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In re Viburg v. People.

2021 CO 81. No. 21SA153.  Driving While Intoxicated—Repeat Offenders—Double Jeopardy.

December 20, 2021


In this case, the Supreme Court answered a question left open in Linnebur v. People, 2020 CO 79M, ¶ 2, 476 P.3d 734, 735 (Colo. 2020). In Linnebur, the Court held that prior convictions are an element of the crime of felony driving under the influence (DUI), meaning they “must be proved to the jury beyond a reasonable doubt.” But the Court declined to address whether double jeopardy bars retrial of a felony DUI charge where a defendant is convicted of misdemeanor DUI.

Here, the Court held that double jeopardy does not bar retrial because defendant was not previously acquitted of felony DUI. Accordingly, the Court discharged the rule to show cause and remanded the case to the trial court for further proceedings.

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