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People v. Carter.

2021 COA 29. No. 17CA2331.  Criminal Law—Driving Under the Influence—Felony—Prior Convictions—Burden of Proof—Constructive Amendment—Waiver—Structural Error.

March 11, 2021


The prosecution alleged that defendant drove drunk and had a series of hit and run accidents over several hours. When police contacted defendant later that day, he was at a friend’s house with his car parked outside. Defendant declined both a blood and breath test and didn’t provide insurance information for the vehicle. He was charged with felony driving under the influence (DUI), leaving the scene of an accident, and failure to present proof of insurance. A jury found him guilty of the first two offenses and of operating a motor vehicle without insurance.

On appeal, defendant argued that the requirement of three prior convictions is an element of felony DUI and the district court violated his constitutional right to have a jury decide that element beyond a reasonable doubt. DUI is ordinarily a misdemeanor, but it becomes felony DUI if it occurs after three or more prior convictions for DUI, DUI per se, or driving while ability impaired. Consequently, the prosecution must prove the three prior convictions as an element of felony DUI. Here, defendant filed a motion requesting that the prosecution be required to prove the three prior convictions to a jury beyond a reasonable doubt. The district court ruled that the requirement of three prior convictions for felony DUI is a sentence enhancer, not an element of the offense, and therefore allowed the prosecution to prove the prior convictions to the court by a preponderance of the evidence. Accordingly, the district court erred.

Defendant also contended that the district court erred by constructively amending the failure to present proof of insurance charge in the complaint and information by instructing the jury on the elements of the different and uncharged offense of operating a motor vehicle without insurance. Defendant waived this argument by failing to object to the specific jury instructions at trial. But alternatively, even if he didn’t waive the claim of error, it is subject to plain error review because a constructive amendment isn’t a structural error. Here, while there was a constructive amendment, the error was not plain, so the district court did not err. However, defendant was found guilty of operating a motor vehicle without insurance, but the mittimus shows a conviction for failure to present proof of insurance.

The felony DUI conviction was reversed and the operating a motor vehicle without insurance conviction was affirmed. The case was remanded to correct the mittimus and for further proceedings consistent with this opinion.

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

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