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People v. Burdette.

2024 COA 38. No. 21CA2075. DUI—Limitation for Collateral Attack Upon Trial Court Judgment—Sixth Amendment—Right to Counsel—Subject Matter Jurisdiction—Crim. P. 24—Express Consent Statute—Admission of Blood Test Results—Speedy Trial Right.

April 18, 2024

Burdette drove his truck onto his neighbor’s property, nearly hitting the neighbor’s granddaughter. Earlier that day, the neighbor had seen Burdette getting alcohol and stumbling around. The neighbor called police, and while on the call, the neighbor saw Burdette drive up the street and nearly strike another vehicle. When law enforcement arrived, Burdette was backing his truck into his driveway. Officers observed signs of intoxication, but Burdette refused sobriety roadsides maneuvers, and officers arrested him for DUI. Burdette then opted to take a blood test, which showed that his blood alcohol content (BAC) was 0.241. Burdette was charged with felony DUI under CRS § 42-4- 1301(1)(a) based on his three prior driving while ability impaired (DWAI) convictions, one in 1995 and two in 1990. Burdette moved pretrial to suppress his 1990 DWAI convictions, arguing that those convictions were invalid because he was denied his right to counsel, so the convicting court lacked subject matter jurisdiction. The district court concluded that Burdette’s collateral attacks were untimely under CRS § 16-5-402(1) and denied the motion. From December 2020 through May 2021, the district court declared three mistrials in Burdette’s case because COVID-19 public health restrictions prevented the court from safely assembling a fair jury pool. Burdette moved to dismiss based on a violation of his speedy trial right. The district court denied the motion. Burdette was found guilty of felony DUI.

On appeal, Burdette contended that the district court erred by determining that his collateral attacks against his 1990 convictions were time barred, based on Johnson v. Zerbst, 304 U.S. 458, 467 (1938), which described the Sixth Amendment’s right to counsel is an “essential jurisdictional prerequisite.” However, based on the Supreme Court’s more recent decisions narrowing the definition of “jurisdictional,” the denial of a defendant’s Sixth Amendment right to counsel does not deprive courts of subject matter jurisdiction over the charged crimes. And CRS § 42-4-1702(1) requires commencement of a collateral attack on a conviction for certain alcohol- and drug-related traffic offenses within six months after the judgment date. Therefore, Burdette’s collateral attacks against his 1990 DWAI convictions were not exempted from the § 42-4-1702(1) time bar, and the jury properly considered Burdette’s prior convictions when deciding whether he committed felony DUI.

Burdette also argued that a 2020 addition to Crim. P. 24, which provided guidance on when a district court may declare a mistrial due to a public health crisis, is unconstitutional because it violates the separation of powers doctrine. But at the time of the mistrials, no clear statutory command, settled legal principle, or Colorado case law suggested that Crim. P. 24(c)(4) violated the separation of powers doctrine, so the district court did not commit an obvious error by failing to declare Crim. P. 24(c)(4) unconstitutional on its own motion.

Burdette further contended that the district court violated his statutory speedy trial right when it granted multiple mistrials due to the COVID-19 pandemic. Here, the district court declared the first mistrial without objection from Burdette, because the pandemic prevented a jury from convening safely; and the district court made appropriate findings that the second and third mistrials were caused solely by the COVID-19 pandemic, tolling the deadline for the two additional mistrial periods, neither of which deadline exceeded three months. Thereafter, Burdette’s trial commenced within the 76 days remaining in the speedy trial period, so his speedy trial right was not violated.

Burdette also asserted that the district court violated Colorado’s express consent statute by not suppressing his blood test results because the blood test was not taken within two hours of driving. However, the express consent statute does not mandate the test result’s suppression in a later criminal trial for DUI if law enforcement does not obtain the sample within two hours of driving. Accordingly, the district court did not err.

Burdette additionally contended that there was insufficient evidence to prove the validity of his three prior DWAI convictions or that he was the defendant in the prior cases. However, the testimonial and record evidence sufficiently established these facts.

Lastly, Burdette argued that the prosecutor committed misconduct during rebuttal closing argument by giving his personal opinion that the certified court records were accurate. Here, though the prosecutor’s statement arguably could be interpreted as his personal opinion, given the context of the argument and the evidence before the jury, the prosecutor’s comments were not so flagrant that they cast serious doubt on the verdict’s reliability.

The judgment was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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