2018 COA 67
Colo. Ct. App.2018Background
- Coleman was convicted by a jury of aggravated driving after revocation (ADARP), third-or-subsequent DUI (alcohol-related), and careless driving; trial court imposed concurrent sentences including one year in DOC for ADARP and a four-year probationary component (suspended jail) for the DUI.
- Officer stopped Coleman after observing erratic driving; officer learned Coleman’s Colorado license had been revoked for habitual traffic offender status; DUI investigator arrived and administered field sobriety tests.
- Coleman lost balance on the walk-and-turn, asked to be taken to bond out, and was arrested for DUI, ADARP, careless driving, and warrants; he initially chose a blood test but then indicated he would not take it (treated as refusal).
- Coleman moved to suppress his pre-arrest statement asking to be taken to bond out as a custodial statement made without Miranda warnings; the trial court denied suppression.
- Coleman objected at trial to prosecutor’s closing remarks referencing his silence (pre- and post-arrest); the court overruled one objection and admonished the prosecutor.
- At sentencing defense objected that the court could not impose probation on the DUI count because Coleman received a DOC sentence on ADARP; the court disagreed and sentenced as described; appeal followed.
Issues
| Issue | Coleman’s Argument | Attorney General’s Argument | Held |
|---|---|---|---|
| Whether Coleman’s pre-arrest/post-order statement "take me where I can bond out" should be suppressed as custodial Miranda statement | Statement was made while in custody (ordered to remain in car for ~10 minutes) and without Miranda warnings, so it should be suppressed | Stop was a routine, noncoercive traffic detention; order to remain in car and brief wait for DUI investigator did not create Miranda custody | Not custodial under Miranda; suppression properly denied |
| Whether prosecutor’s closing comments on Coleman’s silence (pre-arrest and post-arrest) were improper and require reversal | Comments amounted to impermissible use of silence punishable by Miranda/Griffin and deprived Coleman of Fifth Amendment protections | Pre-arrest silence was fair rebuttal because defense “opened the door”; post-arrest comment was brief and harmless in context of admitted refusal to test | Pre-arrest comment was permissible rebuttal; post-arrest comment was improper but not plain error and did not require reversal |
| Whether sentencing scheme allows probation for DUI when defendant receives DOC sentence for ADARP (statutory conflict between §42-4-1307(6) and §42-4-1307(15)) | §42-4-1307(6) bars probation for DUI when defendant is sentenced to DOC for any felony; thus probation for DUI was unauthorized where DOC imposed for ADARP | Subsection (15) requiring separate conviction/sentence for DUI and ADARP is specific to ADARP and should allow DUI probation despite DOC sentence | Subsection (6) limits subsection (15); DOC custody bars probation for the DUI count—DUI probation was illegal; sentence vacated and remanded for resentencing |
Key Cases Cited
- Miranda v. Arizona, 384 U.S. 436 (establishes Miranda custodial-interrogation rule)
- Griffin v. California, 380 U.S. 609 (prosecution may not comment on defendant’s post-arrest silence)
- Salinas v. Texas, 570 U.S. 178 (pre-arrest silence and Fifth Amendment limitations on its use discussed)
- People v. Carlson, 119 P.3d 491 (Colo. App. 2004) (discussed lesser-included-offense/merger issues between DUI and ADARP)
- Danielson v. Dennis, 139 P.3d 688 (Colo. 2006) (distinguishing parole from probation and discussing consequences of parole)