2017 COA 92
Colo. Ct. App.2017Background
- Sandra Jacobson was convicted by a jury of vehicular homicide, DUI, and related charges after a collision at ~10:30 a.m.; she testified she was sober at the accident but drank half a bottle of 99-proof schnapps around 10:45 a.m.
- Police first contacted her at 10:58 a.m.; obvious signs of intoxication were not noted until ~3:00 p.m., when she failed field sobriety testing and was taken for blood draws.
- Three blood draws at 3:55 p.m., 5:00 p.m., and 6:01 p.m. produced BACs of .164, .143, and .121; the prosecution’s expert extrapolated a BAC of .274 at the time of the accident.
- Defendant did not request an instruction on the statutory affirmative defense that alcohol was consumed after driving but before testing (§ 42-4-1301(2)(a)).
- During deliberations the jury asked whether the DUI verdict could be based on intoxication at the time of collision or any time thereafter; the court answered that it could be either or both but any particular time determination must be unanimous.
- Defendant appealed, raising (1) the trial court’s failure sua sponte to instruct on the statutory post-driving consumption affirmative defense and (2) that Instruction No. 15 and the court’s answer to the jury question reduced the prosecution’s burden and created a variance/constructive amendment; the court of appeals affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred sua sponte by not giving the statutory DUI affirmative defense instruction (post-driving consumption) | Prosecution: proving elements of DUI (intoxicated while operating) necessarily disproved the post-driving-consumption defense | Jacobson: presented credible evidence (her testimony) that she drank after the collision, so the statutory affirmative defense should have been instructed | No error — where defense only traverses/negates an element (i.e., claims not intoxicated at time of offense) a separate affirmative-defense instruction is not required; prosecution’s proof disproved the defense |
| Whether Instruction No. 15 (presumptions from BAC within a reasonable time) and the court’s answer to the jury question reduced the prosecution’s burden | Prosecution: Instruction 8 required proof of intoxication at time of accident; Instruction 15 concerned inferences from BAC evidence and did not lessen the burden | Jacobson: Instruction 15 and the court’s answer could let jury convict based on BAC at a “reasonable time after,” reducing the burden to prove intoxication at the time of the crash | No reversible error — Instruction 8 (unchallenged) required intoxication at the time of the accident; expert extrapolation and facts made it implausible jury could find intoxication only after the crash so as to preserve the defense |
| Whether the instruction phrasing and the court’s answer constituted a constructive amendment or variance | Prosecution: defendant acquiesced to Instruction 15 and the unanimity phrasing during the instruction conference and when the court answered the jury; invited error bars review | Jacobson: did not preserve the claim below and urges plain error review | Error (if any) was invited — defendant affirmatively proposed/acquiesced to Instruction 15 and agreed to the jury-answer language, so invited-error doctrine precludes appellate review |
Key Cases Cited
- People v. Huckleberry, 768 P.2d 1235 (Colo. 1989) (an affirmative-defense instruction is unnecessary where the defense merely negates an element of the offense)
- People v. Pickering, 276 P.3d 553 (Colo. 2011) (defenses that merely traverse elements are disproved by proof of those elements)
- Charnes v. Boom, 766 P.2d 665 (Colo. 1988) (BAC tests obtained within a reasonable time after an alleged offense are admissible and probative)
- People v. Emery, 812 P.2d 665 (Colo. App. 1990) (blood alcohol measured several hours after accident can permit inference of intoxication at time of offense)
- People v. Grassi, 192 P.3d 496 (Colo. App. 2008) (vehicular homicide requires proof defendant operated a vehicle while under the influence)
- People v. Garcia, 113 P.3d 775 (Colo. 2005) (defendant must produce some credible evidence to warrant an affirmative-defense instruction)
- People v. Platt, 170 P.3d 802 (Colo. App. 2007) (scintilla-of-evidence standard for giving affirmative-defense instruction)