2020 COA 8
Colo. Ct. App.2020Background:
- Kevin Viburg was charged with felony DUI (fourth-or-subsequent) based on an allegation of three or more prior DUI/DWAI convictions.
- Before trial, Viburg moved to require the prosecution to plead and prove the prior convictions to a jury beyond a reasonable doubt; the trial court denied the motion.
- A jury convicted Viburg of DUI and careless driving (misdemeanor-level elements were submitted to the jury).
- At a post-trial hearing, the judge found the prior convictions by a preponderance of the evidence and elevated the conviction to a class 4 felony and sentenced Viburg accordingly.
- The Court of Appeals reversed, holding that the prior convictions that convert misdemeanor DUI into felony DUI are elements of the offense and must be proved to a jury beyond a reasonable doubt.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether prior DUI/DWAI convictions that elevate DUI to a felony are elements that must be submitted to a jury and proved beyond a reasonable doubt | Priors are sentencing factors/enhancements to be proved to the judge by a preponderance | Priors are substantive elements required to be alleged and proved to a jury beyond a reasonable doubt | Priors are elements of felony DUI and must be alleged and proved to a jury beyond a reasonable doubt; conviction reversed |
| If statute is ambiguous, whether the constitutional-doubt canon requires construing priors as elements | Statute should be read to allow judge-found priors (avoiding jury requirement) | Ambiguity should be resolved to avoid grave constitutional questions — require jury finding | Court applied constitutional-doubt canon: ambiguity resolved in favor of construing priors as elements to avoid constitutional issues |
Key Cases Cited
- Jones v. United States, 526 U.S. 227 (elements must be charged and proved to a jury)
- Apprendi v. New Jersey, 530 U.S. 466 (facts that increase penalty beyond statutory maximum must be submitted to a jury)
- United States v. Rodriguez-Gonzales, 358 F.3d 1156 (9th Cir. 2004) (prior conviction that converts misdemeanor to felony is a substantive element)
- People v. Schreiber, 226 P.3d 1221 (Colo. App. 2009) (discusses elevation concerns and the transformative effect of prior-conviction-based felonies)
- Johnson v. State, 994 So. 2d 960 (Fla. 2008) (prior DUI offenses must be proved to a jury because they are elements of felony DUI)
- Echhardt v. People, 247 P.2d 673 (Colo. 1952) (distinguishes felonies as crimes meriting penitentiary confinement and notes qualitative differences between felonies and misdemeanors)