and County of Denver District Court No. 09CR510 Honorable
Robert L. McGahey, Jr., Judge
Cynthia H. Coffman, Attorney General, Rebecca A. Jones,
Senior Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Andrew C.
Heher, Deputy State Public Defender, Denver, Colorado, for
1 The general background appears in People v.
Jacobson, 2014 COA 149 (Jacobson I), which
reversed defendant's conviction for failure to poll the
jury about exposure to extraneous, prejudicial information.
In People v. Jacobson, 2017 CO 28 (Jacobson
II), the supreme court reversed Jacobson I and
remanded the case to us, albeit without direction.
2 Before our mandate was issued, defendant, Sandra L.
Jacobson, asked us to decide two issues that had not been
resolved in Jacobson I. She correctly pointed out
that either of these issues could lead to reversal of the
judgment of conviction entered on jury verdicts finding her
guilty of vehicular homicide, driving under the influence
(DUI), and other related charges, arising from a collision
between her truck and a taxi cab on Pena Boulevard.
3 We granted her request but now affirm the judgment of
Trial Court Did Not Err in Failing Sua Sponte to Instruct the
Jury on the Statutory DUI Affirmative Defense of Having
Consumed Alcohol Between the Time Defendant Stopped Driving
and the Blood Alcohol Content (BAC) Testing Occurred
4 Defendant testified at trial. She described herself as
having been "stone cold sober" when the accident
occurred at about 10:30 a.m. But she said that on arrival at
the Denver International Airport's cargo terminal some
fifteen minutes later, she drank a Vitamin Water bottle that
contained one-half 99 proof schnapps.
5 Two police officers contacted defendant at 10:58 a.m.
Neither noticed any indicia of alcohol intoxication. Although
defendant remained in police custody and interacted with
other officers, not until about 3:00 p.m. did an officer
notice bloodshot, watery eyes, and slurred speech. This
officer administered a roadside sobriety test, which
defendant failed. Then he took her to a hospital for a blood
6 Samples were taken at 3:55 p.m., 5:00 p.m., and 6:01 p.m.
The test results showed that her BAC was .164, .143, and
.121, respectively. Based on these results, the prosecution
presented expert testimony that defendant's BAC had been
.274 at the time of the accident.
7 Defense counsel did not request the trial court to instruct
the jury on the DUI affirmative defense of having consumed
alcohol between the time that she stopped driving and when
the testing occurred.
Standard of Review and Law
8 Where a defendant did not request an affirmative defense
instruction, review is limited to plain error. See,
e.g., People v. Griffin, 224 P.3d 292, 298
(Colo. App. 2009). Plain error permits an appellate court
"to correct particularly egregious errors."
Wilson v. People, 743 P.2d 415, 420 (Colo. 1987).
The error must be "'so clear-cut, so obvious,' a
trial judge should be able to avoid it without benefit of
objection." People v. Ujaama, 2012 COA 36,
¶ 42 (quoting People v. Taylor, 159 P.3d 730,
738 (Colo. App. 2006)).
9 Even then, an appellate court will reverse only if a
defendant shows "that the court committed an obvious and
substantial error that undermined the fundamental fairness of
the trial so as to cast serious doubt on the reliability of
the judgment of conviction." Griffin, 224 P.3d
at 298. To be sure, reversals under plain error "must be
rare to maintain adequate motivation among trial participants
to seek a fair and accurate trial the first time."
Hagos v. People, 2012 CO 63, ¶ 23.
10 "We review de novo the question of whether a jury
instruction accurately informed the jury of the governing
law." People v. Carbajal, 2014 CO 60, ¶
10. "It is the duty of the trial court to 'correctly
instruct the jury on all matters of law for which there is
sufficient evidence to support giving
instructions.'" Id. (quoting Cassels v.
People, 92 P.3d 951, 955 (Colo. 2004)).
11 Section 42-4-1301(1)(a), C.R.S. 2016, defines DUI.
According to section 42-4-1301(2)(a),
if a defendant presents some credible evidence, that the
defendant consumed alcohol between the time that the
defendant stopped driving and the time that testing occurred,
such issue shall be an affirmative defense, and the
prosecution must establish beyond a reasonable doubt that the
minimum 0.08 blood or breath alcohol content required in this
paragraph (a) was reached as a result of alcohol consumed by
the defendant before the defendant stopped driving.
(Emphasis added.) The parties have not cited a case, nor have
we found one, interpreting this language.
12 Despite this dearth of precedent, the following
uncontroverted authorities are informative.
. "[P]roof of vehicular homicide under
section 18-3-106(1)(b)(I) required proof that defendant
operated a vehicle while under the influence of alcohol or
drugs, or a combination thereof." People v.
Grassi, 192 P.3d 496, 500 (Colo. App. 2008).
. "[T]o present an affirmative defense
for jury consideration, the defendant must present 'some
credible evidence' on the issue involving the claimed
defense." People v. Garcia, 113 P.3d 775,
783-84 (Colo. 2005) (citing § 18-1-407, C.R.S. 2016).
. Whether a defendant has met this burden is
a question of law, subject to de novo review. Id.
. "Whatever questions may remain in
federal law concerning precisely when an affirmative defense
'controverts,' or 'does negate' an element of
an offense, long before the federal constitution was
construed to impose limitations on the common law rule
requiring criminal defendants to prove affirmative defenses,
we in this jurisdiction interpreted the state due process
clause to do so." Montoya v. People, 2017 CO
40, ¶ 24.
13 On this much, the parties largely agree. As to the
intersection between plain error and omission of a statutory
affirmative defense, however, they differ. But we decline to
resolve that difference because we conclude that the trial
court did not err in failing sua sponte to instruct on the
statutory affirmative defense.
14 To begin, the Attorney General asserts that defendant
invited any error. The sole bases for this assertion are
defense counsel's request for "an affirmative
defense instruction based on intervening cause," which
was not given, and his later statement to the trial court
that he did not request any further instructions. But the
possibility of instructing on the statutory affirmative
defense had never been discussed. Without more, we cannot
apply invited error. See People v. Stewart, 55 P.3d
107, 119 (Colo. 2002) (holding, where defense counsel had
tendered one instruction but not another, "a nontactical
instructional omission generally should be reviewed for plain
15 The Attorney General does not dispute that defendant
presented sufficient evidence to warrant an instruction on
the affirmative defense. And with good reason. The burden to
produce sufficient evidence is "exceedingly low,"
making preclusion of an affirmative defense appropriate only
when there is "simply no evidence . . . in th[e]
record." People v. Platt, 170 P.3d 802, 806
(Colo. App. 2007), aff'd, 201 P.3d 545 (Colo.
2009). The "scintilla of evidence" standard is so
low that "the evidence necessary to justify an
affirmative defense instruction may come solely from the
defendant's testimony, even if the evidence is
improbable." People v. Johnson, 2013 COA 122,
¶ 35. ¶ 16 Instead, according to the Attorney
General, "by proving the elements of vehicular homicide
(DUI) beyond a reasonable doubt, the prosecution also
disproved the affirmative defense beyond a ...