 463, 423 P.2d 21.
'' People v. Hennion, 923 P.2d 256 (Colo. App. 1996).
2 People v. Nunez, 841 P.2d 261 (Colo. 1992).
-39a-
ww ee
. The defendant is entitled to such instructions .
. . unless the court can see that no prejudicial
error resulted from such refusal.'?
Petitioner’s instruction on identification did not simply restate
what was already encompassed in the instructions on the
elements of the specific charges, but it was instead absolutely
necessary to instruct the jury in a concrete manner on
Petitioner’s theory of the case — that he could not be identified
beyond a reasonable doubt as the driver of his vehicle. The
failure of the trial court to allow the tendered instruction was a
violation of Petitioner’s right to a fair trial, which again is a
matter of statewide concern as it affects a Constitutional right
of Petitioner and all other similarly situated persons defending
against criminal charges.
IV. The Trial Court erred by not declaring a mistrial based
on the improper argument by the People during closing
arguments of facts not in evidence, and the District
Court erred in affirming this ruling. .
As a matter of law, the trial court erred by not declaring
a mistrial based on the Prosecutor’s improper argument of facts
not in evidence during closing arguments. The Prosecutor’s
closing arguments included a prejudicial statement of fact not
presented at trial when she stated that “ [Mrs. Higgs] never told
anybody once that she was the driver, not the next day, not a
week after, not two weeks after.” There was no evidence
whatsoever presented at trial regarding any conversations
sa Denver Tramway Co. v. Doyle, 63 Colo. 500, 167 P.777
(1917), quoted in Behr v. McCoy, 138 Colo. 137, 330 P.2d 535 (1958).
-40a-
between Mrs. Higgs and any other person which would in any
way give a good faith factual basis for the clearly erroneous
statement made by the Prosecutor. This was plain error.
The Prosecutor’s closing arguments exceeded the limits
of proper advocacy on her part by arguing alleged facts not in
evidence and undermined the fundamental fairness of the trial,
implicating the due process rights of Petitioner. This
constitutes plain error. Due process will not permit a
Prosecutor to use her closing argument to testify b y mentioning
facts not in evidence to support a finding of guilt.'" Further, the
trial court should have addressed, but did not, the Prosecutor’s
improper argument by making absolutely clear to the jury, prior
to deliberation, that the improper comments of the Prosecutor
were not evidence and could not be considered by the jury in
reaching its verdict.'° The trial court’s silence was plain error
resulting in undue prejudice to Petitioner.
Because the trial court did not declare a mistrial after
closing arguments based on prosecutorial misconduct, thereby
allowing the jury to deliberate with inappropriate and
misleading impressions regarding the nature and scope of the
evidence before it, Petitioner was wrongfully and unfairly
prejudiced and deprived of a fair trial. The failure of the trial
court to declare a mistrial affects Petitioner’s right to a fair trial.
Again, this 1s a Constitutional issue and is therefore an issue of
statewide concern.
4 United States v. Ainesworth, 716 F.2d 769 (10" Cir. 1983).
. See People v. Sexton, 192 Colo. 81, 555 P.2d 1151 (1976).
-4la-
Finally, the district court on appeal upheld the rulings of
the trial court. The district court’s affirmation of the trial
court’s rulings on the issues appealed was error and require
reversal by this Court.
Petitioner requests that this Court issue a Writ of
Certiorari allowing Petitioner to proceed with appeal of all
issues set forth herein and those issues reasonably encompassed
within the stated issues.
Dated this 8"" day of January, 2004.
CRAIG D. JOHNSON & ASSOCIATES, P.C.
s/ Craig D. Johnson
Craig D. Johnson, #11902
Attorney for Petitioner
-42a-
CERTIFICATE OF HAND DELIVERY
I hereby certify that on the 9th day of January, 2004, I
have deposited a true and correct copy of the above and
foregoing PETITION FOR WRIT OF CERTIORARI was
hand delivered to the following:
Robert S. Grant
District Attorney, 17" Judicial District
450 South 4" Avenue
Brighton, Colorado 80601
Broomfield County District Court
17 Descombes Drive
Broomfield, Colorado 80020
Broomfield County Court
17 Descombes Drive
Broomfield, Colorado 80020
s/
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APPENDIX “A”
ORDERS AND OTHER PLEADINGS:
1.
Petitioner’s Motion to Set Aside Verdict, or in the
Alternative, Motion for New Trial filed February 28,
2003.
& Order and Judgment dated March 5, 2003,
Broomfield County Court.
3 Mittimus dated March 5, 2003, Broomfield County
Court.
4. Order dated December 5, 2003, District Court.
STATUTES
l. C.R.S. §13-6-310.
a C.R.S. §42-4-1301.
COUNTY COURT, BROOMFIELD COUNTY,
COLORADO
Case No. 02T712
Court Address: 17 Descombes Drive, Broomfield, Colorado
80020
Phone Number : 303-438-6365
Plaintiff:
PEOPLE OF THE STATE OF COLORADO
Defendant: -
JEFF ARNOLD HIGGS
Attorney:
Craig D. Johnson & Associates, P.CC.
Craig D. Johnson, #11902
Susan M. Spaulding, #30068
8 Garden Center
Broomfield, CO 80020
Phone: 303-466-2335
Fax: 303-466-6342
E-mail: cdj@lawyer.com
MOTION TO SET ASIDE VERDICT, OR IN THE
ALTERNATIVE, MOTION FOR NEW TRIAL
Defendant, by and through his attorneys, Craig D.
Johnson & Associates, P.C. renews his motion for acquittal
to this Court, pursuant to C.R.Crim.P. 29(c), and moves for
an Order setting aside the verdict rendered in this case on
January 6, 2003, or in the alternative, pursuant to
-45a-
C.R.Crim.P. 33, for an Order for a new trial, and as grounds
therefor states:
1. This action involves an alleged driving under the
influence offense that occurred in the City and County of
Broomfield, State of Colorado on July 18, 2002.
2. Trial to a jury was held before this Court on
January 6, 2003 on two charges,
Driving a Vehicle Under the Inflsence of Alcohol and
Failure to Drive in a Single Lane.
3. After presentation of all the evidence, the jury
found the Defendant not guilty on the charge of Failure to
Drive in a Single Lane and guilty on the charge of Driving a
Vehicle Under the Influence of Alcohol. This result is totally
inconsistent with any reasonable conclusion drawn from the
evidence and the jury’s verdict should be set aside and a
judgment of acquittal must be entered in favor of the
Defendant. |
4. The defense stipulated that the Defendant had a
blood alcohol level of .224 on the evening of July 18, 2002.
5. Further, ant “ost importantly to the merits of this
motion, the prosecution and defense agreed on the record at
trial ‘hat the only issue for jury consideration was whether or
not it was the Defendant who was driving his vehicle on the
evening of July 18. See T.Ct.R. p.6, lines 2-10; p. 20, lines 9-
14 and lines 18-21. Essentially, this meant that the jury did
not have to decide the other elements of each offense with
which the Defendant was charged, because all other elements
of each offense were not being contested by Defendant.
-46a-
6. The only witness who testified that he saw the
Defendant’s vehicle weaving in and out of its traffic lane was
Zachary White. Mr. White testified that his attention was
first called toward Defendant’s vehicle when he noticed the
vehicle “swerving into the southbound lanes of Lowell
Boulevard at 136" at approximately 10:22 p.m. on July 18,
2002. .”. Mr. White then testified that the vehicle “swerved
back into the .. . northbound lanes... [a]nd . . . turned
westbound onto 136", [where] he nearly hit several street
signs, so that’s when I decided to call [the police].” See
T.Ct.R. p. 89, lines 6-7 and lines 16-18. This evidence was
not rebutted or refuted by Defendant whatsoever. Therefore,
one can only come to the reasonable conclusion that when the
jury found Defendant not guilty of the offense of Failure to
Drive in a Single Lane, they concluded that the only element
they had to determine as the trier of fact; i.e. whether
Defendant was or was not driving, that Defendant was not
driving.
7. The jury clearly did not find Mr. White’s
testimony regarding his observations on the night of July 19,
2002 to be credible, because it found the Defendant not guilty
of Failure to Drive in a Single Lane. It is impossible to
swerve back and forth between the northbound and
southbound lanes of a road, or to nearly hit several street
signs, as described by Mr. White, without driving out of a
single lane.
8. It should be noted that the defense put on three
witnesses, the Defendant, his wife, Janet Higgs, and Bruce
Goldberg, all three of whom testified that the Defendant did
not drive his vehicle on the evening of July 18, 2002. Also,
there is no evidence presented which showed that Defendant
-47a-
was, in fact, driving on the date of the alleged offense.
Although the jury, as trier of fact, has the right to believe or
disbelieve all or a portion of witness testimony, a reasonable
person sitting as trier of fact cannot find Defendant was not
driving for the purpose of one offense, yet driving for the
purpose of another offense, especially when the evidence is
uncontroverted as to the guilt of the Defendant, if he was
found to be driving, with respect to the offense on which he
was found not guilty.
9. The only issue the jury had to determine in this
case was whether the Defendant was driving his vehicle on
the evening of July 18,2002. The test for evaluating a
motion for acquittal where the Defendant’s guilt is proven by
circumstantial evidence, is whether there is evidence in the
record from which a jury can find beyond a reasonable doubt
that the circumstances are such as to include every reasonable
hypothesis of innocence. People v. Naranjo, 181 Colo. 273,
509 P.2d 1235 (1973). Given the unique circumstances of
the case at bar and the narrow contested issue in this trial, no
reasonable trier of fact could conclude Defendant was not
guilty, and thus not driving, on one charge, yet find
Defendant guilty, and therefore driving, on another charge.
10. The defense twice during the trial moved for
acquittal based on insufficient evidence identifying the
Defendant as the driver of his vehicle. Both motions were
denied by the Court. See T.Ct.R. p. 163, line 11 - p. 165, line
23; p. 238, line 16 - p. 239, line 4.
11. Pursuant to C.R.Crim.P. 29(c), and based on the
evidence before the Court, the Defendant now renews his
-48a-
motion for acquittal and moves this Court for an Order
setting aside the verdict rendered by the jury in this case on
January 6, 2003.
12. In the alternative, pursuant to C.R.Crim.P. 33, |
Defendant now moves for a new trial. ;
13. Defendant asserts that the jury in this trial was
either confused or disregarded the instructions it was required
to follow. Defendant tendered a proposed jury instruction to
the Court which read,
“Identification of the defendant as driving at the time
and date of the alleged offense is an essential element
to be proved beyond a reasonable doubt by the
People. If you find that the identification evidence in
this case does not inculpate defendant as the driver of
the defendant’s vehicle beyond a reasonable doubt,
then your verdict must be not guilty.” The inclusion
of the tendered instruction by the defense was denied
by the Court and counsel for the defense objected at
the time. See T.Ct.R. p. 123, lines 11-18.
14. The proposed jury instruction was a correct
statement of the law and it correctly instructed the jury as to
the narrow issue the jury had to determine at trial The Trial
Court’s failure to instruct the jury using Defendant’s tendered
instruction was error. This error caused Defendant undue
prejudice and the error was not harmless error.
15. Defendant asserts that based on the evidence and
narrow issue that was to be decided by the jury at trial, it was
reversible error for the Court to deny Defendant’s jury
instruction regarding identification of the Defendant and to
-49a-
deny Defendant’s two motions for acquittal made at trial.
16. The purpose of filing this motion to set aside the
jury’s verdict or for a new trial is to allow this Court a chance
to correct its errors. Losavio v. District Court, 182 Colo.
186, 512 P. 2d 264 (1973). In the case at bar, not only has
this Court made reversible error by not instructing the jury
with the tendered instruction, but the combination of lack of
that instruction and viewing the evidence in the light most
favorable to the People, Defendant repeats that the jury’s
verdicts are not reasonable and are totally at odds with the
evidence in this case. Defendant asserts that it would be an
abuse of discretion by this Court if it denies this motion.
People v. Jones, 942 P.2d 1258 (Colo. App. 1996).
17. For all the reasons above and in the best interests
of justice, the relief sought herein must be granted.
Dated: February 28, 2003
CRAIG. D. JOHNSON & ASSOCIATES, P.C.
s/ Mardi Moore #28766 for
Craig D. Johnson, #11902
Attorney for Defendant
-50a-
CERTIFICATE OF MAILING
I hereby certify that on the 28" day of February, 2003,
I have deposited a true and correct copy of the above and
foregoing MOTION TO SET ASIDE VERDICT, OR IN
THE ALTERNATIVE, MOTION FOR NEW TRIAL in
the U.S. Mail, postage prepaid, addressed to:
Office of the City Attorney
City of Broomfield
One DesCombes Drive
Broomfield, CO 80028-1415
s/ Lynne Gallagher
-5la-
on Ne eae
County Court, Broomfield County, State of Colorado
Case #: C0802002T 000712 Div/Room: |
JUDGMENT OF CONVICTION, SENTENCE Original
The People of Colorado vs. HIGGS, JEFF ARNOLD
DOB 10/04/1954 SID
The Defendant was sentenced on: 3/05/2003
People represented by...: BECK, LORI
Defendant represented by: JOHNSON, CRAIG
UPON DEFENDANT’S CONVICTION this date of:
1/6/2003
The defendant pled guilty to:
Count # 1 Charge: Driving Under the Influence
C.R.S. # 42-4-1301(1)(a) Class: M.
Date of offense(s): 7/18/2002 to 7/18/2002 Date of
finding(s): 1/06/2003
IT IS THE JUDGMENT/SENTENCE OF THIS COURT that
the defendant be sentenced to
Probation Alcohol Supervisio 2.00 YEARS COUNT 1
Jail | 30.00 DAYS COUNT 1
JAIL SENTENCE TO BE SERVED AS CONSECUTIVE
WEEKENDS, FRI-SUN AT 8:30 PM
TO START APRIL 11, 2003 NO LATER THAN 8:30 P.M.
/DMC
Assessed Balance
$1,549.00 $1,549.00
-52a-
-52a-
ADDITIONAL REQUIREMENTS
Complete 60.00 hours of Useful Public Service
*** CONSECUTIVE WEEKENDS***
JUDGMENT OF CONVICTION IS NOW ENTERED, IT IS
FURTHER ORDERED OR RECOMMENDED:
DATE: 3/5/03 NPT JUDGE/MAGISTRATE
s/_ Randall J. Davis
RANDALL JOSEPH DAVIS
CERTIFICATE OF SHERIFF
I CERTIFY THAT I EXECUTED THIS ORDER AS
DIRECTED
DATE SHERIFF
BY DEPUTY
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ee ee
ee ee ee
FILED IN BROOMFIELD COUNTY COMBINED COURT
MARCH 05, 2003
Case Number 02T712 Div. 1 ID Number
THE PEOPLE OF THE STATE OF COLORADO
VS.
JEFF ARNOLD HIGGS, DEFENDANT
CONDITIONS OF PROBATION/SENTENCE, FOR THE
OFFENSE(S) OF: DUI
xx _ You are hereby sentenced to a term of probation for a
period of 24___xx_months/years.
Probation reinstated |
and shall comply with the following conditions and those
listed in Section (A)(B) on the reverse side of this form. You
may be supervised in specialized programs, ad determined by
the Probation Department, with additional conditions
imposed.
xx YOU ARE ORDERED TO REPORT
IMMEDIATELY TO THE:
xx CLERKS OFFICE _xx__ PROBATION DEPT.
ALCOHOL UNIT INTERVENTION ____
RMOMS :
You are hereby sentenced to a term of unsupervised
probation for a period of Months. You need not report
to any probation office, as your case will be reviewed by the
Court.
As acondition of your sentence, you shall pay:
TOTAL FINES & COSTS: $1,000 + $349 + 200
payable to: CLERK OF THE COMBINED COURT
-54a-
is eT —
**IF YOU ARE IN CUSTODY, YOU MUST APPEAR
WITHIN 48 HOURS OF YOUR RELEASE FROM
JAIL**
A supervision fee of $35 per month is to be paid
directly to INTERVENTION. 7
CONDITIONS OF PROBATION/SENTENCE:
You shall participate in, cooperate with, pay any fees
required, and successfully complete the following:
Substance abuse evaluation/treatment
Mental health evaluation/counseling or treatment
a. Domestic violence evaluation
b. Domestic Violence counseling
Useful Public Service of 60 hours to be completed by
Ie
XX
fsoiaz Ale Dz
Level I alcohol education.
Level II alcohol education BAC .224 PRIORS 2
Level II alcohol therapy 86 hours
Intensive outpatient substance abuse treatment
Aftercare as required by treatment/probation
“XX. 10. Monitored sobriety required by treatment/probation
- Antabuse (Circled)
Urine screens (Circled)
Breath screens (Circled) (circle)
|
Ps
Pl oe
XX
Track D on weekends Friday 8:30 a.m. to Sunday 8:30
p.m. (Handwritten on document)
11. MADD Victim Impact panel
xx 12. Jail for 30 days suspended to 30 days beginning on
4/11/03 at 8:30 p.m.
Work release Treatment release
en aA ER oO ae WT MO
Type:
Electronic Monitoring for __ Day(s)
on/before
Se a Am Soa en aa
-55a-
____ 13. Get alcohol evaluation and treatment as
recommended.
___ 14. Other:
___ Nocontact order vacated ___ No contact order
continues for term of supervision
I have received a copy of these conditions and have read them
carefully with full understanding. | understand that if I
violate these conditions or those listed on the reverse of this
form, I may be brought before the Court for revocation and
imposition of sentence.
JUDGE: Randal J. Davis Date 3/5/03
Defendant: Jeff Higgs Date
Address City Zip
Phone (home) (work) Social Security Number___
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DISTRICT COURT, BROOMFIELD COUNTY,
COLORADO |
Case No. 2003C V68, Div: A, Ctrm: 2
Court Address: 17 Descombes Drive, Broomfield, CO 80020
JEFF ARNOLD HIGGS
Appellant,
V.
PEOPLE OF THE STATE OF COLORADO
Appellee.
-
ORDER
This is an appeal from the County Court for
Broomfield County. The court has received and reviewed the
certified record from the County court and the briefs of the
parties. The Court now dispenses with oral argument and
rules on the appeal as stated herein.
On July 17, 2002, the appellant was charged with
driving under the influence and failure to drive in a single
lane. The case was tried before the Honorable Randall J.
Davis and a jury of six on January 6, 2003. Appellant was
acquitted of the charge of failure to drive in a single lane and
convicted of driving under the influence. The defendant
raises the following issues for appellate review: (1) Has
appellant's constitutional right to a speedy trial been violated;
(2) Did the trial court err when it denied appellant's motion
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for judgment of acquittal; (3) Did the trial court err when it
rejected appellant's tendered jury instruction on
Identification; (4) Did the trial court err by not granting a
mistrial based on statements made during the prosecution's
closing arguments.
I. Speedy trial
Appellant asserts a violation of his constitutional right
to a speedy trial. The appellant has not asserted a statutory
right to a speedy trial under C.R.S. 18-4-104, as the record
reflects that a trial was held within one-hundred and eighty
days from the initial plea of not guilty. In fact, the trial was
held less than six months after the date of the offense.
Defendant bases his denia! of his right to speedy trial on a
forty-two day delay between the time he first offered a not
guilty plea to the date the court accepted the plea.
The constitutional right to a speedy trial, derived from
U.S Const. Amend. 6, and Colo. Const. art. II. § 16, is
distinct from the statutory speedy trial right and the
determination as to one does not necessarily dispose of the
other. People v. Hogland, 543 P.2d 1298 (1975).
The defendant carries the burden of proving a
violation of a right to a speedy trial. People v. Velasquez, 641
P.2d 943 (Colo. 1982). Whether a defendant's speedy trial
right has been violated is determined by a balancing of four
factors: the length of the delay; the reason for the delay; the
defendant's assertion of his right to a speedy trial; and the
prejudice to the defendant. Barker v. Wingo, 407 U.S. 514
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(, /72). The purpose of the balancing analysis is to protect the
defendant from undue prejudice. Prejudice may include, inter
alia, the impact of the delay upon the ability to present a
defense, upon the avaiiability of evidence, and upon the cost
of the proceedings. People v. Harris, 914 P.2d 425 (Colo.
App. 1995). Where the period intervening between the initial
filix of the criminal complaint and trial was neither
excessive nor unjustified, and where the defendant failed to
establish that his defense was in any manner prejudiced, the
defendant was not denied constitutional right to speedy trial.
People v. Velasquez, 641 P.2d 943 (1982).
The appellant has not made any showing of facts
sufficient to establish that the forty-two day delay to set his
case for trial, adversely impacted his ability to present a
defense. He has not demonstrated that any evidence became
unavailable, or that the delay caused him to incur additional
costs. Rather, the appellant asserts a violation of his speedy
trial right from the anxiety caused by being forced to wait an
extra forty-two days to set a trial date. The appellant's anxiety
is unfortunate, but the delay must operate as a prejudice, and
thus, the appellant's anxiety is a non-consequence. The
appellant has failed to establish that his defense to the
charges was in any manner prejudiced by the period
intervening between the filing of the complaint and the trial
date.
II. Motion for Judgment of Acquittal
Appellant asserts that the trial court improperly
denied his motion for judgment of acquittal. Specifically,
Appellant contends there was insufficient evidence to find
guilt beyond reasonable doubt.
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ail tea hate nt
Upon a defendant's motion for judgment of acquittal,
the prosecution is given the benefit of every reasonable
inference which might be fairly drawn from the evidence.
People v. Hollenbeck, 944 P.2d 537 (Colo. App. 1996). The
proper standard to be applied to a defendant's motion for
acquittal is whether the relevant admissible evidence, both
direct and circumstantial, when viewed in the light most
- favorable to the prosecution, is substantial and sufficient to
support a conclusion by a reasonable mind that the defendant
is guilty of the charge beyond a reasonable doubt. Peopie v.
Gonzales, 666 P.2d 123 (Colo. 1983) (emphasis added).
Finally, a court properly denies a defendant's motion for
judgment of acquittal at the conclusion of all of the evidence
where the question of credibility of the witnesses and the ©
ultimate guilt of defendant remain, for such matters are for
the jury's determination. Roybal v. People, 493 P.2d 9 (1972).
The record reflects that the only issue with regard to
the driving under the influence charge was whether the
appellant was driving his vehicle on the night in question. At
trial, defendant offered evidence that his wife was driving the
vehicle and he was a passenger. However, a witness testified
that a male with short black hair was driving the appellant's
vehicle on the night in question. The vehicle was later parked
in appellant's garage, with one person seated in the driver's
seat. Moments later the appellant was standing behind the
vehicle. :
This testimony gives rise to a reasonable inference
that appellant drove the vehicle home. The court finds that
the record contains ample, circumstantial evidence to permit
the jury to conclude that the appellant committed the offense
of driving under the influence. Therefore, the trial court
correctly reserved the issue of ultimate guilt for the jury's
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determination.
Defendant also argues that since the jury found
defendant not guilty of failure to drive in a single lane the
verdicts in the case are inconsistent. He argues the jury had
found he was not driving for one count and was driving for
the other. This argument is unpersuasive as there is no reason
for this court to conclude that the jury's verdict of not guilty
on the driving in a single lane was based on the identity of
driver.
For the reasons stated herein, the court concludes the
county court did not err in denying appellant's motion for
judgment of acquittal.
Ill. Jury Instructions
The appellant also contends that the trial court erred when it
refused to tender his jury instruction. If a tendered
instruction sets forth a theory of the case which amounts to
nothing more than a general denial of the act, or if the
instruction is already encompassed in other instructions, the
defendant is not entitled to have his theory of the case
reiterated in a separate instruction. People v. Young, 710
P.2d 1140 (Colo. App. 1985) (emphasis added).
In the present case, the appellant tendered an
instruction to the court which explained to the jury the issue
of identification. However, the court had already provided
instructions including the elements of the crime that must be
proven. These elements were in instruction number nine and
included an instruction that it was necessary to determine that
the defendant drove the vehicle. Therefore, the trial court did
not err for refusing to tender the appellant's duplicate
instruction to the jury.
-6la-
IV. Closing Arguments
The appellant also contends that the trial court erred
by not granting a mistrial based on statements made during
the prosecutor's closing argument.
When an alleged error consists of prosecutorial
misconduct and was not preserved by a contemporaneous
objection, it will not be considered on appeal unless it was
plain error affecting the substantial rights of the defendant.
Taylor v. People, 723 P.2d 131 (1986). The determination
whether closing argument is improper is a matter committed
to the discretion of the trial court. People v. Shepherd, 43
P.3d 693 (Colo. App. 2001).
The record indicates that the anpellant did not make
an objection to the prosecutor's statements during closing
arguments. Therefore, the only issue for the court's
consideration is whether it was plain error when the ~rial
court, sua sponte, did not declare a mistrial.
The court recognizes that our system of justice cannot
tolerate verdicts based on bias and prejudice rather than on
relevant facts and applicable law. However, given the trial
court's broad discretion, the record reveals that the statements
made by the prosecutor did not amount to such a level as to”
constitute plain error within the meaning of Crim. P. 52(b).
For the reasons stated herein, the conviction of
appellant in the county court is affirmed.
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Dated at Broomfield, Colorado this 5th day of
December, 2003.
By the court:
s/_ Donald W. Marshall, Jr.
Donald W. Marshall, Jr.
CERTIFICATE OF MAILING
I hereby certify that the foregoing document was sent
via JusticeLink (e-file) to all counsel of record and mailed by
the Court to all pro se parties this Sth day of December, 2003.
s/
Division Clerk
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CO ST § 13-6-310 C.R.S.A. § 13-6-310
WEST'S COLORADO REVISED STATUTES
ANNOTATED TITLE 13. COURTS AND COURT
PROCEDURE COURTS OF RECORD
ARTICLE 6. COUNTY COURTS
PART 3. GENERAL PROCEDURAL PROVISIONS §13-6-
310. Appeals from county court
(1) Appeals from final judgments and decrees of the county
courts shall be taken to the district court for the judicial
district in which the county court entering such judgment is
located. Appeals shall be based upon the record made in the
county court. ,
(2) The district court shall review the case on the record on
appeal and affirm, reverse, remand, or modify the judgment;
except that the district court, in its discretion, may remand the
case for a new trial with such instructions as it may deem
necessary, or it may direct that the case be tried de novo
before the district court.
(3) Repealed by Laws 1985, HB.1074, § 12.
(4) Further appeal to the supreme court from a determination
of the district court in a matter + Spee to such court from
the county court may be made only upon writ of certiorari
issued in the discretion of the supreme court and pursuant to
such rules as that court may promulgate.
CREDIT(S)
Amended by Laws 1985, H.B.1074, §§ 5,12.
<General Materials (GM) - References, Annotations, or
Tables>
HISTORICAL AND STATUTORY NOTES
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1997 Main Volume
The 1985 amendment repealed subsec. (3), which read
"In counties in which a superior court has been established,
appeals from the county court shall be taken to the superior
court rather than the district court. All of the provisions of
articles 13 to 18 of this chapter governing appeals from the
“aunty court to the district courts are applicable when the
appeal is taken to the superior court pursuant to this
section
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CO ST § 42-4-1301 C.R.SA. § 42-4-1301
WEST’S COLORADO REVISED STATUTES
ANNOTATED TITLE 42. VEHICLES AND TRAFFIC
REGULATION OF VEHICLES AND TRAFFIC
ARTICLE 4. REGULATION OF VEHICLES AND
TRAFFIC~ PART 13. ALCOHOL AND DRUG OFFENSES
§42-4-1301. Driving under the
influence—driving while impaired—driving
with excessive alcoholic content—penalties
( | Ya) It is a misdemeanor for any person who is under the
influence of alcohol or one or more drugs, or a combination
of both alcohol and one or more drugs, to drive any vehicle in
this state.
(b) It is a misdemeanor for any person who is impaied by
alcohol or by one or more drugs, or by a combination of |
alcohol and one or more drugs, to drive any vehicle in this
State.
(c) It is a misdemeanor for any person who is an habitual user
of any controlled substance defined in section
12-22-303(7) C.R.S., to drive any vehicle in this state.
(d) For the purposes of this subsection (1), one or more drugs
shall mean all substances defined as a drug in section 12-22-
303(13). C.R.S., and all controlled substances defined in
section 12-22-303(7), C.R.S., and glue- sniffing, aerosol
inhalation, and the inhalation of any other toxic vapor or
vapors.
(e) The fact that any person charged with a violation of this
subsection (1) is or has been entitled to use one or more drugs
under the laws of this state, including, but not limited to, the
medical use of marijuana pursuant to section 18-18-406.3,
C.RS. shall not constitute a defense against any charge of
violating this subsection (1).
(f) "Driving under the influence" means driving a vehicle
when a person has consumed alcohol or one or more drugs,
or a combination of alcohol and one or more drugs, whic
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alcohol alone, or one or more drugs alone, or alcohol
combined with one or more drugs affects the person to a
degree that the person is substantially incapable, either
mentally or physically, or both mentally and physically, to
exercise clear judgment, sufficient physical control, or due
care in the safe operation of a vehicle.
(g) "Driving while ability impaired" means driving a vehicle
when a person has consumed alcohol or one or more drugs,
or a combination of both alcohol and one or more drugs,
which alcohol alone, or one or more drugs alone, or alcohol
combined with one or more drugs, affects the person to the
slightest degree so that the person is less able than the person
ordinarily would have been, either mentally or physically, or
both mentally and physically, to exercise clear judgment,
sufficient physical control, or due care in the safe operation
of a vehicle.
(h) Pursuant to section 16-2-106, C.R.S., in charging the
offense of DUI, it shall be sufficient to describe the offense
charged as "drove a vehicle under the influence of alcohol or
drugs or both".
(i) Pursuant to section 16-2-106, C.R.S., in charging the
offense of DW AI, it shall be sufficient to describe the
offense charged as "drove a vehicle while impaired by
alcohol or drugs or both",
(2)(a) It is # misdemeanor for any person to drive any
vehicle in this state when the person's BAC is 0.10 or more
at the time of driving or within two hours after driving.
During a trial, if the state's evidence raises the issue, or if a
defendant presents some credible evidence, that the
defendant consumed alcohol between the time that the
defendant stopped driving and the time that testing occurred,
such issue shall be an affirmative defense, and the
prosecution must establish beyond a reasonable doubt that
the minimum 0.10 blood or breath alcohol content required
in this paragraph (a) was reached as a result of alcohol
consumed by the defendant before the defendant stopped
driving.
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(a.5) It is a class A traffic infraction for any person under
twenty-one years of age to drive any vehicle in this state
when the person's BAC, as shown by analysis of the person's
breath, is at least 0.02 but not more than 0.05 at the time of
driving or within two hours after driving.
(b) In any prosecution for the offense of DUI per se, the
defendant shall be entitled to offer direct and circumstantial
evidence to show that there is a disparity between what the
tests show and other facts so that the trier of fact could infer
that the tests were in some way defective or inaccurate. Such
evidence may include testimony of nonexpert witnesses
relating to the absence of any or all of the common
symptoms or signs of intoxication for the purpose of
impeachment of the accuracy of the analysis of the person's
blood or breath.
—— to section 16-2-106, C.R.S., in charging the
offense of DUT per se, it shall be sufficient to describe the
offense charged as "drove a vehicle with excessive alcohol
content".
(3) The offenses described in subsections (1) and (2) of this
section are strict liability offenses.
(4) No court shall = a plea of guilty to a non- alcohol-
related or non- drug-related traffic offense or guilty to the
offense of UDD from a person charged with DUI, DUI per
se, DWAI, or habitual user: except that the court may accept
a plea of guilty to a non-alcohol-related or non-drug- related
traffic offense or to UDD upon a good faith representation
by the prosecuting attorney that the attorney could not
establish a prima facie case if the defendant were brought to
trial on the original alcohol-related or drug-related offense.
(5) Notwithstanding the provisions of section 18-1-408.
C.R.S., during a trial of any person accused of both DUI and
DUI per se, the court shatl not require the prosecution to
elect between the two violations. The court or a jury may
consider and convict the person of either DUI or DWAI, or
DUI per se, or both DUI and DUI per se, or both DWAI and
DUI per se. If the person is convicted of
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more than one violation, the sentences imposed shall run
concurrently.
(6)(a) In any prosecution for DUI or DWAI, the defendant's
BAC at the time of the commission of the alleged offense or
within a reasonable time thereafter gives rise to the
following presumptions or inferences:
(I) If at such time the defendant's BAC was 0.05 or less, it
shall be presumed that the defendant was not under the
influence of alcohol and that the defendant's ability to
operate a vehicle was not impaired by the consumption of
alcohol.
(1) If at such time the defendant's BAC was in excess of
0.05 but less than 0.10, such fact gives rise to the
permissible inference that the defendant's ability to operate
a vehicle was impaired by the consumption ef alcoho!, and
such fact may also be considered with other competent
evidence in determining whether or not the defendant was
under the influence of alcohol.
(III) If at such time the defendant's BAC was 0.10 or more,
such fact gives rise to the permissible inference that the
defendant was under the influence of alcohol.
(b) The limitations of this subsection (6) shall not be
construed as limiting the introduction, reception, or
consideration of any other competent evidence bearing upon
the question of whether or not the defendant was under the
influence of alcohol or whether or not the defendant's
ability to operate a vehicle was impaired by the
consumption of alcohol.
(c) In all actions, suits, and judicial proceedings in any court
of this state concerning alcohol-related or drug-related
traffic offenses, the court shall take judicial notice of
methods of testing a person's alcohol or drug level and of
the design and operation of devices, as certified by the
department of public health and environment, for — a
person's blood, breath, saliva, or urine to determine suc
person's alcohol or drug level. This paragraph (c) shall not
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prevent the necessity of establishing during a trial that the
testing devices used were working properly and that such
testing devices were properly operated. Nothing in this
paragraph (c) shall preclude a defendant from offering
evidence concerning the accuracy of testing devices.
(d) If a person refuses to take or to complete, or to
cooperate with the tat of, any test or tests as
provided in section 42-4-1301.1 and such person
subsequently stands trial for DUI or DWAI, the refusal to
take or to complete, or to cooperate with the completing of,
any test or tests shall be admissible into evidence at the
trial, and a person may not claim the privilege against self-
incrimination with regard to admission of refusal to take or
to complete, or to cooperate with the completing of, any test
or tests.
(e) Involuntary blood test--admissibility. Evidence acquired
through an involuntary blood test pursuant to section 42-4-
1301.(3) shall be admissible in any prosecution for DUT,
per se, DWAL, habitual user, or UDD, and in any
prosecution for criminally negligent homicide pursuant to
section 18-3-105. C.R.S., vehicular homicide pursuant to
section 18-3-106(1)(b). CRS. assault in the third degree
pursuant to section 18-3-204, C.R.S., or vehicular assault
pursuant to section 18-3-205( I )(b), C.R.S.
(f) Chemical test-admissibility. Strict compliance with the
rules and regulations prescribed by the department of public
health and environment shall not be a prerequisite to the
admissibility of test results at trial unless the court finds that
the extent of noncompliance with a board of health rule has
so impaired the validity and reliability of the testing method
and the test results as to render the evidence inadmissible.
In all other circumstances, failure to strictly comply with
such rules and regulations shall only be considered in the
weight to be given to the test results and not to the
admissibility of such test results.
(g) It shall not be a prerequisite to the admissibility of test
results at trial that the prosecution present testimony
concerning the composition of any kit used to obtain blood,
urine, saliva, or breath specimens. A sufficient evidentiary
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foundation concerning the compliance of such kits with the
rules and regulations of the department of public health and
environment shall be established by the introduction of a
copy of the manufacturer's or supplier's certificate of
compliance with such rules and regulations if such
certificate specifies the contents, sterility, chemical makeup,
and amounts of chemicals contained in such kit.
(h) In any trial for a violation of this section, the testimony
of a law enforcement officer that he or she witnessed the
taking of a blood specimen by a person who the law
enforcement officer reasonably believed was authorized to
withdraw blood specimens shall be sufficient evidence that
such person was so authorized, and testimony from the
person who obtained the blood specimens concerning such
person's authorization to obtain blood specimens shall not
be a prerequisite to the admissibility of test results
concerning the blood specimens obtained.
~~
(1)(1) Following the lawful contact with a person who has
been driving a vehicle, and when a law enforcement officer
reasonably suspects that a person was driving a vehicle
while under the influence of or while impaired by alcohol,
the law enforcement officer may conduct a preliminary
screening test using a device approved by the executive
director of the department of public health and environment |
after first advising the driver that the driver may either |
refuse or agree to provide a sample of the driver's breath for
such preliminary test; except that, if the driver is under
twenty-one years of age, the law enforcement officer may,
after providing such advisement to the person, conduct such
preliminary screening test if the officer reasonably suspects
that the person has consumed any alcohol.
(II) The results of this preliminary screening test may be
used by a law enforcement officer in determining whether
probable cause exists to believe such person was driving a
vehicle in violation of this section and whether to
administer a test pursuant to section 42-4-1301.1(2).
(III) Neither the results of such preliminary screening test
nor the fact that the person refused such test shall be used in
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any court action except in a hearing outside of the presence
of a jury, when such hearing is held to determine if a law
enforcement officer had probable cause to believe that the
driver committed a violation of this section. The results of
such preliminary screening test shall be made available to
the driver or the driver's attorney on request.
(7) Penalties. (a)(I) Except as otherwise provided in
subparagraphs (II) and (IV) of this Tha (a), every
person who is convicted of DUI, DUI per se, or habitual
user shall be punished by:
(A) Imprisonment in the county jail for not less than five
days nor more than one year, the minimum period of which
shall be mandatory except as otherwise provided in section
42-4-1301.3; and
(B) In the court's discretion, a fine of not less than three
hundred dollars nor more than one thousand dollars; and
(C) Not less than forty-eight hours nor more than ninety-six
hours of useful public service, the performance of the
minimum period of which shall be mandatory, and the
court shall have no discretion to suspend the mandatory
minimum period of performance of such service.
(II) Upon conviction of a violation described in sub-
subparagraph (A) or (B) of subparagraph (III) of this
paragraph (a), an offender shall be punished by:
(A) Imprisonment in the county jail for not less than ninety
days nor more than one year, the minimum period of which
shall be cmp’ 6 except that the court may suspend up
to eighty days of the period of imprisonment if the offender
complies with the provisions of section 42-4-1301.3, and
(B) In the court's discretion, a fine of not less than five
hundred dollars nor more than one thousand five hundred
dollars; and
(C) Not less than sixty hours nor more than one hundred
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twenty hours of useful public service, the performance of
the minimum period of which shall be mandatory, and the
court shall have no discretion to suspend the mandatory
minimum period of performance of such service.
(111) Subparagraph (II) of this paragraph (a) shall apply to:
(A) A conviction for DUI, DUI per se, or habitual user,
which violation occurred at any time after the date of a
previous violation, for which there has been a conviction,
for DUI, DUI per se, or habitual user, or for vehicular
homicide pursuant to section 18-3-106( 1)(b )(I), C.R.S., or
vehicular assault pursuant to section 18-3-205( 1 )(b )(1),
C.R.S., or of driving while such person's driver's license
was under restraint pursuant to section 42-2-138(4)(b); or
(B) A conviction fer DUI, DWAI, or DUI per se when the
person's BAC was 0.20 or more at the time of driving or
within two hours after driving.
(IV) Upon a conviction for DUI, DUI per se, or habitual
user, which violation occurred at any time after the date of
a previous violation, for which there has been a conviction,
for DWAI, an offender shall be punished by:
(A) Imprisonment in the county jail for not less than
seventy days nor more than one year, the minimum period
of which shall be mandatory; except that the court may
suspend up to sixty-three days of the period of
imprisonment if the offender complies with the provisions
of section 42-4-1301.3; and
(B) In the court's discretion, a fine of not less than four
hundred fifty dollars nor more than one thousand five
hundred dollars; and
(C) Not less than fifty-six hours nor more than one hundred
twelve hours of useful public service, the performance of
the minimum period of service which shall be mandatory,
and the court shall have no discretion to suspend the
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mandatory minimum period of performance of such
service.
(b)(I) Except as otherwise provided in subparagraphs (II)
and (III) of this paragraph (b), every person who is
convicted of DWAI shall be punished by:
(A) Imprisonment in the county jail for not less than two
days nor more than one hundred eighty days, the minimum
period of which shall be mandatory except as provided in
section 42-4-1301.3; and
(B) In the court's discretion, a fine of not less than one
hundred dollars nor more than five hundred dollars; and
(C) Not less than twenty-four hours nor more than forty-
eight hours of useful public service, the performance of the
minimum period of which shall be mandatory, and the
court shall have no discretion to suspend the mandatory
minimum period of performance of such service.
(II) Upon conviction of a second or subsequent offense of
DWAI, an offender shall be punished by:
(A) Imprisonment in the county jail for not less than forty-
five days nor more than one year, the minimum period of
which shall be mandatory; except that the court may
suspend up to forty days of the period of imprisonment if
re rg epee complies with the provisions of section 42-4-
3; an
(B) In the court's discretion, a fine of not less than three
hundred dollars nor more than one thousand dollars; and
(C) Not less than forty-eight hours nor more than ninety-six
hours of useful public service, the performance of the
minimum period of which shall be mandatory, and the
court shall have no discretion to suspend the mandatory
minimum period of performance of such service.
(III) Upon conviction for DWAI, which violation occurred
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at any time after the date of a previous violation, for which
there has been a conviction, for DUI, DUI per se, or
habitual user, or vehicular homicide pursuant to section 18-
3-106(1)(b)(1). C.R.S., or vehicular assault pursuant to
section 18-: (1)(b) (1), C.R.S., or of driving while
such person's driver's license was under restraint as
described in section 42-2-138(4)(b), an offender shall be
punished by:
(A) Imprisonment in the county jail for not less than sixty
days nor more than one year, the minimum period of which
shall be mandatory; except that the court may suspend up
to fifty-four days of the period of imprisonment if the
offender complies with the provisions of section 42-4-
1301.3; and
(B) In the court's discretion, a fine of not less than four
hundred dollars nor more than one thousand two hundred
dollars; and
(C) Not less than fifty-two hours nor more than one
hundred four hours of useful public service, the
performance of the minimum period of which shall be
mandatory, and the court shall have no discretion to
suspend the mandatory minimum period of performance of
such service.
(IV) Deleted by Laws 2002, Ch. 342, § 2, eff. July 1, 2002.
(cI) For the purposes of paragraphs (a) and (b) of this
subsection (7), a person shall be Sonne to have a previous
conviction for DUI, DUI per se, DWAL, or habitual user, or
vehicular homicide pursuant to section 18-3-106(1)(b)1).
C.R.S., or vehicular assault pursuant to section 18-3-
205(1(b) (I). C.R.S., if such person has been convicted
under the laws of any other state, the United States, or an
territory subject to the jurisdiction of the United States o
an act that, if commited within this state, would constitute
the offense of DU1, DUI per se, DWAI., or habitual user, or
vehicular (II) For sentencing purposes concerning
convictions for second and subsequent offenses, prima
facie proof of a defendant's previous convictions shall be
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established when the prosecuting attorney and the
defendant stipulate to the existence of the prior conviction
or convictions or the prosecuting attorney presents to the
court a copy of the driving record of the defendant
provided by the department of revenue of this state, or
provided by a similar agency in another state, that contains
a reference to such previous conviction or convictions or
presents an authenticated copy of the record of the previous
conviction or judgment from any court of record of this
state or from a court of any other state, the United States, or
any territory subject to the jurisdiction of the United States.
The court shall not proceed to immediate sentencing when
there is not a stipulation to prior convictions or if the
prosecution requests an opportunity to obtain a driving
record or a copy of a court record. The prosecuting attorney
shall not be required to plead or prove any previous
convictions at trial, and sentencing concerning convictions
for second and subsequent offenses shall be a matter to be
determined by the court at sentencing.
(III) As used in this part 13, “convicted” includes a plea of
no contest accepted by the court.
(d) In addition to the penalties prescribed in this subsection
(7):
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APPENDIX G
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CO ST § 42-4-1301 C.R.S.A. § 42-4-1301 5
WEST'S COLORADO REVISED STATUTES
ANNOTATED
TITLE 42. VEHICLES AND TRAFFIC
REGULATION OF VEHICLES AND TRAFFIC
ARTICLE 4. REGULATION OF VEHICLES AND
TRAFFIC
PART 13. ALCOHOL AND DRUG OFFENSES
§ 42-4-1301. Driving: under the influence--driving
while impaired-driving with excessive alcoholic
content—penalties
(1)(a) It is a misdemeanor for any person who is under the
influence of alcohol or one or more drugs, or a combination
of both alcohol and one or more drugs, to drive any vehicle
in this state.
(b) It is a misdemeanor for any person who is impaired by
alcohol or by one or more drugs, or by a combination of
alcohol and one or more drugs, to drive any vehicle in this
state.
(c) It is a misdemeanor for any person who is an habitual
user of any controlled substance defined in section 12-22-
303(7), C.RS., to drive any vehicle in this state.
(d) For the purposes of this subsection (1), one or more
drugs shall mean all substances defined as a drug in section
12-22-303(13), C.R.S., and all controlled substances
defined in section 12-22-303(7), C.R.S., and glue sniffing,
aerosol inhalation, and the inhalation of any other toxic
vapor or vapors.
(e) The fact that any person charged with a violation of this
subsection (1) is or has been entitled to use one or more
drugs under the laws of this state, including, but not limited
to, the medical use of marijuana pursuant to section 18-18-
406.3, C.R.S., shall not constitute a defense against any
charge of violating this subsection (1).
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(f) “Driving under the influence” means driving a vehicle
when a person has consumed alcohol or one or more
or a combination of alcohol and one or more drugs, whi
alcohol alone, or one or more drugs alone, or alcohol
combined with one or more drugs affects the person to a
degree that the person ts substantially incapable, either
mentally or physically, or both mentally and physically, to
exercise Clear judgment, sufficient physical control, or due
care in the safe tion of a vehicle.
(g) “Driving while ability impaired" means driving a
vehicle when a person has consumed alcohol or one or
more drugs, or a combination of both alcohol and one or
more drugs, which alcohol alone, or one or more drugs
alone, or alcohol combined with one or more drugs, affects
the person to the slightest a ee so that the person is less
able than the person ordinarily would have been, either
mentally or physically, or both mentally and physically, to
exercise Clear fadgment, sufficient physical control, or due
care in the safe operation of a vehicle.
(h) Pursuant to section 16-2-106. C.R.S., in charging the
offense of DUI, it shall be sufficient to describe the offense
charged as “drove a vehicle under the influence of alcohol
or drugs or both".
(i) Pursuant to section 16-2-106. C_R.S.. in charging the
offense of DWAL it shall be sufficient to describe the
offense charged as “drove a vehicle while impaired by
alcohol or drugs or both".
(2a) It is a misdemeanor for any person to drive any
sn in this state when the person's BAC is 0.10 or more
at the time of driving or within two hours after driving.
a trial, if the state's evidence mises the issue, or if'a
def t presents some credible evidence, that the
defendant consumed alcohol between the time that the
defendant s driving and the time that testing
occurred, such issue shall be an affirmative defense, and
the prosecution must establish beyond a reasonable doubt
that the minimum 0.10 blood or breath alcohol content
required in this paragraph (a) was reached as a result of
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—_ |
LR Be. 206 § Spite ep k
alcohol consumed by the defendant before the defendant
stopped driving.
(a5) It is a class A traffic infraction for any person under
twenty-one years of age to drive any vehicle im this state
when the person's BAC, as shown by analysis of the
person's breath, is at least 0.02 but not more than 0.05 at
the time of driving or within two hours after dnving.
(b) In any prosecution for the offense of DUI per se, the
defendant shall be entitled to offer direct and circumstantial
evidence to show that there is a disparity between what the
tests show and other facts so that the trier of fact could
infer that the tests were in some way defective or
inaccurate. Such evidence may include testimony of
nonexpert witnesses relating to the absence of any or all of
the common symptoms or signs of intoxication for the
purpose of impeachment of the accuracy of the analysis of
the person's blood or breath.
(c) Pursuant to section 16-2-106, C.RS., in charging the
offense of DUI per se, it shall be sufficient to describe the
offense charged as "drove a vehicle with excessive alcohol
content”.
(3) The offenses described in subsections (1) and (2) of this
section are strict liability offenses.
(4) No court shall a of guilty to a non- alcohol-
related or non- traffic offense or guilty to the
offense of UDD from a person with DUI, DUI per
prima
brought to trial on the original alcohol-related or drug-
related offense.
(5) Notwithstanding the provisions of section 18-1-408
C.R.S., during a trial of any person accused of beth DUI!
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and DUI per se, the court shall not require the prosecution
to elect between dle two violations. The court or a jury
may consider and convict the person of either DUI or
DWAL or DUI per se, or both DUI and DUI per se, or both
DWAI and DUI per se. If the person is convicted of more
than one violation, the sentences imposed shall run
concurrently.
(Sa) In any prosecution for DUI or DWAL, the defendant's
BAC at the time of the commission of the alleged offense or
within a reasonable time thereafter gives mse to the
following presumptions or inferences:
(I) If at such time the defendant's BAC was 0.05 or less, it
shall be presumed that the defendant was not under the
influence of alcohol and that the defendant's ability to
0 — a vehicle was not impaired by the consumption of
alcoho
(II) If at such time the defendant's BAC was in excess of
0.05 but less than 0.10, such fact gives rise to the
permissible inference that the defendant's ability to operate a
vehicle was impaired by the consumption of alcohol, and
such fact may also be considered with other competent
evidence in determining whether or not the defendant was
under the influence of alcohol.
(IID If at such time the defendant's BAC was 0.10 or more,
such fact gives nse to the permissible inference that the
defendant was under the influence of alcohol.
(b) The limitations of this subsection (6) shall not be
censderaton of any oter compete soe
tion of any te
the question of whether or not the defendant was under the
influence of alcohol or whether or not the defendant's ability
— a vehicle was impaired by the consumption of
(c) In all actions, suits, and judicial proceedings in any court
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of this state concerning alcohol-related or drug-related
traffic offenses, the court shall take judicial notice of
methods of testing a person's alcohol or drug level and of
the design and operation of devices, as certified by the
department of public health and environment, for testing a
‘s blood, breath, saliva, or urine to determine such
person's alcohol or — level. This paragraph (c) shall not
prevent the necessity of establishing during a trial that the
testing devices used were working properly and that such
testing devices were properly operated. Nothing in this
paragraph (c) shall preclude a defendant from offering
evidence concerning the accuracy of testing devices.
(c) If a person refuses to take or to complete, or to cooperate
with the completing of, any test or tests as provided in
section 42-4-1301.1 and such person subsequently stands
trial for DUI or DWAI, the refusal to take or to complete, or
to cooperate with the completing of, any test or tests shall be
admissible into evidence at the trial, and a person may not
claim the privilege against self-incrimination with regard to
admission of refusal to take or to complete, or to cooperate
with the completing of, any test or tests.
(e) Involuntary blood test-admissibility. Evidence acquired
through an involuntary blood test pursuant to section 42-4-
1301.1(3) shall be admissible in any prosecution for DUI,
DUI per se, DWAI, habitual user, or UDD, and in any
prosecution for criminally ee homicide pursuant to
section 18-3-105,C.R.S., vehicular homicide pursuant 12°
sechon 18-3-106( I Mb).CRS.28 — in + Cha —-
pursuant to section 18-3-204. C.R.S.,or vehicular assault
pursuant to section 18-3-205(1)(b), C.R.S.
©} Chemucal test-admissibility. Strict compliance with the
rules and regulations prescribed by the department of public
health and environment shall not be a prerequisite to the
admissibility of test results at trial unless the court finds that
the extent of noncompliance with a board of health rule has
sO impaired the validity and reliability of the testing method
and the test results as to render the evidence inadmissible. In
all other circumstances, failure to strictly comply with such
rules and regulations shall only be considered in the weight
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to be given to the test results and not to the admissibility of,
such test results.
(g) It steal not be a prerequisite to the admissibility of test
results at trial that the prosecution present testimony
concerning the composition of any kit used to obtain blood,
urine, saliva. or breath specimens. A sufficient evidentiary
foundation concerning the compliance of such kits with the
rules and regulations of the department of public health and
environment shall be established by the introduction of a
copy of the manufacturer's or supplier's certificate of
compliance with such rules and regulations if such
certificate specifies the contents, sterility, chemical makeup,
and amounts of chemicals contained in such kit.
(h) In any trial for a violation of this section, the testimony
of a law enforcement officer that he or she witnessed the
taking of a blood specimen by a person who the law
enforcement officer reasonably believed was authorized to
withdraw blood specimens shall be sufficient evidence that
such person was so authorized, and testimony from the
person who obtained the blood specimens concerning such
person's authorization to obtain blood specimens shall not
be a prerequisite to the admissibility of test results
concerning the blood specimens obtained.
(i)(1) Following the lawful contact with a person who has
been driving a vehicle, and when a law enforcement officer
reasonably suspects that a person was driving a vehicle
while under the influence of or while impaired by alcohol,
the law enforcement officer may conduct a preliminary
screening test using a device approved by the executive
director of the department of public health and environment
after first advising the driver that the driver may either
refuse or agree to provide a sample of the driver's breath for
such preliminary test; except that, if the driver is under
twenty-one years of age, the law enforcement officer may,
after providing such advisement to the person, conduct such
preliminary screening test if the officer reasonably suspects
that the person has consumed any alcohol.
(II) The results of this preliminary screening test may be
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used by a law enforcement officer in determining whether
probable cause exists to believe such person was driving a
vehicle in violation of this section and whether to administer
a test pursuant to section 42-4-1301.1(2).
(III) Neither the results of such preliminary screening test
nor the fact that the person refused such test shall be used in
any court action except in a hearing outside of the presence
of a jury, when such hearing is held to determine if a law
enforcement officer had probable cause to believe that the
driver committed a violation of this section. The results of
such preliminary screening test shall be made available to
the driver or the driver's attorney on request.
(7) Penalties. (a)(I) Except as otherwise provided in
subparagraphs (II) and (IV) of this paragraph (a), every
person who is convicted of DUI, DUI per se, or habitual
user shall be punished by:
(A) Imprisonment in the county jail for not less than five
rie nor more than one year, the minimum period of which
sha
be mandatory except as otherwise provided in section 42-4-
1301.3; and
(B) In the court's discretion, a fine of not less than three
hundred dollars nor more than one thousand dollars; and
(C) Not less than forty-eight hours nor more than ninety-six
hours of useful public service, the performance of the
minimum period of which shall be mandatory, and the court
shall have no discretion to suspend the mandatory minimum
period of performance of such service.
(II) Upon conviction of a violation described in sub-
subparagraph (A) or (B) of subparagraph (III) of this
paragraph (a), an offender shall be punished by:
(A) Imprisonment in the county jail for not less than ninety
days nor more than one year, the mi:::mum period of which
shall be mandatory; except that the court may suspend up to
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eighty days of the period of imprisonment if the offender
complies with the provisions of section 42-4-1301.3, and
(B) In the court's discretion, a fine of not less than five
hundred dollars nor more than one thousand five hundred
dollars; and
(C) Not less than sixty hours nor more than one hundred
twenty hours of useful public service, the performance of
the minimum period of which shall be mandatory, and the
court shall have no discretion to suspend the mandatory
minimum period of performance of such service.
(111) Subparagraph (II) of this paragraph (a) shall apply to:
(A) A conviction for DUI, DUI per se, or habitual user,
which violation occurred at any time after the date of a
previous violation, for which there has been a conviction,
for DUI, DUI per se, or habitual user, or for vehicular
homicide pursuant to section 18-3-106(1)(b)(I). C.R.S., or
vehicular assault pursuant to section 18-3-205(1)(b)(1).
C.R.S., or of driving while such person's driver's license was
under restraint pursuant to section 42-2- 138(4)(b): or
(B) A conviction for DUI, DWAI, or DUI per se when the
person's BAC was 0.20 or more at the time of driving or
within two hours after driving.
(IV) Upon a conviction for DUI, DUI per se, or habitual
user, which violation occurred at any time after the date of @
previous violation, for which there has been a conviction,
for DWAI, an offender shall be punished by:
(A) Imprisonment in the county jail for not less than seventy
days nor more than one year, the minimum period of which
shall be mandatory; except that the court may suspend up to
sixty-three days of the period of imprisonment if the
offender complies with the provisions of section 42-4-
1301.3; and
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(B) In the court's discretion, a fine of not less than four
hundred fifty dollars nor more than one thousand five
hundred dollars; and
(C) Not less than fifty-six hours nor more than one hundred
twelve hours of useful public service, the performance of the
minimum period of service which shall be mandatory, and
the court shall have no discretion to suspend the mandatory
minimum period of performance of such service.
(b)(1) Except as otherwise provided in subparagraphs (II) and
(IIl) of this paragraph (b), every person who is convicted of
DWAI shall be punished by:
(A) Imprisonment in the county jail for not less than two
days nor more than one hundred eighty days, the minimum
period of which shall be mandatory except as provided in
section 42-4-1301.3; and
(B) In the court's discretion, a fine of not less than one
hundred dollars nor more than five hundred dollars; and
(C) Not less than twenty-four hours nor more than forty-
eight hours of useful public service, the performance of the
minimum period of which shall be mandatory, and the court
shall have no discretion to suspend the mandatory minimum
period of performance of such service.
(II) Upon conviction of a second or subsequent offense of
DWAI, an offender shall be punished by:
(A) Imprisonment in the county jail for not less than forty-
ive days nor more than one year, the minimum period of
which shall be mandatory; except that the court may suspend
up to forty days of the period of imprisonment if the offender
complies with the provisions of section 42-4-1301.3; and
(B) In the court's discretion, a fine of not less than three
hundred dollars nor more than one thousand dollars; and
(C) Not less than forty-eight hours nor more than ninety-six
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i
hours of useful public service, the performance of the
minimum period of which shall be mandatory, and the court
shall have no discretion to suspend the mandatory minimum
period of performance of such service.
(II) Upon conviction for DWAI, which violation occurred at
any time after the date of a previous violation, for which
there has been a conviction, for DUI, DUI per se, or habitual
user, or vehicular homicide pursuant to section 18- 3-
106(1)(b)(1). C.R.S., or vehicular assault pursuant to section
18-3-205(1)(b)(1). C.R.S., or of driving while such person's
driver's license was under restraint as described in section
42-2-1 38(4)(b), an offender shall be punished by:
(A) Imprisonment in the county jail for not less than six
days nor more than one year, the minimum period of which
shall be mandatory; except that the court may suspend up to
fifty-four days of the period of imprisonment if the offender
complies with the provisions of section 42-4-1301.3; and
(B) In the court's discretion, a fine of not less than four
hundred dollars nor more than one thousand two hundred
dollars; and
(C) Not less than fifty-two hours nor more than one hundred
our hours of useful public service, the performance of the
minimum period of which shall be mandatory, and the court
shall have no discretion to suspend the mandatory minimum
period of performance of such service.
(IV) Deleted by Laws 2002, Ch. 342, § 2, eff. July 1, 2002.
(c)(I) For the purposes of paragraphs (a) and (b) of this
subsection (7), a person shall be deemed to have a previous
conviction for DUI, DUI per se, DWAI, or habitual user, or
vehicular homicide pursuant to section 18-3-106(1)(b)(1).
C.R.S., or vehicular assault pursuant to section 18-3-
2051 Y b) (I), C.R.S.; if such person has been convicted
under the laws of any other state, the United States, or an
territory subject to the jurisdiction of the United States of an
act that, if committed within this state, would constitute the
offense of DUI, DUI per se, DWAI, or habitual user, or
vehicular homicide pursuant to section 18-3-106(1)(b)(I),
C.R.S., or vehicular assault pursuant to section 18-3-
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ON ri VE Aaa ee ee Se ees ee ¥
205(1)(b)(1),-C.R.S.
(II) For sentencing purposes concerning convictions for
second and subsequent offenses, prima facie proof of a
defendant's previous convictions shall be established when
the prosecuting attorney and the defendant stipulate to the
existence of the prior conviction or convictions or the
prosecuting attorney presents to the court a copy of the
driving record of the defendant provided by the department
of revenue of this state, or provided by a similar agency in
another state, that contains a reference to such previous
conviction or convictions or presents an authenticated copy
of the record of the previous conviction or judgment from
any court of record of this state or from a court of any other
state, the United States, or any territory subject to the
jurisdiction of the United States. The court shall not proceed
to immediate ee T when there is not a stipulation to
prior convictions or if the prosecution requests an
opportunity to obtain a driving record or a copy of a court
record. The prosecuting attorney shall not be required to
plead or prove any previous convictions at trial, and
sentencing concerning convictions for second and
subsequent offenses shall be a matter to be determined by
the court at sentencing. :
(III) As used in this part 13, "convicted" includes a plea of
no contest accepted by the court.
(d) In addition to the penalties prescribed in this subsection
(7): :
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.