Attorneys for Petitioner Cynthia H. Coffman, Attorney General
Katharine Gillespie, Senior Assistant Attorney General
Attorneys for Respondent: Douglas K. Wilson, Public Defender
Sarah A. Kellogg, Deputy Public Defender Denver, Colorado
Prosecutors charged respondent Isidore Griego with attempted
reckless manslaughter and attempted second degree assault
arising out of two incidents in which Griego drove drunk but
due to traffic conditions at the time of the incidents did
not ultimately put any particular persons at risk. We now
must decide whether the requirement in the attempted reckless
manslaughter and attempted second degree assault statutes
that a defendant place "another person" at risk of
death or serious bodily injury necessitates that an actual,
discernible person be placed at risk, or if "another
person" can refer to the public at large. We conclude that
the statutes at issue require a showing of a risk to an
actual, discernible person and that a risk to the public at
large is insufficient. Holding otherwise would leave the
statutes without a clear limiting principle and would raise
equal protection concerns. Accordingly, we hold that the
court of appeals division below correctly determined that the
evidence did not support Griego's convictions for
attempted reckless manslaughter and attempted second degree
assault. See People v. Griego, 2015 COA 31, P.3d .
We therefore affirm the division's judgment.
Facts and Procedural History
The charges in this case arose from Griego's December 26,
2005 and October 7, 2006 arrests for driving under the
influence of alcohol ("DUI").
December 26, 2005 Arrest
At 9:30 p.m. on December 26, 2005, while working in Arapahoe
County, Officer Dan Hyde observed Griego driving southbound
on South Platte Canyon Road with no lights on. Officer Hyde
got behind Griego and activated his police lights.
As Officer Hyde followed, Griego turned his headlights on and
off three or four times and swerved to the left, about
halfway over the center line, before swerving back and
traveling all the way across the shoulder line. Officer Hyde
thought Griego would stop at that point, but he did not.
Rather, he again began to drift to the left. Seeing a vehicle
then approaching Griego in the northbound lane, Officer Hyde
activated his siren to warn the oncoming driver, and that
driver pulled over. As a result, the oncoming driver never
drew closer than 100 to 150 feet from Griego's
¶5 Griego then drifted back to the right side of the
road, crossed the southbound lane, and ultimately drove into
a ditch next to the road. Once in the ditch, he continued to
drive for about a block, hitting a street sign and pulling it
out of the ground along the way. He then drove back onto the
southbound lane and approached an intersection. Although the
traffic light was red, Griego did not slow down or stop.
Instead, he continued through the light and turned left.
After driving for another block and a half, he turned right
into an apartment complex parking lot, where he ultimately
hit a curb and came to a stop.
Officer Hyde then got out of his car and approached
Griego's vehicle. When he got there, he smelled a very
strong odor of alcohol and noted that Griego's speech was
so slurred that the officer could barely understand what
Griego was saying. Officer Hyde arrested Griego and gave him
a summons for DUI.
Notably, Officer Hyde was of the view that Griego's
vehicle "was never an imminent danger to the oncoming
northbound car" and that "Griego's weave into
the center lane area did not jeopardize or threaten any
oncoming traffic." As a result, the officer did not
issue a summons for reckless driving.
October 7, 2006 Arrest
Ten months later, at 2:45 a.m. on October 7, 2006, Officer
John Jones responded to a report that a person was asleep
behind the wheel of a vehicle that was parked at an
intersection in Arapahoe County. When Officer Jones
approached the car, he found Griego asleep at the wheel with
his foot on the brake, the engine running, and the car in
drive. No other cars and no pedestrians were in the vicinity
of Griego's vehicle at that time.
Officer Jones tried to get Griego's attention by pounding
on the window and yelling at Griego to wake up. After five
minutes of such pounding and yelling, Griego woke up and
rolled down the car window. When he did, Officer Jones noted
an odor of alcohol coming from Griego's breath, and the
officer arrested Griego and gave him a summons for DUI.
While both of the foregoing cases were pending, someone in
the District Attorney's office contacted Thomas Malone, a
senior investigator in that office, and asked him to
investigate the two incidents for additional charges
"outside the realm of a DUI case." This request was
apparently motivated by the fact that Griego had a large
number of prior DUI arrests.
Investigator Malone conducted what he described as a
"comprehensive" investigation into both of the
pending cases against Griego. During this investigation,
Investigator Malone met with Officer Hyde, and the two
visited the scene of the December 26, 2005 incident, where
Officer Hyde explained what he had observed that night. In
the course of this discussion, Investigator Malone
specifically asked Officer Hyde why he did not charge Griego
with reckless driving. Officer Hyde responded that
Griego's conduct did not pose an imminent threat to the
other vehicle that had approached and did not jeopardize or
threaten any other oncoming traffic.
Investigator Malone also reviewed the reports from
Griego's October 7, 2006 arrest. He did not speak with
Officer Jones about that incident, however, because he did
not feel that an interview would shed any further light on
what had occurred.
Thereafter, Investigator Malone prepared a lengthy written
report for the District Attorney's office. In this
report, he stated that he "personally did not believe it
to be appropriate" to file any charges beyond the DUI
offenses charged by the officers.
Charges and Trial
Notwithstanding the decisions made by the officers on scene
and the conclusions reached by Investigator Malone concurring
in the officers' judgments, the District Attorney decided
to charge Griego with attempted reckless manslaughter and
attempted second degree assault, both class five felonies,
but not with DUI. Thus, in the complaint and information, the
People alleged that Griego had (1) "recklessly attempted
to cause the death of any and all members of the public
in his vicinity" and (2) "recklessly attempted
to cause serious bodily injury to any and all members of
the public in his vicinity, by means of a deadly weapon,
namely: a motor vehicle." (Emphases added).
Prior to trial, Griego moved to dismiss the foregoing
charges. He contended that the People could not establish the
requisite elements of the charged crimes (and particularly
the requirement of a substantial step toward commission of
the offense) because (1) the complaint and information did
not properly specify any individual who was an alleged victim
and (2) no statements in discovery suggested that Griego had
used his vehicle as a weapon. The trial court denied
The case proceeded to trial, and at trial, the People
presented evidence pursuant to CRE 404(b) that between
September 29, 1991 and September 30, 2001, Griego had been
arrested and cited for DUI seven times. The court instructed
the jurors that they were only to consider these prior acts
for a limited purpose, namely, to "determine whether the
defendant was aware of the risk created by the charged acts
At both the end of the People's case and the close of all
of the evidence, Griego moved for a judgment of acquittal.
The court denied both motions, and the jury ultimately
convicted Griego on all counts. Thereafter, the trial court
sentenced Griego to four years in the Department of
Corrections for attempted manslaughter and two years for
attempted second degree assault, to be served concurrently.