and County of Denver District Court No. 13CV32833 Honorable
Kenneth M. Laff, Judge
Harden Law LLP, Kurt Zaner, Marc Harden, Elliot Singer,
Denver, Colorado; Levin Rosenberg PC, Michael J. Rosenberg,
Nelson A. Waneka, Denver, Colorado, for Plaintiff-Appellee.
Campbell, Latiolais & Averbach, LLC, Colin C. Campbell,
Kirstin M. Dvorchak, Denver, Colorado, for
1 Abdul Alhilo died in a collision between his motorcycle and
a car driven by defendant, Daniel Kliem. The deceased's
mother, plaintiff Naema Alhilo, brought a wrongful death
action against Kliem. The jury allocated fifty-five percent
of the fault to Kliem and forty-five percent to the deceased.
It awarded $750, 000 in noneconomic damages and $1, 500, 000
in exemplary damages. Kliem appeals the judgment entered on
the verdict. We affirm.
Background and Procedural History
2 The accident occurred on Federal Boulevard in Denver. Kliem
drove out of a car wash across the southbound lanes,
intending to turn left and drive north. The deceased, going
south, sought to avoid a collision by moving to the inside
lane, but still hit the side of Kliem's car. He died at
3 When the accident occurred, the deceased was traveling at
an estimated speed of between seventy-five and eighty-six
miles per hour. The speed limit was forty miles per hour. His
driving privileges had been suspended several years earlier
based on his status as a habitual traffic offender (HTO).
4 After the collision, Kliem drove off. He stopped his car a
few blocks away and fled on foot, despite having been
injured. From the car, the police recovered several beer cans
- three of them opened - a bottle of vodka, and a pipe
containing marijuana. The crash occurred on June 26th and
Kliem turned himself in on June 28th. Several years earlier,
he had been convicted of two driving while impaired (DWI)
5 During pretrial proceedings, the parties raised, and the
trial court ruled on, all of the evidentiary issues argued in
6 After the jury returned its verdict, plaintiff calculated
Kliem's share of the noneconomic damages at $412, 500 and
sought judgment in that amount, correctly pointing out that
it was less than the cap in section 13-21-203, C.R.S. 2016.
Kliem responded that the court should apply the cap first,
then apportion liability, which would result in a judgment of
$239, 838.50. The trial court agreed with plaintiff. The
court denied Kliem's post-trial motions for a judgment
notwithstanding the verdict on exemplary damages, alleging
insufficient evidence, and for a new trial on liability,
alleging evidentiary errors.
7 Kliem contends the trial court made three evidentiary
errors: excluding evidence of the deceased's driving
record and his status as an HTO; admitting evidence of
Kliem's two prior DWI offenses; and admitting evidence
that Kliem fled the accident scene. We address each one in
turn but discern no ground for reversal.
Standard of Review and Law
8 Evidentiary rulings are reviewed for an abuse of
discretion. Murray v. Just In Case Bus. Lighthouse,
LLC, 2016 CO 47M, ¶ 16. "[A] trial court
necessarily abuses its discretion if it bases its ruling on
an erroneous view of the law or on a clearly erroneous
assessment of the evidence." People v. Segovia,
196 P.3d 1126, 1129 (Colo. 2008).
9 To begin, under CRE 401, evidence is logically relevant if
it has "any tendency to make the existence of [a
material fact] more probable or less probable than it would
be without the evidence." In general, then, "[a]ll
relevant evidence is admissible, " unless the United
States Constitution, the Colorado Constitution, a state
statute, the evidence rules, or other rule prescribed by the
supreme court prohibits its admission. CRE 402;
Murray, ¶ 19. Even so, relevant evidence may be
excluded "if its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of
cumulative evidence." CRE 403. In weighing those dangers
and considerations, the proffered evidence "should be
given its maximal probative weight and its minimal
prejudicial effect." Murray, ¶ 19 (quoting
People v. Dist. Court, 869 P.2d 1281, 1285 (Colo.
Deceased's Driving Record and His HTO Status
10 Plaintiff moved in limine to preclude evidence of the
deceased's driving record and his status as an HTO,
arguing that this evidence - while uncontroverted - was not
relevant. The trial court agreed and granted the motion. Now
Kliem argues, as he did below, that the exception in section
42-4-1713, C.R.S. 2016, required the trial court to admit
this evidence. We read the statute differently and conclude
that the trial court acted within the scope of its broad
Statutory Standard of Review
11 Whether section 42-4-1713 requires the admission of a
driver's HTO status and associated driving record in any
civil trial is a question of statutory interpretation subject
to de novo review. Granite State Ins. Co. v. Ken Caryl
Ranch Master Ass'n, 183 P.3d 563, 567 (Colo. 2008).
12 When construing a statute, a court strives to
"ascertain and effectuate the legislative intent, which
is to be discerned . . . from the plain and ordinary
meaning" of the text. People v. Frazier, 77
P.3d 838, 839 (Colo.App. 2003), aff'd, 90 P.3d
807 (Colo. 2004). If the language is plain, the court must
apply the text as written and not force or strain its
interpretation. Williams v. Dep't of Pub.
Safety, 2015 COA 180, ¶ 22. "Only where the
statute's language is ambiguous may we turn to other
principles of statutory construction and consider the
consequences of a certain construction, the end to be
achieved by the statute, and legislative history."
People v. Vigil, 2013 COA 102, ¶ 14 (citing
Bostelman v. People, 162 P.3d 686, 690 (Colo.
13 Section 42-4-1713 provides:
Except as provided in sections 42-2-201 to 42-2-208, no
record of the conviction of any person for any violation
of this article [Article 4 - the "Regulation of Vehicles
and Traffic"] shall be admissible as evidence in any
court in any civil action.
(Emphasis added.) See Bullock v. Wayne, 623
F.Supp.2d 1247, 1254 (D. Colo. 2009) (Section 42-4-1713
"prohibits any mention of convictions for violating the
vehicle and traffic statutes in Article 4.").
14 More than fifty years ago, our supreme court said about a
prior version of section 42-4-1713: "the intent and
purpose of such a statute is too obvious to require
discussion." Ripple v. Brack, 132 Colo. 125,
129, 286 P.2d 625, 627 (1955). Since then, no Colorado court
has examined this statute in depth.
15 Still, in Bullock, 623 F.Supp.2d at 1256, the
United States District Court expounded on that obviousness.
It explained that because traffic convictions "tend to
be minor in nature, informally adjudicated, and often
uncontested, " by enacting section 42-4-1713,
"[t]he Colorado legislature presumably did not want
these relatively small infractions to have grave consequences
in civil actions where significantly more could be at
stake." The court further explained that by prohibiting
evidence of these convictions in civil actions, section
42-4-1713 "ameliorates docket congestion in traffic
courts." Bullock, 623 F.Supp.2d at 1256. This
is so because "were traffic convictions to carry with
them the threat of res judicata, the incentive to fight a
traffic ticket would grow dramatically and, along with it,
the caseload of traffic courts." Id.; see
Warren v. Marsh, 11 N.W.2d 528, 531 (Minn. 1943)
(Because "often citizens will plead guilty to minor
offenses under the traffic act rather than suffer loss of
valuable time and the expense of a trial . . . the
legislature apparently concluded that a plea of guilty should
not prejudice one in any way in any civil proceeding, even
one involving the same facts out of which the violation of
the traffic act arose.") (cited with approval in
Ripple, 132 Colo. at 129, 286 P.2d at 627).
16 Kliem concedes that section 42-4-1713 broadly prohibits
evidence of Article 4 convictions in civil actions. Even so,
he argues that the exception ("as provided in sections
42-2-201 to 42-2-208") allows a party in any
civil action "to present evidence that the adverse party
has been deemed a danger to other motorists by virtue of the
party's prior conviction as an habitual traffic
offender." Here, because the proffered evidence
consisted of both the deceased's status as an HTO and his
associated driving convictions, separate analysis is
required. But this case does not support admitting either
type of evidence.
17 First, as to the deceased's convictions that led to
his HTO status, the text unambiguously limits the exception:
"as provided in sections 42-2-201 to 42-2-208."
Id. The cross-referenced sections make up the HTO
statute, which "defin[es] who is an habitual offender,
authority for revocation, appeals, and other related
matters." Lawrence v. Taylor, 8 P.3d 607, 610
18 The administrative appeal described in section 42-2-203
for challenging revocation of a driver's license based on
a determination of HTO status by the Department of Revenue,
Motor Vehicles Division (DMV), is a civil proceeding.
State v. Laughlin, 634 P.2d 49, 51 (Colo. 1981). But
without the exception in section 42-4-1713, evidence of
Article 4 convictions would be prohibited. And without this
evidence, a hearing officer could not decide "[t]he only
issue to be determined at the license revocation hearing . .
. whether the licensee has sustained the requisite number of
convictions for specified traffic offenses within the
prescribed period of time." Id.; see also
People v. McKnight, 200 Colo. 486, 490, 617 P.2d 1178,
1181 (1980) (An HTO is defined "as one having a
designated number of convictions for specified traffic
offenses within a prescribed period of time.").
19 Thus, providing an exception under these sections - to
allow evidence of Article 4 convictions in an HTO
proceeding - is necessary. By any fair reading, the
exception does not apply to any other civil action. Nor
should it be interpreted more broadly. See Brodak v.
Visconti, 165 P.3d 896, 898 (Colo.App. 2007) (When a
"statute establishes a general rule, subject to [an]
exception, we must construe the exception narrowly to
preserve the primary operation of the general rule.").
20 Second, the DMV determination that a driver is an HTO does
not itself constitute a separate conviction. Rather, under
the HTO statute, the DMV has the authority to
"immediately revoke the license of any person whose
record brings such person within the definition of an
habitual offender . . . ." § 42-2-203, C.R.S. 2016.
In doing so, the DMV must "immediately notify the
licensee, " who, in turn, may request a hearing. §
42-2-125(3), (4), C.R.S. 2016.
21 But at that hearing, "[t]he hearing officer's
determination is made by reference to the licensee's
driving record, as reflected in the department's
records." Laughlin, 634 P.2d at 51. And while
"it is the licensee's responsibility to challenge
alleged mistakes in the records of the department as to his
driving history, " the licensee "may not relitigate
the issue of guilt as to the offenses shown on his
22 Given all this, allowing evidence of the Article 4
convictions in any other civil action - merely because those
convictions formed the basis of a person's HTO status -
would defeat the purpose of section 42-4-1713, as explained
in Bullock, 623 F.Supp.2d at 1254. Specifically,
such an interpretation would allow evidence of traffic
convictions that may have been uncontested and thus invite
challenges to many traffic convictions that could later have
serious consequences in civil actions.
23 Turning to the admissibility of a driver's status as
an HTO, that status is an administrative determination, not a
separate or additional conviction. Kliem cites no authority,
nor are we aware of any in Colorado, treating such an
administrative determination as a conviction. See
McKnight, 200 Colo. at 493, 617 P.2d at 1183 ("The
administrative proceeding to revoke a driver's license
because of habitual traffic offender status is a civil
one."); cf. People v. Kiniston, 262
P.3d 942, 944 (Colo.App. 2011) (discussing various uses of
"conviction"). Thus, the broad prohibition in
section 42-4-1713 does not limit evidence of HTO status.
Instead, the admissibility of HTO status evidence remains
subject to the rules of evidence, primarily CRE 401 and CRE
403. And here, both rules weigh against admission.
24 As to CRE 401, the trial court found that evidence of the
deceased's status as an HTO was not relevant. This
finding is supported by the fact that evidence of the
deceased's fault - traveling at nearly double the posted
speed limit - was undisputed. Thus, even accepting
Kliem's position that the HTO statute reflects a
legislative determination of likely future irresponsible
driving behavior, whatever inference of irresponsibility the
jury might draw from evidence of the deceased's HTO
status would have added very little. And the verdict shows
that the jury gave considerable weight to the undisputed
evidence of the deceased's proportionate fault.
25 The trial court did not address CRE 403. However, even
assuming that status evidence had some minimal probative
value, admission of evidence of HTO status - and its
attendant license revocation - might have led the jury to
conclude that had the deceased abided by the restriction, he
would not have been operating his motorcycle. And as a
result, the accident would never have occurred. But this
inference is legally impermissible. See Weaver v.
Blake, 454 F.3d 1087, 1094 (10th Cir. 2006)
("Colorado's appellate courts appear to follow the
majority rule that whether or not a person has a valid
driver's license is irrelevant to the question whether
that person was driving negligently at the time of the
accident."). Thus, any probative value was outweighed by
the risk of unfair prejudice.
26 In sum, we conclude the trial court did not abuse its
discretion by precluding evidence of the deceased's