v. Tun, 2021 COA 34

Background

In October 2015 Tun was stopped for lack of license plate/temporary tag; he lacked a license and proof of insurance, smelled of alcohol, performed poorly on field sobriety tests, and a blood test about 90 minutes later showed a BAC of .26.
Tun had an extensive driving history: multiple prior restraints and a 2013 revocation as a habitual traffic offender; the People alleged at least three prior alcohol/drug-related driving convictions, elevating DUI and DUI-per-se to felonies under § 42-4-1301.
At trial the court denied Tun’s request to have the jury determine the prior convictions; the jury found him guilty of the underlying DUI offenses and the court later found the priors by a preponderance, elevating the convictions to felonies.
The jury convicted Tun of other counts: failure to display proof of insurance, driving an unregistered vehicle, driving after revocation prohibited (DARP), and driving under restraint (DUR); the People conceded a constructive amendment occurred as to the insurance count.
On remand after the Colorado Supreme Court’s Linnebur decision, the Court of Appeals: (1) held the priors are elements that must be proven to a jury beyond a reasonable doubt and reversed the felony DUI and DUI-per-se convictions; (2) reversed the insurance conviction because of a constructive amendment and ordered a retrial on that count; (3) rejected Tun’s equal protection claim; and (4) affirmed the DUR and DARP convictions and declined to merge them.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether prior qualifying convictions are elements that must be proved to a jury beyond a reasonable doubt for felony DUI/DUI-per-se	Priors are sentencing factors or enhancements that may be proved to the court by a preponderance	Priors are an element of the felony offense and must be submitted to the jury and proved beyond a reasonable doubt	Priors are elements under § 42-4-1301; the court reversed felony convictions because the jury was not asked to find priors beyond a reasonable doubt (per Linnebur)
Whether the statutory scheme violates equal protection by allowing prosecutor discretion to treat similar prior-conviction counts differently	Statutes apply differently and carve out exceptions; no equal protection violation	Prosecutor can elect felony or misdemeanor treatment for similar conduct, creating arbitrary disparities	Rejected defendant’s equal protection claim; the statutes differ in required number of priors, “separate and distinct criminal episodes” requirement, and qualifying offenses, so they are not identical
Whether the variance between the charging information (failure to present proof on request) and the jury instruction (operate without insurance) was a constructive amendment requiring reversal	Any variance did not prejudice defendant or was harmless	The instruction changed an essential element, denying notice and causing prejudice	People conceded constructive amendment; court found plain (obvious and substantial) error, reversed the insurance conviction, and allowed retrial on the correct charge
Whether the evidence supported convictions for DUR and DARP (knowledge element)	Driving record, repeated revocations, and mailed notice created a permissible inference of knowledge; evidence sufficient	Lack of direct proof that Tun knew his license was revoked or restrained	Evidence (driving record, mailed revocation letter, pattern of suspensions) was sufficient to support the jury’s finding of knowledge for DUR and DARP
Whether DUR must merge into DARP (double jeopardy/lesser-included)	DUR is not a lesser included offense of DARP per some precedent; convictions need not merge	DUR is a lesser included offense of DARP and convictions should merge	Court agreed DUR is a lesser included offense of DARP but declined to order merger because the law was unsettled at sentencing and no plain error occurred

Key Cases Cited

Griego v. People, 19 P.3d 1 (Colo. 2001) (defendant must be aware revocation existed to satisfy "knowingly" element for DARP)
Ellison v. People, 14 P.3d 1034 (Colo. App. 2000) (knowledge for DUR may be inferred from circumstances; reasonable-person and subjective awareness components)
Carrasco v. People, 85 P.3d 580 (Colo. App. 2003) (standard for reviewing sufficiency of evidence)
Martinez v. People, 179 P.3d 23 (Colo. App. 2007) (distinguishing proof of "no insurance" from failure to present proof when requested)
Villa-Villa v. People, 983 P.2d 181 (Colo. App. 1999) (official mailing records can support permissible inference of notice)
Rodriguez v. People, 914 P.2d 230 (Colo. 1996) (defining constructive amendment principles)
Espinoza v. People, 195 P.3d 1122 (Colo. App. 2008) (using driving record and habitual offender status to support knowledge for DARP)