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People v. Tun.

2021 COA 34. No. 17CA0315. Criminal Law—Driving Under the Influence—Driving Under the Influence Per Se—Failure to Display Proof of Insurance—Driving an Unregistered Vehicle—Driving After Revocation Prohibited—Driving Under Restraint——Felony—Prior Convictions—Burden of Proof—Constructive Amendment—Equal Protection—Merger.

March 18, 2021


A police officer pulled over defendant because there was no license plate or temporary permit on his car. Defendant did not produce a license or proof of insurance when requested. The officer observed signs of defendant’s intoxication, and defendant admitted to consuming 10 to 15 beers throughout the day. Defendant agreed to perform roadside sobriety tests, did not perform as a sober person would, and was arrested. Defendant’s blood alcohol test showed a content of .26 grams of alcohol per 100 milliliters.

Defendant was charged with driving under the influence (DUI) and DUI per se, failing to display proof of insurance, driving an unregistered vehicle, driving after revocation prohibited (DARP), and driving under restraint (DUR). After the jury rendered guilty verdicts, defendant’s alleged three prior DUI convictions were tried to the court. The court found defendant had the required number of prior convictions and elevated his DUI and DUI per se convictions from misdemeanors to felonies.

On appeal, defendant contended that the trial court erroneously denied his motion to treat prior qualifying convictions as elements of the charged felonies and failed to require that they be proved beyond a reasonable doubt. Proving three prior convictions is an element of a felony DUI conviction and a felony DUI per se conviction. Therefore, the district court erred by not permitting the jury to determine beyond a reasonable doubt whether defendant had three prior DUI convictions.

Defendant also argued that his felony convictions under the DUI statute, CRS § 42-4-1301, and sentencing pursuant to CRS § 42-4-1307(6.5) violated his right to equal protection because these statutes prohibit and punish the same conduct as CRS § 42-4-1307(6) but allow for the imposition of more serious penalties. However, the felony DUI statute does not violate equal protection because (1) CRS § 42-4-1301 requires a different minimum number of convictions than CRS § 42-4-1307(6); (2) CRS § 42-4-1301 requires that the qualifying prior convictions arise from “separate and distinct criminal episodes” and CRS § 42-4-1307(6) does not; and (3) CRS § 42-4-1307(6) contains, as additional qualifying prior offenses, aggravated driving with a revoked license and DUR, which do not qualify as prior convictions under CRS §42-4-1301.

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. The People conceded that a constructive amendment occurred. Because defendant was required to defend against an element that was not included in the original charge and did not have notice he would be required to do so, he was prejudiced. Therefore, the court erred, and the error was plain.

Defendant also contended that the evidence was insufficient to support his DUR and DARP convictions because the People failed to prove the “knowledge” element of each offense beyond a reasonable doubt. However, evidence of defendant’s driving record and the numerous notices of restraint sent to him sufficiently supported his convictions for DUR and DARP.

Defendant further argued that the trial court erred by failing to merge his DUR and DARP convictions because DUR is a lesser included offense of DARP, and his conviction on both counts therefore violates double jeopardy. DUR is a lesser included offense of DARP. But because the law was unsettled when the trial court ruled, no plain error occurred. Therefore, defendant’s convictions for DUR and DARP were not merged.

The convictions for felony DUI, felony DUI per se, and failing to display proof of insurance were reversed. The remaining convictions were affirmed and the case was remanded 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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