STATE OF OREGON, Rеspondent on Review, v. RICKY LEE GUZMAN, Petitioner on Review. STATE OF OREGON, Respondent on Review, v. TIMOTHY JAMES HECKLER, Petitioner on Review.
CC 15CR52393; CA A164152; SC S066328 (Control); CC 16CR33772; CA A163979; SC S066373
Supreme Court of Oregon
December 27, 2019
366 Or 18 (2019) | 455 P3d 485
NELSON, J.
En Banc. On review from the Court of Appeals.* Argued and submitted June 6.
455 P3d 485
Defendants unsuccessfully moved to exclude certain prior convictions, arguing that those convictions were not “statutory counterparts” to
Held: (1) For a foreign conviction to be a statutory counterpart to
In State v. Guzman, S066328, the decision of the Court of Appeals is reversеd. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings. In State v. Heckler, S066373, the decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
En Banc
On review from the Court of Appeals.*
* S066328 on appeal from Deschutes County Circuit Court, Michael Adler, Judge. 294 Or App 552, 432 P3d 387 (2018); S066373 on appeal from Deschutes County Circuit Court, Wells B. Ashby, Judge. Alta Jean Brady, Judge (Amended Judgment). 294 Or App 142, 430 P3d 224 (2018).
Robert M. Wilsey, Assistant Attorney General, Salem, argued the cause and filed the briefs for respondent on review. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
NELSON, J.
In State v. Guzman, S066328, the decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings. In State v. Heckler, S066373, the decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is rеmanded to the circuit court for further proceedings.
These consolidated cases concern two defendants who were convicted of driving under the influence of intoxicants (DUII), a crime that is ordinarily a misdemeanor but that, in each case, was elevated to a felony based on the defendant‘s two prior convictions from other jurisdictions. See
I. BACKGROUND
A. State v. Guzman
Defendant Guzman was charged by indictment with felony DUII and other crimes. With respect to the DUII charge, the indictment alleged that Guzman had two prior convictions for DUII from other jurisdictions, including a 2015 Kansas conviction. Guzman moved to exclude the Kansas conviction, contending that it was not a “statutory counterpart” to
Guzman argued that the statute under which he had been convicted,
The trial court denied Guzman‘s motion and ruled that the Kansas conviction was admissible to prove that defendant had two prior convictions for DUII or a statutory counterpart in another jurisdiction. Guzman was triеd by a jury. At trial, the state introduced records of Guzman‘s foreign convictions, including his Kansas conviction, as exhibits, and the jury found him guilty of felony DUII based on those records.
Guzman appealed, assigning error to the trial court‘s denial of his motion to exclude the Kansas conviction.1 He argued that Mersman, and subsequent Court of Appeals cases, had been overruled by this court‘s decision in Carlton, 361 Or 29, which had been decided after Guzman‘s trial. In light of Carlton, Guzman argued, the term “statutory counterpart” in
The Court of Appeals disagreed, stating without explanation that Carlton did not overrule Mersman and concluding that Guzman‘s Kansas conviction was properly considered a conviction under a statutory counterpart. State v. Guzman, 294 Or App 552, 432 P3d 387 (2018).
Guzman petitioned for review, which we allowed.
B. State v. Heckler
Defendant Heckler was charged by indictment with felony DUII and reckless driving. With respect to the DUII offense, the indictment alleged that he had previously been “convicted of driving while under the influence of intoxicants in violation of the laws of this state or another jurisdiction at least two times in the 10 years prior to the date
Prior to trial, Heckler moved to exclude both prior convictions. He noted that both convictions had been for violations of
Heckler entered a conditional no contest plea to felony DUII, reserving his right to challenge the trial court‘s pretrial ruling on appeal. See
Heckler petitioned for review, which we allowed.
II. “STATUTORY COUNTERPART”
This case turns on the meaning of the term “statutory counterpart” in
The state, by contrast, focuses on a single piece of context. The state argues that, when
We approach this case using our ordinary interpretive methodology. See State v. Gaines, 346 Or 160, 206 P3d 1042 (2009); Burke v. DLCD, 352 Or 428, 432-33, 290 P3d 790 (2012) (applying that methodology to a law enacted by the people). Although it is neither party‘s focus, we begin our analysis by examining the text of
A. Text
“Driving under the influence of intoxicants under
ORS 813.010 shall be a Class C felony if the defendant has been convicted of driving under the influence of intoxicants inviolation of ORS 813.010 , or its statutory counterpart in another jurisdiction, at least two times in the 10 years prior to the date of the current offense.”
The first important term in that text is “convicted of.” That phrase immediately and substantially limits the inquiry created by
The next key phrase is “driving under the influence of intoxicants,” which specifies the particular conduct of which the defendant must have been convicted. Relevant context for that phrase comes from
“A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person:
“(a) Has 0.08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person made under
ORS 813.100 ,813.140 or813.150 ;“(b) Is under the influence of intoxicating liquor, cannabis, a controlled substance or an inhalant; or
“(c) Is under the influence of any combination of intoxicating liquor, cannabis, a controlled substance and an inhalant.”
In light of that context, “driving under the influence of intoxicants” could be read to refer to the precise elements of
That brings us to the term “statutory counterpart.” Only one of the senses of “counterpart” set out in Webster‘s Third New Int‘l Dictionary 520 (unabridged ed 2002) seems relevant here:
“3 a : one remarkably similar to another : a person or thing so like another that it seems a duplicate *** b : equivalent : something or someone having the same use, role, or characteristics often in a different sphere or period[.]”
The listed subsenses have the same core of meaning—a high degree of similarity. The range from “remarkabl[e]” similarity to “so like another that it seems a duplicate” to “same *** characteristics” is not great. Any ambiguity in the phrase “statutory counterpart” does not arise from uncertainty about how similar to
Read in context, however, that ambiguity is easily resolved. The phrase “statutory counterpart” refers to a law under which the dеfendant was “convicted of driving under the influence of intoxicants.”
B. State v. Carlton
We turn to Carlton, a decision where we discussed other uses of the term “statutory counterpart,” along with various similar terms throughout our laws. Defendants argue that this court construed “statutory counterpart” in Carlton to require close element matching and that we should adhere to that holding here. They argue that, even if Carlton is not read that expansively, it at least established a presumption that “statutory counterpart” should be read narrowly, in the absence of context indicating otherwise. The state argues that our discussion of “statutory counterpart” in Carlton was dicta and that, in any event, Carlton does not preclude the argument that it makes in this case.2
In Carlton, we construed
Beginning with the term “comparable offenses,” we consulted the dictionary definition of “comparable,” concluding that
“the word ‘comparable’ has two primary senses. Using the first sense, that word could refer to a degree of similarity that makes comparison appropriate based on the commonality of salient features of the things being compared (meaning that they are alike in substance or essentials). Alternatively, using the second sense, the word could describe a very high degree of similarity (meaning virtually identical).”
Id. at 37. We reasoned that “[t]he bare text of
We observed that many other statutes gave effect to foreign convictions using somewhat different terms and noted that “each of the terms thаt are used in the cited examples—‘statutory counterpart,’ ‘would constitute,’ and ‘the elements’ would ‘constitute‘—are consistent in meaning with the more restrictive primary meaning of ‘comparable.‘” Id. at 41. We also found it “notable that the assault statutes
We reasoned that
“[t]hose examples reveal a consistent pattern. Where the purpose of considering a prior conviction is to identify and then ‘count’ specific criminal history, generally speaking, the legislature (both directly and by approving the Sentencing Guidelines) has required that the historical offense be the same as or nearly the same as a qualifying Oregon offense.”
Id. at 41-42. We also observed that there were good reasons why the legislature would want to adopt a relatively narrow rule:
“It is the prerogative of the Oregon legislature to determine what factual elements will give rise to criminal responsibility under Oregon law. When another state adopts a different legislative policy, no matter how defensible or similar to what the Oregon legislature might (or might not) have adopted if it had specifically cоnsidered the matter—that state has made its own public policy judgment. Unless a less restrictive meaning is evident from the text and context of an Oregon conviction-counting statute, there is no reason to presume that the Oregon legislature intended to adopt another state‘s policy by reference, without the attendant deliberative safeguards that Oregon‘s own legislative processes prescribe.”
Id. at 42. We therefore concluded that the legislature meant “comparable offenses” to incorporate the more restrictive meaning of “comparable” so as to “refer[] to offenses with elements that are the same as or nearly the same as the elements of an Oregon felony sex crime, not to offenses that merely share a core similarity with such an offense.” Id. at 43.
The state takes the position that anything we said about the term “statutory counterpart” in Carlton was dicta and is therefore not controlling here. See Halperin v. Pitts, 352 Or 482, 494, 287 P3d 1069 (2012) (noting that although a prior construction in dictum may be persuasive, “we are not required to follow it as precedent” (emphasis added)). The state argues that anything that we said about “statutory
As we have explained, the term dictum “refers to a statement that is not necessary to the court‘s decision.” Engweiler v. Persson/Dept. of Corrections, 354 Or 549, 558, 316 P3d 264 (2013). In Carlton, however, our analysis of terms related to “comparable offenses,” including “statutory counterpart,” was how this court resolved a textual ambiguity in
Thus, Carlton‘s conclusion—that when Oregon statutes give legal effect to foreign convictions, those statutes generally require a form of close element matching, “[u]nless a less restrictive meaning is evident from the text and context,” 361 Or at 42—is relevant to interpreting statutes that use the term “statutory counterpart” for that purpose, including
The parties disagree about when and whether we should treat decisions of the Court of Appeals as context that the legislature—or the people acting in their legislative capacity—would have relied on in enacting new laws. Defendants argue that we have rarely, if ever, looked to Court of Appeals decisions as context in the absence of specific legislаtive history indicating that the legislature was aware of a particular decision. They contend that reliance on Court of Appeals decisions should be limited to such circumstances. The state, by contrast, argues that there is no meaningful difference between decisions of this court and those of the Court of Appeals.
We have often recognized that “[c]ourt decisions that existed at the time that the legislature enacted a statute—and that, as a result, it could have been aware of—may be consulted in determining what the legislature intended in enacting the law as part of the context for the legislature‘s decision.” OR-OSHA v. CBI Services, Inc., 356 Or 577, 593, 341 P3d 701 (2014). And this court has adverted to the principle that “[w]hen a statute has been construed by the court of last resort of the state and is later reenacted, it is deemed that the Legislature has adopted the court‘s construction unless the contrary purpose is clearly shown by the language of the act.” Overland et al. v. Jackson et al., 128 Or 455, 463-64, 275 P 21 (1929). This court also has indicated that, although “the Court of Appeals is not the court of last resort,” the same principle applies when legislative history indicates that thе legislature was aware of the Court of Appeals’ interpretation. State v. Ford, 310 Or 623, 637 n 21, 801 P2d 754 (1990).
When interpreting statutes with text borrowed from foreign jurisdictions, our decisions similarly accord a special status to prior interpretations by the highest court of the relevant jurisdiction:
“If the Oregon legislature adopts a statute or rule from another jurisdiction‘s legislation, we assume that the Oregon legislature also intended to adopt the construction of the legislation that the highest court of the other jurisdiction had rendered before adoption of the legislation in Oregon.”
But, although we have accorded greater significance to decisions of the highest court of another jurisdiction, we have never altogether discounted decisions of lower appellate courts of that jurisdiction, even in the absence of legislative history specifically indicating that our legislature was aware of those decisions. For example, in Lindell v. Kalugin, 353 Or 338, 355, 297 P3d 1266 (2013), interpreting an Oregon law based on a federal rule of civil procedure that had not been construed by the United States Supreme Court, we treated a consistent pattern of lower “federal court decisions as at least highly persuasive as to the intentions of the Oregon legislature in borrowing from the federal rules.” And in State v. Edmonds, 364 Or 410, 422-23, 435 P3d 752 (2019), we interpreted an Oregon rule of evidence that had been derived from federal law, and we looked to a Second Circuit decision as context. Although we emphasized that that decision had proved influential on other federal appellate courts, and that no federal appellate court had reached a different conclusion on the point in question, we did not discount the decision because it did not issue from the Supremе Court or because the legislature had not specifically indicated its awareness of the decision. Id. at 423-24.
Although defendants may be correct that we typically have not looked to Court of Appeals decisions as context in the absence of an indication that the legislature was aware of them, we see no reason to elevate that practice to a firm rule. Given our treatment of intermediate appellate court decisions from other jurisdictions, it would be anomalous to refuse to consider Court of Appeals decisions as context in
It also makes little sense, in this context, not to recognize differences between Court of Appeals decisions. On one end of the spectrum, a longstanding Court of Appeals decision interpreting a statute that this court never has considered is more likely to be known to the legislature. On the other end of the spectrum, it makes less sense to assume—absent a specific indication—that the legislature is aware of every recent Court of Appeals decision and that it immediately treats all such decisions as fully determinative of the meaning of an interpreted statute. That is particularly the case if the decision in question is in tension with other decisions, leaves important questions unanswered, or has had its validity called into question. Similar considerations have informed our reliance on intermediate appellate court decisions from other jurisdictions.3
D. State v. Mersman and State v. Rawleigh as Context
The state argues that in 2010, when
The first difficulty with the state‘s argument is that, in 2007, the legislature amended
“(B) A driving under the influence of intoxicants offense in another jurisdiction that involved the impaired driving or operation of a vehicle, an aircraft or a boat due to the use of intoxicating liquor, cannabis, a controllеd substance, an inhalant or any combination thereof.
“(C) A driving offense in another jurisdiction that involved operating a vehicle, an aircraft or a boat while having a blood alcohol content above that jurisdiction‘s permissible blood alcohol content.”
Or Laws 2007, ch 879, § 3.4
Neither Mersman nor Rawleigh were decided under the amended statutes. The first Court of Appeals decision to discuss the significance of those changes was Donovan, 243 Or App 187, in 2011. In Donovan, the Court of Appeals considered the effect of the amendment on
“[t]hose disqualifying offenses are phrased in the disjunctive—that is, they are presented as alternative means of rendering
a person ineligible for diversion. Thus, we presume the legislature intended subparagraphs (B) and (C) [the new additions] to have independent meaning from subparagraph (A) [where the term “statutory counterpart” appears], rather than to be duplicative or illustrative of what a ‘statutory counterpart’ might be. Any other interpretation would mean the amendments were merely redundant of what was already in the statute.
“At first blush, then, the amendments to
ORS 813.215 (1)(a) seem to narrow the meaning of ‘statutory counterpart’ by excluding from its ambit offenses that involve ‘the impaired driving of a vehicle’ or a violation of the BAC limit—offenses that we might otherwise conclude fall under subparagraph (A), the statutory counterpart provision, as we have previously interpreted it.”
243 Or App at 196 (citations omitted). The Court of Appeals then observed that that was not the only permissible reading of the additions and turned to the legislative history of those amendments to confirm that the legislature had not intended to narrow the meaning of “statutory counterpart.” Id. at 196-97.
Between the 2007 amendments and Donovan, a reasonable reader of
The second problem with the state‘s argument is that prior constructions of statutory terms are only one source of context that we consider when interpreting a statute. Regardless of the significance accorded to those decisions of the Court of Appeals, other context in this case outweighs any conclusion that might be drawn from them. See State v. Shaw, 338 Or 586, 604, 113 P3d 898 (2005) (declining to
That presumption is particularly strong here. The term “statutory counterpart“—and the specific phrasing used in
For those reasons, we reject the state‘s argument that Mersman and Rawleigh control the meaning of “statutory counterpart” in
E. Apprendi and Constitutional Avoidance
For the most part, defendants do not offer an argument that foreign statutory counterparts must have elements identical to or narrower than
However, the close element matching approach adopted by Carlton falls within that exception. The only facts that must be found, to elevate a misdemeanor DUII to a felony under
As defendants observe, some federal sentencing statutes apply a different, and stricter, legal test for which prior offenses trigger additional sentencing consequences. See Descamps v. United States, 570 US 254, 257, 133 S Ct 2276, 186 L Ed 2d 438 (2013) (explaining that a prior conviction triggers certain sentencing enhancements “only if the statute‘s elements are the same as, or narrower than, those of the generic offense“). But Apprendi, which is a rule about when factual questions must be submitted to a jury, does not require a particular legal test for which convictions trigger sentencing consequences. See James v. United States, 550 US 192, 214 & n 8, 127 S Ct 1586, 167 L Ed 2d 532 (2007), overruled on other grounds by Johnson v. United States, 576 US 591, 135 S Ct 2551, 192 L Ed 2d 569 (2015) (rejecting an Apprendi challenge to a judicial inquiry into whether an offense that was the subject of a prior conviction “involves conduct that presents a serious potential risk of physical injury to another” because that test required “statutory interpretation, not judicial factfinding“). Because close element matching, as articulated in Carlton, looks only to the elements of a defendant‘s prior convictions and does not involve an additional factual inquiry, it falls into the prior conviction exception. Apprendi does not offer a reason to prefer a different approach.
Before we apply the close element matching approach to these cases, we discuss a question left unanswered in Carlton, but which is important here. As we explained in Carlton, close element matching requires a foreign offense to have “elements that are the same as or nearly the same as the elements of” the Oregon crime to which it is compared. Carlton, 361 Or at 43 (emphasis added). In Carlton, we did not have occasion to discuss in depth how to determine when minor differences in the elements would not be disqualifying. Yet Carlton introduced two important factors to consider when evaluating a foreign offense with elements broader than those of the Oregon offense to which it is being compared, and those two factors are enough to resolve these cases.7
In Carlton, we considered whether
Thus, the first factor to consider is how the additional breadth of the foreign statute compares with the overall scope of the relevant Oregon statute, in this case
The second factor relates not to the breadth of the additional conduct proscribed by the foreign statute but to its nature. In Carlton, when comparing
“[T]he California offense has only two conduct elements and may be proved by any touching of a child, even outwardly innocent touching, if the touch is sexually motivated. That means that the California offense could be committed simply by placing an arm around a child‘s shoulder, patting the top of a child‘s head, or helping a child put on a pair of shoes, if the physical contact—though experienced by the child as innocent—is made with a sеxual purpose.”
Carlton, 361 Or at 44 (internal citation removed). As that passage indicates, when the foreign offense reaches conduct that is less culpable than that involved in the Oregon offense, then that is an indication that the foreign offense is not a statutory counterpart. Culpability, for this purpose, is determined by examining how the conduct is treated under Oregon law. A difference in statutory elements that is confined to conduct that, although not proscribed in the same statute, is nevertheless proscribed and treated with the same or greater level of seriousness in Oregon is not likely to be a difference that will preclude the foreign offense from being a close element match. In such cases, the concern that giving legal effect to a foreign offense will “adopt another state‘s policy by reference, without the attendant deliberative safeguards that Oregon‘s own legislative processes prescribe,” Carlton, 361 Or at 42, is lessened.
III. APPLICATION
A. Guzman and Kan Stat Ann § 8-1567(a)
With those principles in mind, we turn to the application of the close element matching standard to the two foreign statutes at issue here, beginning with defendant
In Carlton, we began our close element matching analysis by determining what the elements of the relevant offenses were. 361 Or at 44. We do the same here. We then address whether Guzman is correct that
“A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person:
“(a) Has 0.08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person made under
ORS 813.100 ,813.140 or813.150 ;“(b) Is under the influence of intoxicating liquor, cannabis, a controlled substance or an inhalant; or
“(c) Is under the influence of any combination of intoxicating liquor, cannabis, a controlled substance and an inhalant.”
We held in State v. King, 316 Or 437, 852 P2d 190 (1993), overruled in part on other grounds by Farmers Ins. Co. v. Mowry, 350 Or 686, 261 P3d 1 (2011), that the three
In examining foreign offenses, it is particularly important to be clear on the elements of the offense. As we have made clear in interpreting our own statutes, the text of a criminal statute, even if contained in a single section or paragraph, may set forth alternative elements, thereby creating multiple “separate offenses.” King, 316 Or at 441-42. Conversely, as in King itself, a list joined by the word “or” may simply set forth different methods of proving a single element. Id. at 444; see also State v. Pipkin, 354 Or 513, 523-24, 316 P3d 255 (2013) (so holding regarding the trespass element of Oregon‘s burglary statute).
It bears emphasis that what we are concerned with in this context are the statutory elements of the offense, not the specifics of a defendant‘s misconduct. Facts that are not elements, even if charged and admitted, are irrelevant to the “statutory counterpart” analysis. See, e.g., Mathis v. United States, ___ US ___, ___, 136 S Ct 2243, 2251-53, 195 L Ed 2d 604 (2016) (so holding in the context of federal conviction-counting statutes and observing practical and constitutional difficulties that might arise were nonelement facts to be taken into consideration). Conversely, however, where a law sets forth alternative elements, effectively defining multiple offenses, even if those offenses are located within the same subsection or referred to by the same label, the record of conviction may provide a basis for “determin[ing] what crime, with what elements, a defendant was convicted of.” Mathis, ___ US at ___, 136 S Ct at 2249.
“(a) Driving under the influence is operating or attempting to operate any vehicle within this state while:
“(1) The alcohol concentration in the person‘s blood or breath as shown by any competent evidence, including other competent evidence, as defined in
K.S.A. 8-1013(f)(1) , and amendments thereto, is 0.08 or more;“(2) the alcohol concentration in the person‘s blood or breath, as measured within three hours of the time of operating or attempting to operate a vehicle, is 0.08 or more;
“(3) under the influence of alcohol to a degree that renders the person incapable of safely driving a vehicle;
“(4) under the influence of any drug or combination of drugs to a degree that renders the person incapable of safely driving a vehicle; or
“(5) under the influence of a combination of alcohol and any drug or drugs to a degree that renders the person incapable of safely driving a vehicle.”
The Kansas statute does not set forth alternative elements defining multiple crimes. The Kansas Supreme Court has held that
“[t]he crime of driving under the influence requires two primary elements—that is, driving and simultaneously being under the influence. The driving element can be established through proof that the defendant either ‘operated’ or ‘attempted to operate’ the vehicle, while the ‘under the influence’ requirement can be established through proof of any of the factual circumstances described in subsections (a)(1) through (a)(5).”
State v. Ahrens, 296 Kan 151, 160, 290 P3d 629, 635 (2012). As a result, the terms “operating or attempting to operate” merely “‘describe the factual circumstances in which a material element‘—i.e., driving—‘may be proven.‘” Id. at 160, 290 P3d at 635 (quoting State v. Brown, 295 Kan 181, 196-97, 284 P3d 977, 990 (2012)). The same appears to be
In this case, our analysis begins and ends with the first difference that Guzman points to, that
The Kansas Supreme Court has interpreted “operating” to require movement of the vehicle. State v. Kendall, 274 Kan 1003, 1008, 58 P3d 660, 669 (2002). We see no difference, therefore, between the Kаnsas Supreme Court‘s interpretation of “operating” and the Oregon Court of Appeals’ interpretation of “drives.” Guzman‘s argument, however, centers on the term “attempting to operate.” And we agree with Guzman that, by extending to attempted operation,
“[T]he State can point to the following facts: the vehicle‘s engine was running, i.e., the vehicle was ready to move upon the engagement of the transmission; [the defendant] had previously moved into the driver‘s seat, i.e., she had intentionally placed herself in a position to manipulate the
controls necessary to move the vehicle and may have been the one to start the engine; and, upon being awakened, [the defendant] reached down and fumbled with the gear shift lever, i.e., she made an overt act toward engaging the transmission, which was arguably the last act needed to legally ‘drive’ the vehicle.”
Id. at 718-19, 374 P3d at 679. And, in a somewhat broader application of “attempting to operate,” the Kansas Court of Appeals upheld a conviction where the defendant tried, unsuccessfully, to start a vehicle with the key in the ignition, while intending to move the car. State v. Adame, 45 Kan App 2d 1124, 1129, 257 P3d 1266, 1270 (2011).
We therefore consider whether that additional breadth disqualifies
The first factor that we consider is the degree to which the scope of
We turn to the second factor, whether the additional conduct included in
This is a close case, but considering the two factors together, we conclude that the inclusion of “attempting to operate” precludes
B. Heckler and Colo Rev Stat § 42-4-1301(1)(b)
We now turn to defendant Heckler‘s convictions for violation of
“(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 a motor vehicle or vehicle.
“(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 a motor vehicle or vehicle.
“* * * * *
“(f) ‘Driving under the influence’ means driving a motor vehicle or vehicle when a person has consumed alcohol or
one or more drugs, or a combination of alcohol and one or more drugs, that 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 motor vehicle or vehicle when a person has consumed alcohol or one or more drugs, or a combination of both alcohol and one or more drugs, that 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.”
Driving while ability impaired (DWAI), defined by
Heckler‘s argument that DWAI is not a statutory counterpart to
Under Colorado law, the impairment element is satisfied when a person is
“affect[ed] *** 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.”
The state argues that there is little difference between DWAI and DUII under
Guided by the two factors discussed above, we conclude that the degree to which Colorado‘s DWAI offense includes conduct not captured by
While we do not hold that every foreign offense setting a lower bar for intoxication than
IV. CONCLUSION
We hold that, in determining which foreign offenses qualify as statutory counterparts to
In State v. Guzman, S066328, the decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit