County District Court No. 13CR66 Honorable Jeffrey K. Holmes,
Cynthia H. Coffman, Attorney General, Joseph G. Michaels,
Assistant Attorney General, Denver, Colorado, for
Douglas K. Wilson, Colorado State Public Defender, Rachel K.
Mercer, Deputy State Public Defender, Denver, Colorado, for
1 What happens when someone repeatedly drinks, drives, and,
as a result, loses his or her driver's license, and then
drinks and drives again? This case presents two novel issues
that call on us to answer this question. The issues are not
novel because they have not arisen before; they are novel
because they have arisen in a new context. In recent years
the General Assembly has twice amended one applicable
statute, and our appellate courts have issued multiple,
sometimes inconsistent, decisions.
2 Addressing the issues presented here is more challenging
because of the unusual procedures followed by the trial
court. Defendant, Jason Lee Wambolt, was tried twice for
multiple offenses, and the second trial was divided into two
parts. Consequently, the two principal issues in this appeal
concern Wambolt's right to be free from double jeopardy
and whether two convictions merge. In a third issue, Wambolt
challenges the trial court's denial of his motion to
suppress certain evidence used against him.
3 We affirm in part, vacate in part, and remand with
4 In November 2013, police in Agate, Colorado, were
dispatched to respond to a potential menacing incident. The
reporting party communicated that a man riding a motorcycle
had chased him and threatened him, possibly with a weapon.
When police arrived at the scene, Wambolt admitted that he
had been the man riding the motorcycle. The officers observed
that Wambolt appeared intoxicated, and he confessed that he
had been drinking prior to riding the motorcycle.
5 Wambolt was eventually charged with aggravated driving
after revocation prohibited (ADARP), driving under the
influence (DUI), driving under restraint (DUR), and two
counts of violating a civil protection order. He did not
dispute that his driver's license had been revoked or
that he had been deemed a habitual traffic offender. However,
the defense's theories of the case were that Wambolt did
not know that his driver's license had been previously
revoked and, as to the DUI charge, that he drank only after
he drove his motorcycle. At the first trial, the jury was
instructed on the elements of driving after revocation
prohibited (DARP) and given a special interrogatory verdict
form on the ADARP charge. The jury returned guilty verdicts
on DARP and DUR, but hung on the DUI charge, and thus did not
complete the ADARP special interrogatory. At the second
trial, Wambolt was convicted of driving while ability
impaired (DWAI), and the second jury completed an
interrogatory finding the People had proved ADARP.
Ultimately, the trial court entered convictions on ADARP,
DUR, and DWAI, and Wambolt later pleaded guilty to the
protection order violations.
6 Wambolt appeals the judgment of conviction entered on the
jury verdicts finding him guilty of ADARP, DUR, and DWAI.
Specifically, he contends that (1) he was tried twice for the
same offense in violation of double jeopardy protections; (2)
the trial court plainly erred in entering convictions for DUR
and DARP because those convictions should have merged; and
(3) the trial court's erroneous denial of his motion to
suppress requires reversal. We agree with his first
contention and therefore vacate the conviction for ADARP.
However, we disagree with his final two contentions and thus
affirm in all other respects.
7 Wambolt contends that he was unconstitutionally tried twice
for the same offense when, after the first jury did not
complete the ADARP special interrogatory, the People retried
him on that charge. We agree that the second prosecution was
in violation of the Double Jeopardy Clauses of the United
States and Colorado Constitutions and therefore vacate the
ADARP conviction and remand for the trial court to reinstate
the first jury's verdict.
8 The Double Jeopardy Clauses of the United States and
Colorado Constitutions protect an accused against being twice
placed in jeopardy for the same crime. U.S. Const. amends. V,
XIV; Colo. Const. art. II, § 18. Axiomatically, the
federal Double Jeopardy Clause "protects against a
second prosecution for the same offense after conviction. And
it protects against multiple punishments for the same
offense." Brown v. Ohio, 432 U.S. 161, 165
(1977) (quoting North Carolina v. Pearce, 395 U.S.
711, 717 (1969)). Wambolt invokes both of these protections.
We review double jeopardy claims de novo. People v.
Frye, 2014 COA 141, ¶ 30, 356 P.3d 1000, 1006.
9 As we noted at the outset, this case presents a unique set
of circumstances, both because of the unusual way in which
the prosecution proceeded and because the relevant statutes
and case law have changed over the course of the last few
years. We will therefore set forth the facts in some detail,
as well as the evolution of the law.
10 As noted, Wambolt was charged with ADARP under section
42-2-206(1)(b), C.R.S. 2013, along with DUI and DUR. Wambolt
was first tried on these charges in July 2014.
11 At the beginning of voir dire, the trial court instructed
the jury that the People had charged Wambolt with ADARP.
However, in the final jury instructions, the jury was
instructed that Wambolt was charged with DARP, not ADARP. The
jury also received an elemental instruction on DARP, not
12 Additionally, the jury was given a special interrogatory
stating that it was to be completed only if the jury found
Wambolt guilty of DARP and either DUI or DWAI. There were then
two possible options: first, "We, the jury, find that it
has been proven beyond a reasonable doubt that the defendant
committed the crimes of [DARP] AND either [DUI] or the lesser
offense of [DWAI] as part of the same criminal episode";
and, second, "We, the jury, do not so find."
13 After deliberating for almost seven hours, the jury sent a
note to the trial court stating that it had reached a verdict
on the DARP and DUR charges, but could not reach a verdict as
to the DUI charge. The jury did not complete the special
interrogatory. The court declared a mistrial on the DUI
14 After the jury was dismissed, the prosecutor argued that
the jury had returned "only . . . half of one of the
verdicts" because the jury had found Wambolt guilty of
DARP, but not ADARP. The trial court asked the parties to
address whether Wambolt could be retried on the ADARP charge.
After a hearing, the trial court asked that the parties brief
15 In response, the People submitted a "Memorandum
regarding operation of the same criminal episode penalty
enhancer under C.R.S. § 42-2-206(1)(b)(I)(A) and
(B)." The People argued that the aggravated portion of
ADARP was a sentence enhancer, not a substantive element of
the offense, and thus resubmitting the ADARP charge to the
jury would not violate the Double Jeopardy Clauses. The
People concluded, "There is only one offense:
[DARP]." However, in the alternative, the People argued
that even assuming DARP was a lesser included offense of
ADARP, retrial on the ADARP charge was permissible because
the jury hung on that count.
16 In reply, Wambolt argued that DARP was a lesser included
offense of ADARP and that section 18-1-301(1)(a), C.R.S.
2017, precluded retrial on a greater offense after conviction
of a lesser offense. However, Wambolt argued in the
alternative that if the trial court permitted the People to
retry the ADARP count, the second jury should be required to
decide every element of the offense to protect his right to
have a single tribunal decide that charge. See
People v. Segovia, 196 P.3d 1126, 1133 (Colo. 2008)
("Double jeopardy prevents the government from
repeatedly trying to obtain a conviction against an accused,
but also protects a defendant's right to have a verdict
returned by a particular jury.").
17 In a thorough bench ruling issued before the second trial,
the trial court concluded that the enumerated aggravating
offenses in section 42-2-206(1)(b)(I), C.R.S. 2013,
established a sentence enhancer of DARP. It determined that
Wambolt could be constitutionally retried on ADARP and
announced that the second trial would be conducted in two
phases. First, the jury would decide only the DUI charge. If
it returned a guilty verdict, the same jury would then
consider the ADARP charge, again via a special interrogatory.
The trial court stated:
[T]he jury will not be asked to find guilt or not guilt as to
DARP, but, rather, to make a finding with regard to the
interrogatory. So they will be given the elements. They will
be told that they must find beyond a reasonable doubt that
the elements have been established for purposes of a
determination that -- of a "yes" decision regarding
the interrogatory, that is, there has been proof beyond a
reasonable doubt the elements of DARP, of DUI, and that they
were part of the same criminal proceeding. But the jury will
not be asked to return a verdict, again, regarding the
offense of DARP.
18 In October 2014, the second trial proceeded according to
that bench ruling. During the first "phase," the
jury found Wambolt guilty of DWAI, a lesser included offense
of DUI. Then, the trial court revealed to the jury that it
would consider a second charge, which the trial court
described as "the offense of driving after revocation
prohibited and driving with ability impaired as part of the
same criminal episode."
19 Once again, the jury was not given an ADARP instruction.
Instead, the jury was given an instruction listing the
elements of DARP. Additionally, the jury was given an
interrogatory, again with two possible choices: first,
"We, the jury, unanimously find that the prosecution has
proven beyond a reasonable doubt that defendant committed all
the elements of [DARP], as defined in [the elemental
instruction], and that the prosecution has proven beyond a
reasonable doubt that defendant committed [DARP] and [DWAI]
as a part of the same criminal episode"; and, second,
"We, the jury, do not so find." The jury checked
the first line of the special interrogatory.
20 As a result, the trial court entered convictions for
ADARP, DUR, and DWAI.
21 Section 42-2-206, the statute establishing DARP and ADARP,
has been amended since Wambolt was charged and tried.
22 The definition of DARP has not changed: "Any person
found to be an habitual offender, who operates a motor
vehicle in this state while the revocation of the department
prohibiting such operation is in effect, commits a class 1
misdemeanor." § 42-2-206(1)(a)(I), C.R.S. 2017;
see also § 42-2-206(1)(a)(I), C.R.S. 2013.
23 In contrast, the definition of ADARP has been amended.
Prior to legislative amendments in 2015, the statute stated
that a person committed ADARP "if he or she is found to
be an habitual offender and thereafter operates a motor
vehicle in this state while the revocation of the department
prohibiting such operation is in effect and, as a part of the
same criminal episode, also commits . . . DUI or DUI per se;
[or] DWAI." § 42-2-206(1)(b)(I)(A)-(B), C.R.S.
2013. Under that version of the statute, ADARP was a class 6
felony. § 42-2-206(1)(b)(II), C.R.S. 2013.
24 However, subsections 206(1)(b)(I)(A) and (B) were repealed
in 2015. See Ch. 262, sec. 4, § 42-2-206(1)(b),
2015 Colo. Sess. Laws 996. Thus, under the statute in effect
today, Wambolt could not have been convicted of ADARP on the
basis of the aggravating DWAI offense. ADARP is now a class 1
misdemeanor. § 42-2-206(1)(b)(II), C.R.S. 2017.
25 Additionally, a 2010 amendment to section 42-2-206
clarified that, if a defendant was convicted of both ADARP
and the aggravating offense of DUI, DUI per se, or DWAI, the
convictions should not merge. Ch. 258, sec. 3, §
42-2-206(1)(b), 2010 Colo. Sess. Laws 1158; see
§ 42-2-206(1)(b)(III), C.R.S. 2017. That provision
superseded several decisions from divisions of this court
that had held that the underlying aggravating offense should
merge into an ADARP conviction. See People v.
Valdez, 2014 COA 125, ¶¶ 28-32, 411 P.3d 94,
100-01 (summarizing cases). This provision was also amended
in 2015 to address the repeal of section 42-2-206(1)(b)(I)(A)
and (B). Ch. 262, sec. 4, § 42-2-206(1)(b)(III), 2015
Colo. Sess. Laws 996; see §
42-2-206(1)(b)(III)(A) ("If a defendant is convicted of
[ADARP] based upon the commission of DUI, DUI per se, or DWAI
. . . as that crime existed before August 5, 2015 . . . [t]he
court shall convict and sentence the offender for each
offense separately . . . .").
26 Just as the relevant statutory law has changed, so too has
the relevant case law.
27 First, our appellate courts have disagreed whether the
aggravating offenses set forth in ADARP are sentence
enhancers to the offense of DARP or, in the alternative,
whether they are elements of the offense of ADARP.
28 In People v. Wilson, a division of this court
rejected the People's contention that the aggravating
offenses establishing ADARP are "merely sentence
enhancers" to the offense of DARP and instead held that
section 42-2-206(1)(b) sets forth the elements of the
separate crime of ADARP, which includes six enumerated
aggravating offenses. 114 P.3d 19, 26 (Colo.App. 2004). Thus,
the Wilson division concluded that the aggravating
offenses listed in that subsection are essential elements of
the crime of ADARP. Id.
29 In contrast, another division agreed with the People that
the aggravating offenses were sentence enhancers of DARP.
People v. Zubiate, 2013 COA 69, ¶ 40, 411 P.3d
757, 765, aff'd, 2017 CO 17, 390 P.3d 394.
Specifically, in Zubiate, the division held that,
because under the pre-2015 version of section 42-2-206
"the other driving offenses listed in section
42-2-206(1)(b)(I) raise[d] DARP's offense level, they
[we]re sentence enhancers." Id. at ¶ 40,
411 P.3d at 765. The supreme court affirmed the
Zubiate division's holding, but did not address
whether DARP and ADARP were distinct offenses.
30 Second, apart from the specific issue of whether DARP is a
lesser included offense of ADARP, the case law has changed
with regard to the test for whether one offense is a lesser
included of another. In 2017, the supreme court decided a
series of cases, including Zubiate, in an effort to
clarify the statutory elements test. The test, as stated in
Reyna-Abarca v. People, is as follows: "[A]n
offense is a lesser included offense of another offense if
the elements of the lesser offense are a subset of the
elements of the greater offense, such that the lesser offense
contains only elements that are also included in the elements
of the greater offense." 2017 CO 15, ¶ 3, 390 P.3d
816, 818; see also People v. Rock, 2017 CO 84,
¶ 16, 402 P.3d 472, 478 (clarifying the meaning of
"contains" as used in Reyna-Abarca),
reh'g denied (Oct. 2, 2017).
31 Third, double jeopardy analysis from divisions of this
court has also seen recent change. Two decisions are of
particular relevance here. In People v. Aguilar, a
division of this court held, as a matter of first impression,
that the Double Jeopardy Clauses do "not bar retrial of
a greater offense when a jury deadlocks on that charge but
convicts on a lesser included offense." 2012 COA 181,
¶ 17, 317 P.3d 1255, 1259. More recently, in People
v. Beller, the division concluded that the Double
Jeopardy Clauses did not bar retrying a defendant on a felony
murder charge when a first jury acquitted him of the
predicate offenses of aggravated robbery, but hung on the
felony murder count. 2016 COA 184, ¶ 2, 411 P.3d 1145,
1148. The Beller division relied on a
"continuing jeopardy" theory, reasoning that
"the greater and lesser included offenses were tried
together under the same indictment, jeopardy terminated as to
one of the offenses, but did not end on the charge sought to
be retried." Id. at ¶ 24, 411 P.3d at 1151
(quoting United States v. Jose, 425 F.3d 1237, 1245
(9th Cir. 2005)). In so holding, the Beller division