People v. Tanner.

2023 COA 97. No. 22CA2178. Careless Driving—Unit of Prosecution.

October 19, 2023

Tanner was the driver in a single-car crash that killed his two passengers. The district court convicted him of two counts of careless driving. Before sentencing, Tanner moved to merge the convictions, arguing that the unit of prosecution for careless driving is each driving incident, not each victim. The prosecution agreed, but the district court concluded that the unit of prosecution for careless driving is the harm caused to each victim, so merger was not required.

On appeal, Tanner argued that the court erred by not merging his two careless driving convictions because the unit of prosecution for that offense is each driving incident, not each person injured or killed as a result thereof. CRS § 42-4-1402(1) establishes the offense of careless driving. It is a class 2 misdemeanor traffic offense under § 42-4-1402(2)(a), but it is a class 1 misdemeanor traffic offense under § 42-4-1402(2)(b) and (c) if the driver’s actions proximately cause bodily injury or death to another. The statute thus shows a legislative intent to criminally punish a certain type of driving under subsection (1) while subsections (2)(b) and (2)(c) describe sentence enhancers by raising the classification of the offense. A statutory sentence enhancer is not a substantive element of the charged offense for purposes of analyzing double jeopardy and merger. Accordingly, the unit of prosecution for careless driving is the act of driving in the manner described and not the number of victims harmed by that conduct. Therefore, the district court erred by not merging Tanner’s careless driving convictions.

The judgment was reversed and the case was remanded with directions to merge one of the two careless driving convictions into the other, vacate the sentence for the merged conviction, and reinstate the judgment as to only one count of careless driving.